Today, democracy in Pennsylvania was granted a reprieve. For now. Of a sort.
In response to a recent state Supreme Court remand, unanimously voiding his previous August ruling, Commonwealth Court Judge Robert Simpson, a Republican, issued his new ruling [PDF] today on the state GOP’s polling place Photo ID restriction law.
He enjoined just a part of the law, but it effectively strikes down the most onerous provision of it — but only for this November’s Presidential election. There were also a number of troubling caveats with what he left in place, rather than striking down the entire statute as the petitioners had sought.
There has been some confused and confusing reporting on the ruling today. Here is where — barring any additional court challenges — the law stands at this moment, just over one month from Election Day…
- Voters will NOT have to show a state-issued Photo ID at the polling place in order to cast a normal ballot.
- Poll workers SHALL ask voters for Photo ID, but they may NOT keep them from voting if they do not have one.
- Voters will NOT have to cast a provisional ballot if they do not have state-issued Photo ID.
Hopefully that clarifies the key points of today’s ruling, which is being misreported in some quarters.
Also of note, the court refused to enjoin the Commonwealth’s tax-payer funded $5 million ad campaign, as written into the statute for the purposes of “educating” the public about the polling place Photo ID requirement (even though it no longer practically applies for this election.)
Given that, and given that poll workers may still ask for ID this November, and given that the Photo ID requirements, barring more legal challenges, will be allowed to take effect next year, it is almost guaranteed that confusion will reign in parts of Pennsylvania this year. On the upside, the 1.6 million otherwise-eligible voters who it was feared could be disenfranchised, will at least be allowed to vote in this year’s Presidential election, presuming they can navigate all of the confusion left in place by Judge Simpson.
Contrary to the claim made by GOP “voter fraud” fraudster, Hans Van Spakovsky, the court did not rule on the constitutionality of PA’s Photo ID statute. A ruling on that aspect of the law will not be made until after the case proceeds to a trial, following the election, on the plaintiff’s request for a permanent injunction.
Tonight, MSNBC’s Rachel Maddow also discussed the confusion likely to be brought by the state’s continuing ad campaign along with the other vagueries allowed to continue by Judge Simpson’s ruling today…
She correctly notes that the effect could be that voters are misled into believing that they should stay away from the polls if they do not have the type of ID previously required under the law this year, as advertised in the state’s “education” campaign. In short, she argues, Republicans are likely to get the many “benefits” of the law (disenfranchisement of Democratic-leaning voters), even with the most onerous elements of it barred for now.
Maddow also discussed similar confusion, purposely imposed by Republicans in Mississippi, concerning their Photo ID initiative, as well as some of the latest details in the GOP Voter Registration Fraud Scandal. (For the record, Maddow did a much longer piece last night, devoted entirely to the GOP Voter Registration Fraud Scandal. That segment can be found here. Her insightful piece on the PA Photo ID ruling tonight, and the other items mentioned above, follows below)…
Brad,
It is true that the ruling today is a huge improvement over having my state going ahead and trying to enforce the Photo ID law fully in only 35 days.
That said, there will also be fallout:
     1) It is not clear whether or not pollworkers will HAVE to ask for the Photo ID. As you know I am a 20+ year Judge / Inspector of Elections in PA and I can tell you we have not received official instruction from our counties at this point. But our Governor and others said publicly today that their interpretation is pollworkers WILL have to ask all voters for the Photo ID on November 6; if a voter doesn’t have it we will let them vote normally on the machine anyway (ugh, the MACHINE!) and not turn them away or make them vote provisionally. This is better than it was, but will certainly lengthen the lines and maybe will discourage some people from coming out to vote.
2) The above WILL cause confusion by pollworkers and voters alike. Ads that say Photo ID is required are still running. A spokesperson for the PA Department of State said tonight that the DOS will pull and revamp their ads to reflect the Commonwealth Court ruling and they hope to have this done by the weekend. But in the meantime I am seeing ads that say the ID is required. For example this evening on MSNBC my local provider was running ads by a well-meaning Democratic State Senator who was trying to help to make sure everyone has the ID. Now he has to pull down his ads and pay to have them changed! I am sure because of all this there will be confusion on Election Day. And we have our work cut out for us to prevent as much of it as we can.
3) This is not really a full win. It’s more like a time out; we still have to fight this battle into next year and beyond. PA voting rights groups must gear up and make sure everyone knows what will be required (or not) on November 6. And we must make sure that other serious election issues don’t get ignored (like the fact that about 85% of PA voters — 50 counties — are still using aging and totally unverifiable DRE voting machines!)
I respectfully ask your readers to send BradBlog all the support they can (and thank you for your coverage of PA) but then after that I respectfully ask those in “safer” states than PA to also please consider sending something to the Election Integrity organization of your choice that is working in Pennsylvania. Because a lot of groups in PA are really getting strapped. And this fight is NOT over.
Thank you again Brad for all you do and for your coverage of PA!
