It's a lot easier to talk about a law—and pass one—than to implement it. Just ask Pennsylvania lawmakers—and Pennsylvania citizens, and judges, and voting-rights activists.
The state's voter ID law, passed by Republican lawmakers in March, is best known for threatening to disenfranchise more voters than laws in any other stae. But in mid-August, Pennsylvania Judge Robert Simpson refused to grant an injunction to stop the state from implementing the law in November. The judge said that he believed state officials' assurances that they had plans in place (though some were still not in action) to prevent widespread disenfranchisement.
Those promises are not enough for the state supreme court. On Tuesday, in a 4-2 decision, the court vacated Simpson's decision. The justices sent the case back to the commonwealth court judge, requiring him to use a much higher bar than the one the state had to meet in his courtroom the last time around. Simpson originally ruled that the burden fell to the plaintiffs requesting the injunction (some of them registered voters who lacked the documents necessary to get the newly required ID). They had to prove that disenfrachisement would be a problem. This time around, thanks to Tuesday's decision, the state will have to prove that it won't be a problem—that anyone who's eligible and wants to vote has access to the necessary identification. In fact, Pennsylvania will have have to prove there's going to be "no voter disenfrachisement" at all.
That's going to be tough, to say the least.
Responding to widespread criticism and legal challenges, the state has made some efforts to increase the availability of the newly required ID. It now offers "Department of State IDs" to those without the documents needed to attain the required ID. The state has also made some adjustments so that voters (in theory, at least) only to have to come to a state Department of Transportation office once to get their IDs, rather than making multiple trips. In Philadelphia, where there's a high concentration of affected voters, the state has expanded the hours of driver's license offices—though only once a week, on Thursday evenings. There's also the provisional ballot option for people who show up to vote without the ID; they can cast a provisional ballot, but it is only counted if they mail, fax or bring a copy of their ID to the county board of elections within six days. While the provisional ballot does provide some safety net, for those who do not have an ID, six calendar daysis little time to get one. During the supreme court hearings, one Democratic justice described the provisional ballot constraints as "a nightmare."
"I think the state has been taking some steps [to] make it a little less burdensome on voters," says Joe Grace, spokesman for the Pennsylvania Voter ID Coalition, a grassroots, citizen group trying to spread the word about the law and help people get IDs. (I profiled the group's efforts in the Prospect's September/October issue.) But Grace is the first to point out that those efforts have not solved the problem. "There still is a gap," he says, "between the law, the plans to implement the law, and what’s actually happening."
What's actually happening still sounds like a mess. Even if the new policies are supposed to make the cards easy to get, serious problems continue to be reported. Grace told me about a woman who came to the coalition offices trying to get her autistic sister an ID. She'd already gone to the driver's license offices with her sister multiple times, bringing all the necessary documents. Each time, state employees found a problem. It was only after the coalition got involved that her sister got her ID.
On a press call Tuesday afternoon, lawyers for the plaintiffs told similar stories, arguing that voters are getting turned away and that state employees weren’t able to locate some voters’ registrations.
It's a situation a significant number of Pennsylvanians face; the numbers show just how widespread the risk of disenfranchisement remains. Even by the state's lowest estimates, at least 1 percent of voters—around 90,000—were lacking the necessary ID to begin with. (Later estimates, from both the state and outside researchers, showed much high numbers, though none of the estimates is completely reliable.) The Pennsylvania secretary of state's office said Monday that, so far, the state has only issued 9,000 new IDs. That means, at the very least, only 10 percent of the registered voters who need the new IDs have them, with just weeks to go before the election.
Though the state will again point to its efforts and downplay the number of people who will lose their right to vote, it will be extremely difficult—some might say impossible—for the state to prove that no voters will be disenfranchised because of the law. “We think the commonwealth is going to have trouble no matter what,” said David Gersch, an attorney for the plaintiffs. “That’s a very high standard that the Pennsylvania supreme court has imposed and rightly so.”
Still, the plaintiffs have been optimistic all along; before losing at the commonwealth court, the head of one voting rights group called the case a "slam-dunk." The state will likely argue that between its efforts to get people IDs and the provisional ballot option, those who want to vote will be able to. Simpson sided with such arguments last time around, saying, "I am not convinced any qualified elector need be disenfranchised" by the law.
But in that same opinion, Simpson acknowledged that the law would prevent some legitimate voters from casting ballots and that some would be unfairly charged for IDs. He noted that at least 1 percent of voters were affected. In his decision to deny an injunction, Simpson wrote that if he were using a different standard—if the burden fell on the state instead of on the plaintiffs—"I might reach a different determination." Now the supreme court has instructed him to use that different standard.
Simpson must issue a decision by October 2. Regardless of what he rules, however, there could still be more legal action from either side. The Supreme Court’s decision, recognizing that possibility, includes a provision that guarantees an expedited schedule for any future appeals.
As I wrote last week, this case is not about the validity of voter ID laws in general. No one on either side is arguing that requiring some form of identification to vote is inherently unfair. Rather, the voting rights groups fighting the law argue that Pennsylvania's law—one of the nation's most restrictive—goes too far, too fast. In Gersch's words, "The vice is requiring ID that people have a hard time getting."