A Pennsylvania Photo ID law that one Republican lawmaker once boasted would deliver the Keystone State to Mitt Romney in the 2012 Presidential Election was struck down by a Pennsylvania trial court.
Judge Bernard L. McGinley of the Commonwealth Court of Pennsylvania ruled that several sections of Act 18, the Republican-sponsored polling place Photo ID statute that was signed into law by Gov. Tom Corbett (R) in March of 2012, violated the Pennsylvania Constitution. The court, which previously prevented the law from taking effect by the issuance of a preliminary injunction, ordered that Act 18’s in-person Photo ID requirement be permanently enjoined.
That ruling does not come as a surprise.
In May of 2012, The BRAD BLOG predicted that the plaintiffs in Applewhite vs Commonwealth of Pennsylvania would likely establish that Act 18’s polling place Photo ID restrictions violate of that state’s constitution. The lawsuit — named after its 93-year old lead plaintiff Vivian Applewhite, who had voted for 50 years without a problem until 2012 — alleged that the Act’s Photo ID restrictions would deny or significantly impair the right to vote. That right, according to the Keystone State’s constitution, is considered “fundamental.”
Under judicially recognized Equal Protection standards, a law that impairs or abridges a “fundamental right” cannot survive a constitutional challenge unless the law is narrowly tailored to serve a “compelling state interest.” That interest, we observed in our original article, cannot be found in what amounts to the “phantom menace” of in-person voter impersonation — a point PA Republicans later conceded via a formal, in-court stipulation, entered near the outset of the case, in which they acknowledged they were “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.”
While he included additional reasons for issuing the permanent injunction, Judge McGinley’s lengthy decision [PDF] reveals that our original assessment of the case, and our prediction about its likely outcome, were spot on…
Unconstitutional
The court ruled that the polling place Photo ID provisions of Act 18 impose “burdens on the fundamental right to vote, which are unreasonable and are not narrowly tailored to serve a state interest.” The law “does not provide a non-burdensome means for accessing compliant photo ID.” Instead, the judge found, “its requirements effectively deny, delay and inconvenience exercise of the franchise [to hundreds of thousands of otherwise eligible voters].”
The court expressly ruled that the Commonwealth had failed to “substantiate either voter fraud or integrity in elections…as a compelling or legitimate state interest for the Voter ID Law.”
In its decision, the court cited the expert testimony offered by Rutgers University Prof. Lorraine Minnite, Ph.D.: “The only type of voter fraud that the Voter ID Law could detect, deter, or otherwise address is [the exceptionally rare instances of] in-person impersonation fraud, whereby a person appears at a polling place and attempts to vote for another person,” the court stated in referring to Minnite’s testimony.
The court found that the Commonwealth’s stipulation that they were “not aware of any incidents of in-person voter fraud in Pennsylvania” served only to “undermine” its claim that the statute was intended to prevent voter fraud.
Act 18’s polling place Photo ID restrictions did not, in fact, serve to bolster the integrity of elections, as the state had argued. To the contrary, the court expressly found that the Commonwealth’s “implementation of the Voter ID law in a manner that disenfranchises qualified electors will undermine the integrity of elections.”
The court summed up its findings in the conclusions of law section of its decision:
Respondent’s stipulation shows voter fraud is not a state interest for the Voter ID Law; the sole interest Respondents put forth is electoral integrity, which was undermined by the credited testimony…
While the record established that the Act had a disproportionate adverse impact upon senior citizens and minorities and that “hundreds of thousands of registered voters in Pennsylvania” lacked the requisite Photo ID, “denying eligible voters the franchise is unconstitutional, regardless of the number of voters who are so deprived,” Judge McGinley opined, citing Pennsylvania case law establishing that the “disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.”
‘Voter ID’ still required, but not strict state-issued Photo ID
Judge McGinley’s injunction only applies to “the enforcement of the in-person photo ID requirement, [to the] related implementation provisions [of the Act] and application of the proof of identification definition as to in-person voting.”
As the court recited at the outset, prior to the enactment of these disputed Photo ID provisions, the Commonwealth’s election law statute already “permitted electors to present one of several specified forms of non-photo ID that contained the elector’s name and address, including a utility bill, paycheck, or government check…These forms of identification mirror those listed in the Help America Vote Act (HAVA).”
The majority of states in this country already require similar identification for in-person voting. It is only within the last few years that Republicans began restricting those forms to a narrow number of state-issued, Photo IDs.
The PA ruling does not eliminate the state’s existing non-Photo ID requirements. It also does not affect any changes to absentee ballot law that were made by other sections of Act 18. Those other sections were not challenged by the Applewhite plaintiffs.
Potential Impact in Other States
Judge McGinley’s application of strict scrutiny to a Photo ID law by reason of a state constitution that treats voting as a “fundamental right” is by no means novel. In Weinschenk v. State (2006), the Missouri Supreme Court struck down the Show Me State’s polling place Photo ID law on identical grounds. A similar rationale was applied by Wisconsin courts in temporarily enjoining the Badger State’s Photo ID law. Two of those Wisconsin cases are now pending before the Wisconsin Supreme Court.
