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Gaming IndianaThe quirky state voting law that could affect Tuesday's primary.

By Richard L. Hasen
Posted Tuesday, April 29, 2008, at 4:47 PM ET

Set aside, for a moment, the Supreme Court's decision Monday upholding Indiana's voter-identification law. It's another little-noticed election law in the state that could come into play during next week's Clinton-Obama contest for the Democratic presidential nomination. Republicans and independents can vote in Indiana's Democratic primary. But this quirky state law gives voters the right to challenge other voters at the polls for not being sufficiently loyal to the political party in whose primary they are voting.

According to polls, the contest between Hillary Clinton and Barack Obama is close in Indiana, much closer than the other primary that day in North Carolina. Meanwhile, Rush Limbaugh has been urging his Republican listeners to cross over and vote for Hillary Clinton, in order to muddle the Democratic field and tilt the race toward a candidate who Limbaugh thinks would lose to John McCain. The Obama and Clinton campaigns have also been courting these Republicans and independents. It's not clear they'll want to turn around and challenge some of them on the day of the primary. But that calculation could change based on late polling. If Republicans lean to Obama despite Limbaugh's urging, for example, wouldn't it be in Clinton's interest to use this law to discourage Republican voting? In any case, Indiana Democratic Party officials have threatened on their own to challenge some of these voters, and that itself could affect the outcome of the Clinton-Obama contest.

Here's Indiana's odd rule for primary voting: The state code allows a voter to cast a ballot in a primary election "if the voter, at the last general election, voted for a majority of the regular nominees of the political party holding the primary election"—apparently meaning, in this context, that the voter voted for more Democrats than Republicans in the last general election. The law also lets voters into the primary if they did not vote the last time around but intend to vote for a majority of Democrats in the next general election. The law specifically provides that a voter can challenge another voter at the polling place for not meeting these requirements. The challenger gets to demand that the voter sign an affidavit stating that she meets one of the two requirements above. If the voter signs the affidavit under penalty of perjury, she can vote.

Given the way it's constructed, prosecuting someone under this law looks quite difficult—unless someone is dumb enough to blog about lying on an affidavit, how would prosecutors prove how the voter voted last time or that he lacks the intention to vote for a majority of Democrats at the next general election? And there are questions about the constitutionality of this provision. Still, Indiana Democrats are talking about using it because they're concerned that Republicans will cross over not just to monkey with the presidential primary, but other races as well. Democrats hold a 51-49 majority in the Indiana House of Representatives and think some manipulation of lower ballot races could occur. There is also an important primary in the close gubernatorial contest. The head of the state Democratic Party has threatened a crackdown on Republican crossover voters by challenging them at the polls and making them go through the rigmarole of signing affidavits. Perhaps this talk could deter some Republicans from crossing over and voting. And even if that's unlikely, voters in heavily Republican districts could be put off by long lines if lots of challenges take place.

Will Clinton or Obama supporters want to challenge alleged Republican voters? The calculation here depends on how prevalent the Limbaugh effect in fact is—and in whose favor it is really deemed to cut. Some Republican voters will cross over because they sincerely want to influence the choice of the Democratic nominee. Either they favor McCain but want to ensure that their favored Democrat wins if McCain loses, or they're seriously considering a vote for a Democratic candidate. At least early in the race, Obama had more support from independent and Republican voters, meaning that Clinton could have more incentive to challenge. But maybe Limbaugh has changed that.

More nefariously, some Republican voters could be trying to create the chaos that Limbaugh has called for. But it's hard to say how that plays out, too. In the end, the uncertainty may well persuade the Clinton and Obama camps to hold off on challenging primary voters. But in this high-stakes race, both campaigns are probably trying to think it all through. Perhaps we'll see challenges in some counties or polling places but not others. Where in Indiana does Rush get his highest ratings?

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Richard L. Hasen, the William H. Hannon distinguished professor at Loyola Law School, writes the Election Law Blog.
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