Good news for fans of democracy and voting rights, and for foes of discrimination! Bad news for Republican Gov. Tom Corbett, his GOP state legislature, and perhaps others like them in different states.
The U.S. Dept. of Justice may soon be filing a legal challenge to Pennsylvania’s new GOP-enacted polling place Photo ID restriction. The law will affect the ability of some 750,000 legal voters to cast their once-legal vote in the Keystone State this November, unless it is overturned. If the feds choose to bring suit against the new law, it would be the first time the federal agency has used the anti-discrimination provisions of Section 2 of the Voting Rights Act (VRA) of 1965 to block such a law.
Last February, as a civil rights group had filed a federal challenge against the state of Wisconsin, charging that state’s new GOP-enacted polling place Photo ID restriction violated the federal constitution, we explained how the moment presented a “golden opportunity” for the U.S. Dept. of Justice to join the case and challenge it, as well as similar laws in other states, under Section 2 of the VRA.
As Ernie Canning detailed at the time, the DoJ has, to date, only challenged recently-enacted polling place Photo ID restriction laws in jurisdictions which are covered by Section 5 of the VRA. That section of the landmark federal law requires that new election laws in some 16 states, or parts of states with long histories of racial discrimination at the polls, receive federal government preclearance for the new laws before they may be enforced. Section 5 places the burden on the jurisdictions themselves to demonstrate that the new laws will not have a discriminatory effect.
Since these particular laws have been shown, indeed, to be designed to discriminate against largely Democratic-leaning voters, the states where the laws have been denied preclearance by the DoJ — states like Texas and South Carolina, for instance — have been unable to demonstrate their laws did not have the effect of discriminating against legal minority voters. In both of those cases, using data supplied to the DoJ by the states, it was simple to show the discriminatory effect of the new laws. (For example, in South Carolina, African-American voters were found to be 20% more likely to lack the type of ID needed to vote under the new law than white voters. In Texas, the state’s own data showed that legal Hispanic voters were as much as 120% more likely to lack the requisite ID to vote under the new law than non-Hispanic voters.)
But similar laws passed in states not covered by Section 5 — states like Wisconsin, Tennessee, Kansas, and Pennsylvania — have yet to face the same kind of legal scrutiny from the federal government — until now…
Laws passed by states not covered by Section 5 may be still be challenged as discriminatory under the VRA, but under Section 2, which places the onus on the federal government to prove the laws were passed with a discriminatory intent. In short, Section 5 cases are much easier to prove, since the burden is on the state to demonstrate they’re not discriminating, while Section 2 cases are thought to be more difficult win, because the burden is shifted to the federal government to demonstrate a discriminatory intent.
But now, finally, months after we’d called on the DoJ to take on some of these cases, under Section 2, in states not covered by Section 5, it looks like they may finally be showing an interest in enforcing the federal law in the Commonwealth of Pennsylvania.
As TPM’s Ryan Reilly reports today…
In a three-page letter sent to Pennsylvania Secretary of the Commonwealth Carol Aichele on Monday, DOJ requested state data on registered voters as well as the state’s list of individuals with driver’s licenses and ID cards.
Additionally, DOJ requested information on the state’s efforts to educate voters about the new law as well as documents and records supporting a March 14 statement from the office of Gov. Tom Corbett (R) which claimed “99 percent of Pennsylvania’s already have acceptable photo IDs.†(The state’s own data later proved that figure wrong.)
…
Pennsylvania has said that over 750,000 voters lack an adequate form of voter ID, a number greater than President Obama’s margin of victory in the state in 2008. One top Republican even said the voter ID law would help Mitt Romney win the state. As TPM reported, the public relations firm contracted to educate the public about the new voter ID law is stacked with Republicans.
This is a very encouraging development, at least for voters in Pennsylvania, if not the other states were disenfranchising Photo ID restrictions are moving forward without federal challenge, where local civil rights groups, to date, have been forced to file their own costly legal challenges to the discriminatory new laws.
