By: Jacob Kipp

The public’s sentiment toward sex offenders has long been overwhelmingly negative, fueling an ever-increasing number of legal restrictions. Perhaps the most reviled of all offenders are child molesters, which  have been the target of national registration programs (though such registries are often over-inclusive). Those registries are widely used to restrict sex offenders from being anywhere near schools, parks, or youth centers. But what happens when sex offenders want to exercise their right to vote and are not allowed into their polling place because it happens to be a school?

Brian Valenti, a citizen of Indiana’s Blackford County and an eligible voter, is a registered sex offender. In 1993, Valenti was convicted of lewd acts with a child under 14 in Los Angeles County. Now 48, he lives in Hartford City, Indiana, where he is prohibited from taking his daughter to the bowling alley or even to church, and now, under the newly-amended Indiana Code § 35-42-4-14, he may not enter his polling place to cast a ballot.

Indiana’s prohibition on sex offenders is not unique. The state’s western neighbor, Illinois, has had a comparable statute barring sex offenders from voting in schools since 2007. Two other Midwestern states have made unsuccessful attempts to enact similar laws:  a Missouri bill never left committee, and, despite an Ohio lawmaker’s best intentions, no Ohio bill has emerged to stop sex offenders from voting at schools. Polling place restrictions are not confined to the Midwest. For example, in New York similar legislation was proposed, but that, too, ultimately failed.

Other states have instituted a myriad of requirements and restrictions on the way in which sex offenders must act when entering a school to vote. In North Carolina, sex offenders must notify the school principal of their registered offender status before entering. Connecticut ordinances (typically on the local level) permit sex offenders to enter a school to vote as long as the offender leaves immediately after voting. Even more permissive is Idaho’s statute, which does not explicitly require sex offenders to immediately exit. Needless to say, there is hardly a consensus among the states regarding how to treat sex offenders whose polling place is a school.

Indiana’s and Illinois’s statutes are undoubtedly the most restrictive to be enacted.. Illinois’s statute allows absentee or early voting as potential voting avenues for affected sex offenders. Indiana’s statute, alternatively, only states that a sex offender commits a felony if he or she enters a school to vote. Further investigation into Indiana’s election law reveals only one solution for affected voters: absentee ballot by mail (Indiana Code § 3-11-10-24). Absentee-in-person voting – essentially Indiana’s version of early voting – is, under Indiana Code § 3-1-4-1, only available to those whom are otherwise able to vote in person. But the affected sex offenders cannot vote in person on Election Day, so they cannot vote absentee-in-person either.

This August, due to the highly-restrictive nature of the Indiana law, the ACLU of Indiana brought suit on behalf of Brian Valenti and all other Indiana voters who are poised to be blocked from school polling places this November. In its complaint, the ACLU claims that Indiana Code § 35-42-4-14 violates the U.S. Constitution’s First and Fourteenth Amendments. The ACLU alleges that Indiana’s law imposes numerous burdens, including: an overly-onerous absentee voting procedure; an increased chance for ballot rejection or a failure to count due to mistake or fraud; and a missed opportunity to interact with the election officials and candidates often seen at polling places on Election Day. ,

Though the ACLU highlights various burdens imposed by Indiana’s law, those burdens may not be relevant on the merits of the case unless strict scrutiny review is applied. In Burdick v. Takushi, the Supreme Court noted that strict scrutiny does not apply to voting rights issues unless the involved restrictions are severe. The Court went on to say that state “regulatory interests are generally sufficient to justify . . .[a law that] imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters[.]” The matter in Burdick (Hawaii’s ban on write-in ballots) is notably different from that of the ACLU suit in Indiana, and may provide a foothold for the ACLU as the case proceeds. Not only are the Indiana restrictions potentially “severe” enough to warrant strict scrutiny, but the law is necessarily discriminatory, impacting only sex offenders with schools as polling places. Nevertheless, Indiana’s interest is arguably more compelling than Hawaii’s interest in Burdick. Whereas Hawaii’s law served a mere regulatory interest, Indiana’s law is designed to protect the welfare of children. But is Indiana’s concern legitimate? The ACLU points to Indiana Code § 3-11-8-15(a) (stating that minors may only enter a polling place if accompanied by a voter) as evidence that Indiana’s law does not actually serve a compelling state interest.

Ultimately, this case will likely come down to the perceived severity of the restrictions in § 35-42-4-14. The ACLU faces an uphill battle; not long ago Indiana voter ID restrictions, which have been shown to disparately impact minorities, were upheld as “reasonable, nondiscriminatory restrictions.”  If, however, the district court finds the ACLU’s argument compelling and decides to apply strict scrutiny, then Indiana would need to show that its law is narrowly tailored to serve a compelling interest. That may be hard for Indiana to accomplish, considering that only 12 to 24% of sex offenders will re-offend (most of which exhibit antisocial tendencies, not pro-social behavior like voting), not to mention the growing consensus that sex offender laws in general are overreaching, ineffective, and needlessly expensive.

 

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