[author: Aaron Kase]
The Pennsylvania voter identification law that a Republican legislator said would “allow Governor Romney to win the state of Pennsylvania” has been upheld by a judge in the Commonwealth Court. In a 70-page opinion, Judge Robert Simpson wrote that an ACLU challenge to the law did not show that “disenfranchisement was immediate or inevitable.”
The judge’s decision, while surprising to some, was on solid legal ground, experts say. “It reads as an appropriate professional standard of judicial craft,” says Edward Foley, a law professor at the Ohio State University who focuses on election law. “It was well considered and the arguments were clear and well developed.”
Simpson rejected the notion that the law is necessarily unconstitutional in all situations, which the ACLU was arguing in what is known as a “facial challenge:” Because the vast majority of state residents already have appropriate IDs, the voter ID law can’t be considered unconstitutional on its face. “If it’s actually no burden to ask someone to show an ID, let the law be enforced for those to whom it’s no burden,” Foley explains. The decision left open the possibility that people who can’t get an ID or find another means to vote, such as through absentee or provisional ballot, could bring a separate challenge.
Legislators and Pennsylvania Gov. Tom Corbett claimed that the law was enacted to prevent voter fraud; however the state told the court, “The parties are not aware of any incidents of in-person voter fraud in Pennsylvania and do not have direct personal knowledge of in-person voter fraud elsewhere. … Respondents will not offer any evidence or argument that in-person fraud is likely to occur in November 2012 in the absence of the Photo ID law.”
A recent study by Philadelphia election officials found one instance of voter impersonation over the last decade. A national analysis found 10 cases of in-person voter impersonation since 2000.
It doesn’t matter from a legal standpoint. “The judge said proof of an actual problem is not required,” writes Richard Hasen, a law professor at the University of California Irvine, on an election law blog.
The number of people affected by the law is unclear and has been marked with wildly inaccurate estimates. The state initially said that 99 percent of residents already had the proper ID, then later admitted that it could not substantiate the claim. Other estimates based on various measures have ranged as high as over a million voters without id, or 12.8 percent of the voting population. Additionally one poll found that only one third of state residents are aware of the new law.
The law is expected to have a disproportionate affect on the ability of minorities, students, women, the elderly and the disabled to vote. An analysis by a local software company found that the law hits blacks and Latinos especially hard. The Justice Department is also investigating for possible discrimination.
However, Judge Simpson gave the state the benefit of the doubt in its preparation to educate and provide IDs for tens or hundreds of thousands of people who could potentially seek them in the next two months. “I was convinced that efforts [by the state] . . . will fully educate the public,” he wrote. “I am not convinced that any qualified elector need be disenfranchised.”
In the case of people who absolutely cannot obtain an ID, the law does allow for provisional ballots to count nevertheless. “If you don’t have the right kind of ID, and you state the reason is you can’t get the official document because you’re indigent, and sign an affidavit that you are indigent, your vote will count,” says Foley. “I can’t say it’s great to vote a provisional ballot as opposed to a regular ballot, but they aren’t disenfranchised.”
The Pennsylvania ruling will almost certainly be appealed to the state Supreme Court.
Most alarming is the prospect of mass confusion on election day and the protracted legal battle that would inevitably ensue if a close race came down to provisional ballots. “You’re likely to see litigation and disputes over everyone’s provisional ballots,” says Foley. “That could be ugly.”