Voter ID Battle Not Over

by Mary Pappalardo, Writing Intern

Earlier this year, TRCF intern Stephanie Brown wrote an article about the new voter ID law that was being challenged in Pennsylvania. That article can be read here.

At the time that the article was written, the appeal against the new law had not yet been heard in court, but since then there has been a tumultuous battle. Not only was the case heard in Commonwealth Court, but also in the Pennsylvania Supreme Court, and then yet again in Commonwealth Court.

On July 25, Judge Robert Simpson heard the arguments presented by the ACLU, the Advancement Project, the Public Interest Law Center of Philadelphia, and the law firm of Arnold and Porter LLP (based in Washington, DC) who hoped to overturn the new voter ID law. The argument presented was that the new law was fundamentally unconstitutional in that it denied citizens their most basic constitutional right-the right to vote.

Judge Simpson commended the challengers for putting a face on those most affected by the new law, and he also acknowledged that comments from state representative Mike Turazi indicated a potentially disturbing motivation for the law, he maintained that one could not assume that others echoed Turazi’s sentiment. More importantly, he pointed out that if the law was not proven unconstitutional, potential partisan motivations were not a valid reason to overturn it.

Despite these considerations, Simpson ruled to uphold the law, drawing from a 2008 decision in Indiana which seemed to establish that states had the right to require photo identification for voting. One of the difficulties of the case is that it was being argued facially, not as applied, which means the challengers had to prove that the law was unconstitutional as written, rather than in its enforcement. Facial cases are significantly more difficult, and Simpson’s ruling reflected that difficulty. In his written opinion, he stated that the challengers had failed to prove the unconstitutionality of the law.

The challengers immediately appealed the case to the PA Supreme Court. Instead of ruling directly on the matter, the Supreme Court voted 4-2 to send the case back down to Commonwealth Court, and also ordered that Judge Simpson write a supplemental opinion assessing the effectiveness of the alternative photo ID programs that the state had established. In response, the state simplified the process of obtaining a voting-only ID: the Pennsylvania Department of Transportation (PennDOT) announced that people could apply for a voting-only ID without first applying for a non-driver ID, and also proof of residence was no longer required for a voting-only ID. These changes, though, were not enough to convince Judge Simpson, as he said the changes came too close to the election to ensure that no one would be disenfranchised. Acknowledging that the gap between the photo IDs issued and the expected need would likely not be closed, he changed his earlier ruling and passed a preliminary injunction, meaning that the new voter ID law would not go into effect for the upcoming presidential election.

While this is definitely cause for celebration, the battle has not been won. To begin with, it is important to recognize that the injunction is only temporary. The law has not gone away, it has just been sidelined. It seems that the grounds for postponing it were largely based on the short timeline leading up to the general election. It is very possible that once the election is over, and the State has had a longer amount of time to issue voting-only IDs, the law will stay in effect. Furthermore, the only thing changed by the injunction is the requirements for the general election.  All other aspects, including education about the law, are still in effect. This means that people are still being inundated with advertisements addressing the new law and its ID requirements. This only serves to confuse, and potentially dissuade, voters who do not possess the ID referred to in these ads from voting. It must be made explicitly clear to voters that in the general election, they do not need photo identification, or we risk a different kind of disenfranchisement.

Voter suppression is a very real and dangerous threat to this country. Voter ID laws like this one are not specific to Pennsylvania, but have been pushed for in various other states. In July, Wisconsin saw a judge block implementation of a similarly strict law requiring photo ID. In late August, both Florida and Texas faced similar rulings on their strict ID laws, and just yesterday, South Carolina’s voter ID law was blocked. Because of Section 5 of the Voting Rights Act, states like Texas, South Carolina and parts of Florida—as well as other states like Alabama and Mississippi that have had a history of discrimination—no law regarding voting can be passed without a preclearance from a panel of three federal judges. In states like Pennsylvania and Wisconsin, these restrictions are not in place, and the ruling is left to state courts.

While each of these outcomes is encouraging, the trend that we see in the introduction of these laws is disheartening. It is hard to look at these laws and the reasons given for blocking them and not understand that there is an active attempt to exclude certain parts of the population from voting. Our basic rights should be an issue about which we can be the most bipartisan. Regardless of political beliefs, that which makes us all fundamentally American is found in the Constitution, and we should celebrate that. Instead, these laws highlight an attempt to deny the most intrinsic right, one of the cornerstones of our democracy, because of political ambition, and an active disregard for the ideals on which our country was built.