Pennsyvlania Voter ID: Now Requested But Not Required

Thanks to a decision today by Commonwealth Court Judge Robert Simpson, Pennsylvania's controversial voter-ID law will not be in effect in November. Though voters will be asked for one of the several allowable government-issued photo IDs at the polls, those who do not have such identification will still be able to cast the usual ballot. But the future of the law is still murky, and the legal battles will likely extend far beyond election day.

The controversy over the state's voter-ID law over the last few months has been contentious. While those promoting the law initially argued it was needed to prevent voter fraud, there's been no evidence of voter fraud in the state, and the state did not cite any examples of voter fraud in legal proceedings. But there was partisan advantage. According to several studies, voter-ID requirements disproportionately impact poor and nonwhite voters, who are more likely to lack the required identification. These are, coincidentally, the voters most likely to vote for Democrats. Back when Pennsylvania seemed more like a swing state, many Democrats worried the voter-ID requirement might disenfranchise enough voters to turn the state red; state House majority leader Mike Turzai, a Republican, didn't help matters when he said publicly that the state's voter-ID law would "allow Governor Romney to win the state of Pennsylvania."  

But in addition to the big-"D" Democratic worries, the law raises small-"d" democratic concerns. When it was passed, getting an acceptable form of identification was no easy task in Pennsylvania: For those who also lacked a birth certificate or Social Security card in addition to photo identification, it was virtually impossible. As the initial lawsuit got rolling, the state agencies implementing the law began to make changes that would ostensibly make the IDs more accessible—for instance, those born in Pennsylvania could get a certified birth record from the state by going to the Pennsylvania Department of Transportation (PennDOT) (though they had to go twice) instead of going through a more arduous process. The state also announced an "ID of last resort" available for those who, for lack of documentation, could not get a normal one. But many argued the PennDOT stations were ill-equipped to deal with the changes; long lines and uninformed workers figured prominently in anecdotes. Many were skeptical of the state's efforts to educate poll workers and state employees given that the state hired a Republican-controlled firm to do the PR. While the state produced a study showing 9 percent of its residents lacked the most common form of identification, the numbers were seriously flawed. Even the lowest estimates showed that around 89,000 people, or 1 percent of voters, would be impacted by the law.

This wasn't enough for Simpson to put the law on hold—initially, anyway. When he refused to grant an injunction in August, the judge said in his ruling that he believed state officials who assured they had adequate plans in place to prevent widespread disenfranchisement. He gave the state the benefit of the doubt, putting the burden of proof on the plaintiffs who, he said, failed to show that the law would disenfranchise voters. The decision was surprising to many voting-rights lawyers given that voting is considered a fundamental right and therefore any laws that affect it must normally pass what is called a "strict scrutiny" test, with the burden falling on the state to prove the law would not disenfranchise voters.

The assurances of Pennsylvania officials weren't enough for the state supreme court. In a 4-2 decision, the court vacated Simpson's ruling, and sent the case back to the commonwealth court judge, instructing him to use a much higher bar in judging the voter-ID law: The state now must prove that anyone who's eligible and wants to vote has access to the necessary identification. In fact, according to the supreme court, Pennsylvania would have have to prove there'd be "no voter disenfranchisement" at all.

As the legal saga continued to unfold, the state continued to make changes, though anecdotes still seemed to show a messy process with voters forced to endure bureaucratic nightmares of long waits and wrong information. In the last couple of weeks, the state has made it easier to obtain the ID of last resort—anyone can now get it, whether or not you've tried to get a traditional ID. The state also sent new training materials to all 71 PennDOT driver's-license centers and allowed five Philadelphia PennDOT centers to be open for limited evening hours. But both the plaintiff attorneys and reporters continued to point to stories of voters in long lines and being improperly denied identification from PennDOT workers.

These anecdotes proved important in the legal case.

In today's ruling, Simpson acknowledged the efforts of the state, but wrote that many were only now being implemented, with little evidence of how much of a difference they made. Additionally, with only five weeks before election day, he did not think they would provide the kind of "liberal access" to IDs that the supreme court ruled was needed. Simpson pointed to the paltry number of IDs that had been issued—a total of around 10,000. (Even the lowest estimates showed 89,000 or so Pennsylvanians lacked ID.)  "I expected more photo IDs to have been issued by this time," he wrote. "For this reason, I accept Petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed." Simpson was unconvinced that disenfranchisement would not occur, and hence granted an injunction.

But it's not quite as simple as that. While the law will not be in place as written on Election Day, Simpson did not enjoin the entire thing. The state will still provide education about the need for IDs at the polls and poll workers will ask voters for IDs. It's just that those who do not have an ID will still be allowed to cast a normal ballot. Effectively, Simpson is expanding the "trial run" that the state implemented in the spring.

The ruling was undoubtedly a win for voting-rights groups, but it wasn't an unqualified victory. “While we’re happy that voters in Pennsylvania will not be turned away if they do not have an ID, we are concerned that the ruling will allow election workers to ask for ID at the polls and this could cause confusion,” said Advancement Project Co-Director Penda Hair in a statement. “This injunction serves as a mere Band-Aid for law’s inherent problems, not an effective remedy." Some are worried about the potential confusion for voters and poll workers, though the same policy was in effect during the spring primaries.

This is hardly the end of things. The state can still appeal to the state supreme court, and in any case, a full trial will likely occur after election day to determine the long-term fate of the law.

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