Marybeth
Marybeth @1 wrote: “It is not clear whether or not pollworkers will HAVE to ask for the Photo ID.”
It seems pretty clear to me that poll workers will be required to ask for ID. Judge Simpson’s order says: “It is the intent of this Preliminary Injunction to extend the transition procedures described in Section 10(1) of Act 18 beyond September 17, 2012, and through the general election of November 6, 2012.”
Section 10(1) says (emphasis added):
“Section 10. The following shall apply to elections held after January 1, 2012, and prior to September 17, 2012:
(1) (i) Except as provided under subparagraph (ii) and notwithstanding any law, election officials at the polling place at an election held after January 1, 2012, shall request that every elector show proof of identification.
(ii) Notwithstanding subparagraph (i), prior to September 17, 2012, if the elector does not provide proof of identification and the elector is otherwise qualified, the elector may cast a ballot that shall be counted without the necessity of presenting proof of identification and without the necessity of casting a provisional ballot, except as required by the act.”
I am also a Judge of Election and my county election board also has not yet notified us about the import of the decision, but I expect to receive something soon and I am confident that, after they read the order, the board will conclude that we are required to ask for photo ID.
Another possible issue with the ruling: Does Judge Simpson’s injunction inadvertently violate the first-time voter identification requirement in the Help America Vote Act? You can read more about the question here.
Thank you Marybeth and Free & Equal. I agree that, based upon Section 10(1)(i), the appropriate word is “shall” and corrected the body of the article to reflect that.
Here’s a suggestion. A poll worker can use this pitch:
Ever wonder why the democrats didn’t clean up the US election system when they had the majority in the House , Senate and occupied the WH?
From the 14 points of fascism
14. Fraudulent elections
Elections in the form of plebiscites or public opinion polls were usually bogus. When actual elections with candidates were held, they would usually be perverted by the power elite to get the desired result. Common methods included maintaining control of the election machinery, intimidating and disenfranchising opposition voters, destroying or disallowing legal votes, and, as a last resort, turning to a judiciary beholden to the power elite.
NOTE: The above 14 Points was written in 2004 by Dr. Laurence Britt, a political scientist. Dr. Britt studied the fascist regimes of: Hitler (Germany), Mussolini (Italy), Franco (Spain), Suharto (Indonesia), and Pinochet (Chile).
> Another possible issue with the ruling: Does
> Judge Simpson’s injunction inadvertently violate
> the first-time voter identification requirement
> in the Help America Vote Act? You can read more
> about the question here.
The PA legislature doesn’t have the authority to modify federal law. Suggesting that they somehow changed HAVA is confused at best.
I expect that the ruling (or sane interpretations of it) will allow for other laws to remain in effect.
Trying untangle the particulars of things like this with precision is like untangling spaghetti, except spaghetti is more pleasant.
NateTG @5: I think you misunderstand my point (and I apologize if I was not clear). HAVA does not require first-time voters to show ID — it requires STATES to pass laws that require first-time voters to show ID. The problem is that, after the ruling yesterday, PA no longer has a law that complies with HAVA’s first-time voter ID requirement (I think) and, therefore, it is in violation of HAVA’s requirement that it have such a law.
HAVA says: “a State shall, in a uniform and nondiscriminatory manner, require an individual to meet the requirements of paragraph (2)[which requires first-time voters who register my mail to show ID].”
That means that Pennsylvania was required by HAVA to pass a law requiring first-time voters who register by mail to show ID. The Legislature did that through the preexisting law (which required first time voters who registered by mail to show ID). The new Photo ID Law also complied with HAVA because it required first-time voters who registered by mail — and everyone else — to show photo ID. So both the preexisting law, and the new Photo ID Law that was in place until Judge Simpson issued his injunction yesterday, complied with HAVA.
But, after Judge Simpson’s ruling, the PA Election Code no longer contains a provision requiring first-time voters to show ID and, therefore, the Code does not comply with HAVA.
Here is a simply way to look at it: Show me the provision of the PA Election Code that, after Judge Simpson’s ruling yesterday, requires first-time voters who registered by mail to show ID. I am confident that you will not be able to find such a provision. And that’s the problem — without such a provision, PA is not complying with the mandate in HAVA that “a State shall . . . require” ID from first-time voters who register by mail.
Have a look at this thread regard advertisements to hire people to do this type of voter registration:
http://www.democraticunderground.com/10021456572
Two types of ads:
http://regionalhelpwanted.com/Search/detail.cfm?SN=39&ID=74653346
and
http://pueblo.craigslist.org/lab/3293934367.html
Obviously, a pretty organized effort that they cannot blame on these new hires
What Molly said, above at #4, except for Britt’s 1-13, in addition.
http://tinyurl.com/bgsvx
Free & Equal: Since Judge Simpson indicated that what he was seeking was to duplicate the law that was in place during the Sept. primary, then if the law at that time required first time voters to provide Photo ID; that law will remain in place for the Nov. 6 general election as it pertains to first time voters.
