Hey-remember Pennsylvania's voter-ID law? The really strict one that could disenfranchise hundreds of thousands of voters? The controversy over the law died down in mid-August, when a commonwealth court ruled the law would stand. Since then, however, the voting rights advocates who'd filed suit appealed to the state's Supreme Court. There, on Thursday, justices heard the case. But it garnered little in the way of headlines.
That's probably because Pennsylvania no longer looks up for grabs in the presidential race. The state's strict voter-ID law, which require voters to show a government-issued photo ID, disadvantages Democratic candidates, since the law disproportionately affects poor and nonwhite voters-those more likely to vote Democratic. When the presidential race was tight, the outcome in Pennsylvania seemed like it might be up for grabs, and many worried the voter-ID law would determine which candidate would receive Pennsylvania's electoral votes-or win the whole election, potentially. Now that Pennsylvania looks like a darker shade of blue (according to Nate Silver, Obama has a 94 percent chance of winning there), voter ID looks less likely to affect the outcome.
But regardless of presidential politics, the Supreme Court's decision will have enormous implications for Pennsylvanians' basic voting rights. Justices will decide whether to grant an injunction and suspend the law or allow it to stand. They could also delay it, giving the state more time to implement the new rules. The state attorneys argue that the state has the right to pass voter-ID laws under its authority to administer elections. (The state is not arguing that voter fraud, supposedly the rationale for voter ID, is a problem or a reason for the law.) The groups fighting the law argue that the Pennsylvania Constitution provides a particularly high degree of protection for the right to vote, higher than the protections in the U.S. Constitution.
The justices were quick to question the state's attorney about whether the photo-ID requirement posed too high a burden. "If everyone can get an ID, this [lawsuit] is not necessary," voting-rights attorney David Gersch told the court. "The vice is requiring ID that people have a hard time getting."
The requirement can certainly be difficult to comply with; the state law only allows a handful of types of identification. For those without such an ID-many of whom are elderly, poor, or both-acquiring one will take at least one trip to a driver's license office. That means hours in lines; if you live in a county without such a center, it also means a lengthy trip. For those who have not had a state-issued ID before, getting an ID can also require work gathering the necessary documents or making multiple trips to driver's license offices.
"It does appear to impact voters who have already been registered voters for decades," said Justice Debra Todd, one of the Democrats on the bench. The new burden on old voters, she said, "does appear to be completely contrary to our constitution."
Then there's the concern of voter education. There's little time to let registered voters know about the law; Pennsylvania won't send out information until the end of this month, and in the meantime it's easy to see how someone might get confused. A license that's more than a year past its expiration date is unacceptable; other forms of ID must both have an expiration date and be unexpired. Democratic Justice Seamus McCaffery pointed out that his own court ID could unlock the doors to the building, but not the doors to the voting booth for lack of an expiration date. Groups like the Pennsylvania Voter ID Coalition have taken it upon themselves to spread the word and help registered voters, while also pressuring the state to make the process easier. (Most recently, the Pennsylvania Department of Transportation agreed to keep driver's license centers open until 7 p.m. one night a week in the weeks before the election.)
Legally, the biggest question is what legal standard should be applied to the law. Laws that affect "fundamental rights" normally face a "strict scrutiny" test-meaning the burden falls on the state to justify the law. Certainly that's what the voting-rights groups argue; since there's no pressing need for the law-no evidence of in-person voter fraud-there's no justification for making voting harder.
Attorneys defending the Pennsylvania law tried to parse this key question. While voting is a fundamental right, said state attorney John Knorr, "not everything that affects that right is fundamental." In other words, he argued the state has the right to adjust procedures and rules that govern voting. He called the law a "minimal burden."
"It's a minimal burden if you already have an ID," said Justice Debra Todd. Todd and her two other fellow Democrats pushed hard on the law, raising question after question. As they pointed out, with more time, the risk of potential disenfranchisement decreases as the state can educate voters and offer new and easier ways of getting the necessary ID. Already Pennsylvania has begun offering a Department of State ID for those who do not have the necessary documents to procure traditional ID. If there were time and resources to prepare for its implementation, this law might not be so fundamentally threatening. As it stands now, however, such a strict photo-ID requirement does threaten the rights of hundreds of thousands of registered voters.
Still, it's not clear how the court will decide. The court normally has seven justices, but because one is under criminal investigation, she's not currently serving on the bench. That leaves three Democratic justices and three Republicans, and to get an injunction to either stop or delay the law, the plaintiffs fighting the law will need to convince at least one Republican to side against the measure.
Whatever the decision, it'll come soon-and voters in Pennsylvania will get the final word, with just weeks before Election Day, about what they'll need to cast a ballot.