As we anticipated some time ago, Judge McGinley ruled that the controversial U.S. Supreme Court decision in Crawford vs. Marion County Elections Board (2008) was not controlling in this matter because Crawford did not involve a legal challenge to a Photo ID law pursuant to a state constitution that treated voting as a fundamental right. Instead, the petitioners in Crawford unsuccessfully argued that Indiana’s Photo ID law, “on its face,” violated the U.S. Constitution. Because voting is not treated as a “fundamental right” under the federal constitution, Judge McGinley observed, “the U.S. Supreme Court applied a rational basis test” — as opposed to the near insurmountable hurdle of “strict scrutiny” that applied in this instance.
However, Judge McGinley also observed that the Indiana Photo ID statute withstood the federal legal challenge because “there was insufficient evidence to indicate de facto disenfranchisement of qualified voters whereas the record [in Applewhite] shows hundreds of thousands lack compliant photo ID.” Where the Supreme Court’s decision, in Crawford, “revealed ‘nothing about the number of free photo identification cards issued since’ Indiana’s Voter ID law was enacted…the developed record here shows the gap in access to photo identification is not being filled.” While “hundreds of thousands…lack compliant photo ID,” in Pennsylvania, only “17,000 photo IDs for voting purposes have been issued” since the law was passed in March 2012. The Nation’s Ari Berman notes that “Since the 2012 election, fewer than 150 new voting IDs had been issued by the state per month.”
This fact-driven decision in Applewhite is especially relevant with respect to the currently pending challenges to polling place Photo ID restrictions in jurisdictions like Texas, where a unanimous, three-judge U.S. District Court panel in 2012 found far greater impediments to the exercise of the franchise than exist in Pennsylvania. The Texas polling place Photo ID law would, in some cases, as the federal three-judge panel found, require the working poor, who lacked either a driver’s license or sufficient means of transportation, to make a 200 to 250 mile round trip journey to the nearest Department of Public Safety [DPS] office, and face up to three hours wait time to secure a Photo ID — this assuming the otherwise qualified voter has the requisite documentation, such as a birth certificate or marriage license required to navigate the restrictive provisions of the Lone Star State’s regressive Photo ID requirements.
In addition to the pending federal court challenge against the Texas Photo ID law, which argues that their statute is in violation of the U.S. Constitution, federal challenges are also now pending against similar polling place restrictions enacted by Republicans in both North Carolina and Wisconsin.
Republican options
Even if an appeal is taken and the Pennsylvania Supreme Court were to uphold Judge McGinley’s decision, this does not necessarily spell an end to Republican efforts to enact polling place Photo ID in the Keystone State.
In Missouri, the Republican-controlled legislature attempted to bypass a state Supreme Court ruling that struck down its Photo ID statute by way of a ballot measure that would have mandated otherwise disenfranchising Photo ID restrictions by way of an amendment to the Missouri constitution. The measure, the “Voter Protection Act,” was removed from the ballot after a Circuit Judge essentially agreed with a senior attorney for the Advancement Project that the ballot measure amounted to a “cynical and shameful [effort to use] the voting process itself to trick voters into giving up their right [to vote].”
As we reported in “MN Voters See Through ‘Voter Fraud’ Lie, Defeat Polling Place Photo ID Amendment”, a Republican effort to adopt Photo ID restrictions via a deceptive ballot measure fell short when Minnesota voters rejected the proposed amendment to that state’s constitution by a decisive margin of 54% to 46%.
In Pennsylvania, amendments to the state’s constitution can be placed on the ballot if approved by a simple majority of the legislature in two successive sessions.
Unfortunately this Judge’s term does not expire until December 2017 but I will keep his name in mind. He will not get my vote. Disenfranchising minorities to have such a law? I am being disenfranchised by not having such a law. If these “minorities” wanted to sign up for government handouts that required an ID, they would bend over backwards to get one.
Uh, Joe. Seems you had as much trouble reading this article as you may have reading the Constitution. This is not about having an ID. That is already required for registering (in every state) and voting in PA. It’s about a very specific type of ID which the Republicans who passed this law knew that hundreds of thousands of their fellow citizens do not have.
Beyond that, I’m sorry to hear that you are against the idea of democracy in the United States of America. Kind of seems like a bedrock value, but I guess it’s one that you do not hold.
Joe Dunmire @1 wrote:
Really Joe?
The word “disenfranchise” means to deprive someone of their right to vote.
Are you really saying that unless and until a polling place Photo ID law is enforced in your state, you will be prevented from voting?
If the absence of an enforceable Photo ID statute prevents you from voting, how will you make good on your threat to vote against Judge McGinley when his term expires?
Me thinks thou doth not have a clue!
Yes Ernest, he is disenfranchised because he thinks Mickey Mouse can vote
My question, why in the world does this have to be litigated separately in all 50 states when the core issue is the same for every state?
The Department of Redundancy Department?
Joe in Syr @4 wrote:
Actually, the issue is not the same in every state. Except as to certain limits imposed by Congress and the U.S. Constitution, the conduct of elections is largely left to each individual state due to issues of federalism.