The full 3-page 7/23/12 letter from the DoJ’s Asst. Attorney General, Thomas E. Perez, to PA’s Acting Secretary of the Commonwealth Carol Aichele, may be downloaded here [PDF].
Better late than never.
92-year old Viviette Applewhite, who marched for civil rights alongside Rev. Martin Luther King Jr. in Georgia and who has been voting in Presidential elections without a problem for more than 50 years, didn’t have the luxury to wait for the DoJ to finally step up to the plate.
She is now the lead plaintiff in Applewhite v. Commonwealth of Pennsylvania.
As explained by the Public Interest Law Center of Philadelphia:
The plaintiffs have filed a compelling trial brief [PDF] in support of their motion for a preliminary injunction, together with the affidavits from five expert witnesses.
In it they noted that PA Supreme Court decisions dating back to 1868, the right to vote under the right to vote is deemed “sacred” and “fundamental.”
They cite the Wisconsin cases which enjoined the Badger State’s Photo ID Law and argue that the statute is subject to “strict scrutiny” which requires that the Photo ID proponents demonstrate that the statute is narrowly tailored to achieve a compelling governmental interest — a standard that cannot possibly be met because of “the absence of any evidence of the in-person voter fraud that is the only fraud addressed by the Law.”
In arguing that the law’s “purported objectives smack of pretext,” they cite “Representative Turzai’s candid boast that the Law will give the election in Pennsylvania to Governor Romney.”
Their experts provide evidence on the number of PA voters who do not possess valid Photo IDs, the barriers for obtaining acceptable Photo IDs by naturalized U.S. citizens, residents born in Puerto-Rico, barriers and expense in obtaining birth certificates and expert testimony demonstrating that there is no history of in-person impersonation in the Commonwealth.
It seems just a tad ironic that this obnoxious assault on the fundamental right to vote would be played out in the birthplace of our Democracy.
“It seems just a tad ironic that this obnoxious assault on the fundamental right to vote would be played out in the birthplace of our Democracy.”
Which was the point the AFL-CIO made in an amicus brief it recently filed: http://freeandequalpa.wordpress.com/2012/07/24/afl-cio-and-seniorlaw-center-amicus-briefs/
Also, one of the expert reports submitted by the voters challenging the PA law indicates that there may well be evidence to support the notion that the law violates Section 2 of the VRA because the law disproportionally impacts women, Latinos, the elderly, the young and the poor: http://www.aclupa.org/downloads/BarretoReport.pdf
Thanks Free & Equal PA for the links and for your organization’s efforts to secure the right to vote in the Keystone state.
Here are some salient stats from the Barreto report, which was prepared by three university professors from the Universities of Washington and New Mexico.
37.3% of PA voters are unaware of the existence of the Photo ID law. 14.4% of potential voters (1,364,433), 12.8% of registered voters (1,055,200) lack a valid ID.
There are a large number of people who think they have the requisite ID but do not — something that raises the likelihood that voters will be either turned away at the polls or forced to cast provisional ballots simply because they did not realize what was required until they arrived at the polls.
They also reported: “Residents without access to a car are three to four times more likely to be without a valid photo ID” — a fact that underscores greater difficulty in obtaining the requisite ID.
The report ought to be required reading for every voter in Minnesota where the GOP is seeking to dupe citizens to pass Photo ID as an amendment to their state’s constitution.
“and for your organization’s efforts to secure the right to vote in the Keystone state”
As much as I would like to take credit for it, I am just a solo blogger reporting on the litigation.
We need a lot more Viviette’s in this world.
My wife and I are working in North Carolina for the Obama campaign to get people registered to vote.
Doing what we can, but I fully believe the GOP nutbags and the Tpublican billionaires are going to try to steal this election just like they did in 2004.
These people are rabid and will do ANYTHING to stop another 4 years of Obama.