Let's imagine a world in which Pennsylvania's voter-ID law did not disenfranchise hundreds of thousands of voters. The law, which requires voters show government-issued identification in order to vote, has created significant burdens for voters without IDs, a population disproportionately made up of poor people and minorities. In our imaginary world, the state would do a stellar job of educating voters, reaching out to African Americans—who disproportionately lack state IDs—and Spanish-language media. They would send postcards as early as possible to tell every voter in the state about the change. A "card of last resort" would be available to any voter who could not easily access the required documents for a standard ID, which include a birth certificate and a Social Security card. Employees at the state's driver's license centers would be well-versed in the law and give voters advice about what was needed and what they were entitled to receive for free. Election workers would be well-trained and poll places would have provisional ballots for those who did not have ID on election day. If every single component of that implementation went perfectly, then maybe the law would not have the disastrous impact that almost all voting-rights activists predict it will have.
According to Pennsylvania Commonwealth Judge Robert Simpson, the mere possibility of that counterfactual scenario is enough. This morning, the judge denied a request from four voting-rights groups to block the law. The lawsuit will now head to the state supreme court—"as quickly as possible," says Penda Hair, executive director for the Advancement Project, one of the parties to the suit.
Over the phone, Hair was deflated. "It's a very sad day for democracy," she said.
Simpson's decision centered on a few key legal questions: Whether the law was unconstitutional "on its face"—as opposed to in practice—and what standard should be applied to judge its constitutionality. In evaluating laws, judges apply different standards. "Strict scrutiny" is an elevated standard, which is most typically applied when the law in question targets minorities or involves a fundamental right; to be ruled constitutional, the law must be narrowly tailored, serve a "compelling state interest," and be the only way the state can achieve the intended effect. In other words, the state has the burden of showing that we really, really need this law. The "rational basis" is much more lenient—all the state has to show is that the law serves some legitimate purpose (i.e., that it's not totally frivolous). In his lengthy opinion, the judge determined that, based on prior cases, including the U.S. Supreme Court case over Indiana's voter-ID law, a strict scrutiny test was not "the appropriate measure" for the case. Because of this, the law's proponents did not need to show that the Pennsylvania law served a "compelling state interest." In other words, even though the law was ostensibly passed to prevent voter fraud, the fact there is no voter-fraud problem in the state doesn't matter. Simpson also wrote that the plaintiffs' case hinged on the many things that would or could go wrong, but that the law was not unconstitutional as written—the plaintiffs would have to wait until after the election to see if it had been harmful.
In a conference call with Hair and the other plaintiffs' lawyers, the legal team was eager to point out that should the state Supreme Court subject the law to stricter scrutiny, they would stand a much better chance of winning. The lawyers pointed to cases in Missouri and Wisconsin, where courts found that similar voter-ID laws violated their state constitutions, based on a strict-scrutiny test. Simpson had relied more heavily on precedent from a U.S. Supreme Court case that ruled on violations to the federal Constitution—a different argument than the one the plaintiffs were making.
Hair had harsh words for the judge's decision. The ruling implied "voters have to wait until after the election, after they're barred from voting, and then you can show that the harm is actually applied to them," she said. "To protect your right to vote you have to lose your right to vote in one important election. That's the only way I can read this."
In the conference call, attorney David Gersch was even more blunt. "The court was wrong about that," he said, pointing to the judge's acknowledgement that certainly more than 1 percent of voters would be impacted. In Pennsylvania that means at least 89,000 people may lose a fundamental right.
The state has talked a lot about its plans for voter outreach and making it easier to obtain an ID. But so far, the only thing the state has done is to allow those born in Pennsylvania to retrieve a "certified birth record" by providing their personal information at a driver's license center. It's easier than obtaining a birth certificate for sure, but it still requires two trips—one to request the record and another to get an ID. There are other measures in the works: For those lacking documents, an ID "of last resort" is supposed to become available by the end of August, and by the end of September, postcards will go out to every voting household in the state informing people of the new law. Pennsylvania has also hired a PR company to do media outreach.
But many doubt these efforts will be sufficient. The PR company the state hired is controlled by Republicans, which some say will be disinclined to alert poor and nonwhite voters—voters who lean Democratic—about the law. It is also unclear how many people—and where—the law will affect. The state's data showed more than 750,000 without a state ID, but that data has significant flaws. In testimony, a state official explained that he expected fewer than 10,000 IDs to be issued for voting purposes.
Voting-rights advocates are suspicious of the state's efforts. The Pennsylvania Voter ID Coalition, made up of 140 civic, religious and voting-rights groups, has opted not to educate any voters on the "card of last resort" until it's actually available, since the state doesn't always make its deadlines. Meanwhile, several studies have shown that employees at the driver's license centers are not sufficiently familiar with the law and have misinformed voters about the rules.
Judge Simpson, however, put great faith in the state's voter-outreach efforts. He was dismissive of the plaintiff's expert witness, a political scientist who showed through survey research that a third of voters were unaware of the law and as much as 12.6 percent of the state's registered voters may lack the necessary ID. "I am not convinced any qualified elector need be disenfranchised by Act 18," Simpson wrote, pointing to absentee voting and provisional ballot options for those struggling meet the requirements.
Oddly, however, the judge did acknowledge that the law would hurt voter access. He gave the plaintiffs credit for establishing that the law would prevent some legitimate voters from casting ballots and that some would unfairly be charged for their IDs. He even addressed statements from Mike Turzai, the Republican House Majority Leader who said in an audience that voter ID would ensure a Romney victory, calling the statements "disturbing, tendentious" and "boastful." But he chose to believe Turzai was alone in his cynical and partisan views, and decided granting the injunction would do more to hurt than help the problems.
To Hair, Simpson's opinion amounts to a punt to the state Supreme Court. "I interpret it as the lower court saying, 'If I make a ruling one way or another and then the Supreme Court changes that ruling on appeal, which is going to be worse?" she said. (As I've written, this is a concern many activists have had about the ruling.) Hair is already focusing on the Supreme Court, where she believes the plaintiffs can prove that with so many impacted, the law creates an undue burden.
"There won't be a question that close to a million people will be affected by this law," she says. "You don't need to show absolutely without any doubt that you will be barred from voting. We showed massive burdens that these voters have to overcome."
"We believe that just like the poll tax wasn't an absolute barrier—you could pay the tax and vote—overcoming these burdens should not be a requirement."