Those principles not only exist with respect to voter suppression legislation, like Photo ID laws, but on how votes are cast and counted, which varies not only between states but often between counties. That can vary from the New Hampshire towns, which invoke Democracy’s Gold Standard (hand marked paper ballots, publicly hand counted at each precinct on election nights), to optical scanners, which are subject to manipulation but at least hold the prospect for verification if we actually hand counted the paper ballots, to the 100% unverifiable Direct Recording Electronic systems (usually touch screen) where it is impossible to know whether any official count has even the slightest relationship to the votes actually cast by the voters.
In the realm of Photo ID, the only way to insure a single, uniform standard would be for Congress to amend the Voting Rights Act to prevent their use. So long as the GOP retains a majority in the House, that won’t happen. Even if it did, such an amendment might ultimately be challenged in the U.S. Supreme Court.
Imagine that: a “law” that disenfranchizes thousands and thousands of PREVIOUSLY LEGAL VOTERS is UNCONSTITUTIONAL!!! What a SHOCKER!
I think anyone calling this a “voter suppression law” is absurd: Do you not all have a driver’s license?
Plus, a photo ID is very easy to come by: Even people not eligible to drive can get an ID at any DMV location for $10.
To those saying “you already need an ID to register to vote” – THERE YOU GO – You must already have the photo ID to register, therefore it is not at all unreasonable that you have this same ID with you when you vote. (You need it to open a bank account, apply for state benefits, get a job, etc.)
Plain and simple: If ID is required to register, and that’s ok, then it is perfectly reasonable to require that your ID match the one used to register to vote in the first place.
Steve, seemingly ignorant of the law, reality and the Constitution wrote @ 7:
I do. Millions of legal voters, however, don’t. In Pennsylvania, the judge described “hundreds of thousands” not having one. (Yes, millions use public transportation and don’t drive.) But fuck them?
Wrong. Good thing we don’t have literacy tests for voting, Steve. You’d be screwed. An ID — not a state issued Photo ID — is required to register to vote. It is also already required in PA and most other states without a problem, as noted in the article above.
Sounds like you may have some reading comprehension issues. Don’t worry, I still think you should be allowed to vote anyway.
Right. But that’s not the ID that Republicans are attempted to require voters to show when they vote. Try to keep up.
Right. If that was what Republicans were attempting to do, we wouldn’t have a problem.
Steve @7 wrote:
Did you even bother to read this article?
In person voter fraud, which is the only type of fraud that can be prevented by requiring citizens to produce a Photo ID at the polls, is virtually non-existent. The same Republicans who claimed this law was needed to prevent such fraud entered a formal stipulation in which they admitted that they were not aware of a single case of in person voter fraud occurring within the Keystone state–ever!
Think about that. Pennsylvania is one of the original thirteen states. Between 1776 and 2012 citizens have voted there in election-after-election without being required to produce a photo ID. Yet PA Republicans cannot point to a single case of in-person voter fraud–ever!
On the basis of an extensive factual record, acquired during a lengthy trial, the judge in this case found that hundreds of thousands of otherwise eligible voters would be disenfranchised because they did not possess one of the narrow number of state-issued Photo IDs. (The Commonwealth’s own witness estimated that between 320,000 and 400,000 registered PA voters lacked a compliant Photo ID).
Once you know (a) that the law places hundreds of thousands of otherwise lawful voters at risk of disenfranchisement and (b) that there is no legitimate reason for passing the law, you are left with the only reasonable conclusion: The law was passed to suppress the vote, a conclusion that is reinforced by the fact that it is the minority and poor who are disproportionately affected by polling place Photo ID restrictions.
Those just happen to be demographics that are not inclined to vote Republican.
In further response to Steve @7, one of the factors in this law that Judge McGinley found troubling is that it “also unnecessarily restricts types of compliant photo IDs the Commonwealth and other government entities accept as proofs of identity. For example, employee IDs for school districts are not among the compliant Photo IDs…Neither are welfare cards, or bus passes containing a picture. Gun permits are also not acceptable. Neither are drivers’ licenses issued by another state, although they are current and valid to drive in Pennsylvania.”
That lays waste to the usual nonsense, ‘well you are required to show a Photo ID for other activities’.
To this Judge McGinly added that student Photo IDs are not acceptable because they don’t contain an expiration date — this despite the fact that the Commonwealth conceded “the expiration date requirement is completely unrelated to confirming a voter’s identity.”
The judge suggested that the way the law was “written suggests a legislative disconnect from reality” and that the law, on its face, ” is unreasonable and unconnected to any legitimate state purpose.”
Trolls only get from an article what they have already perceived it to say.
In response to Brad and Ernest above, I seriously think rightwing media is the culprit of that type of faulty thinking.
The argument that one needs a photo ID to fly, rent a car, get a hotel room, etc. is a specious as it is stupid. It’s apples to oranges. None of those other activities are guaranteed by the Constitution, however voting is. The mendacity of comparing voting to flying or renting a car demonstrates the right wings’ incapability of rational thought – or perhaps it was a rational attempt to disenfranchise voters they don’t like. Too bad – right wing thugs lose again.