Notes to all… there is still confusion here on the ground in PA. Some news outlets are reporting that pollworkers MAY ask and some say they WILL (have to) ask for the ID.
I agree that the Judge’s ruling requires the latter, but remember PA is a commonwealth and counties have a lot of autonomy regarding elections here. Personally I suggest waiting to see what instructions are actually given to the pollworkers by the various counties. Some counties may find that forcing pollworkers to ask for ID that is not required is a waste of time in a huge election, and knowing PA I doubt anyone will get arrested for contempt of court if they do that. I could be wrong, but we’ll see.
Yes we are worried about the first-time voter HAVA requirement causing more confusion because of this… people and media are going around saying that no ID is required to vote in November but that HAVA requirement DOES still stand. So yes, there is more opportunity for confusion that could cause someone to get pushed onto a provisional ballot if they are a first-time voter who shows up without ID or maybe they’ll just stay home.
FYI, Based on our Act 150 passed in 2002 in response to HAVA Pennsylvania requires ALL first time voters in a precinct to show ID (doesn’t have to be photo ID) even though HAVA said this applies only to voters who registered to vote by mail.
Anyway… in the meantime as I said above, according to a Tuesday evening appearance by a PA Department of State Communications director on statewide PA Cable Network TV, the PA DOS is pulling their Photo ID ads and will try to have them up by the weekend to reflect the judge’s ruling. I have not seen any Photo ID ads on TV here today.
PA Governor Tom Corbett held a press conference Tuesday at a partisan Romney event and Voter ID questions took over. It was rather disconcerting to watch the Gov answering these obviously nonpartisan questions about state policy with a huge “Romney” sign plastered to his podium. Kind of another clear indication why the law was passed??
This is a hell of a mess, and as I said in the meantime other massive election threats are being ignored in PA like our seven year-old DREs.
Ugh.
Marybeth
Ernest @9:
I absolutely agree with you that duplicating the situation during the primary was the result Judge Simpson intended. Unfortunately, the Order he issued does not actually accomplish it. Instead, as of yesterday’s ruling, there is no law in PA requires first time voters to show ID.
Ernie,
Sometimes the voting machinations look like a modern form of alchemy.
Just drop this paper in that box, or push these buttons, and soon all these problems will go away.
My apologies if this is a foolish question, but since there seems to be alot of well-informed responses here, it seems like a good place to ask it:
I keep seeing it worded as a person will be permitted to vote if they do not have a photo ID. I’m wondering at the repercussions of having one, but electing (pun intended) not to produce it in protest to the law? Since it’s not required, it would seem I would still be able to vote. However, before I do something along these lines, or suggest it to anyone else, I’m concerned that some little-known law regarding something like “refusing to cooperate with a voting official” or something similar might cost me the ability to cast a ballot.
Marybeth Kuznik @10 wrote:
Since Judge Simpson enjoined only that portion of Act 18 that pertained to disenfranchisement as a result of not being able to produce a Photo ID at the polls, I do not believe that the injunction extends to the provisions of Act 150 which require first time voters to show “an ID” but “not necessarily a Photo ID.”
Re Seth McFarland @13: The ruling mandates that poll workers ask voters if they have a Photo ID. It doesn’t say that those who have them must produce them. And since the absence of the Photo ID is not a basis for refusing to hand the voter a ballot, the refusal to show the ID should not be a basis for doing so.
But why refuse? Given that a smooth running election is in the interest of democracy, I believe that this form of civil disobedience would be counterproductive.
Seph McFarland said @13:
As Ernie noted, no, you do NOT need to show your Photo ID, even if/when asked for it. There is not “refusing to cooperate with a voting official” law that would apply here. You do NOT have to show them your Photo ID if you do not want to.
Moreover, I’ll part slightly with my friend Ernie’s response to you @ 14, where he asked:
I don’t. I actually believe it would be productive. If Seph says I don’t have a Photo ID, or says I don’t wish to show it to you, and the poll worker subsequently tells him he can’t vote or must vote by a provisional ballot (both in contradiction to the law is it currently stands), it may help to show that this poll workers, and others, are disobeying the law and, it may help us see that many voters are becoming disenfranchised.
I think it’s actually a good idea for those who know the law (as Seph now does), to test the system in that way on Election Day, and make sure that poll workers are doing it right — and I bet they will NOT be, in many places!
I’m with Brad. I detest showing ID, so I do my best not to at every reasonable opportunity (I cooperate with people carding me for buying alcohol). It’s my little blow at security theater.
CambridgeKnitter @16 wrote:
Oh, do I miss the days when I was young enough that someone would actually ask me for an ID to buy a beer!
Seph McFarland @13:
In my polling place, when my fellow polls workers and I asked for photo ID during the primary, several people said they refused to show one in protest of the law. We handed the voter a card explaining that the new law would require them to show photo ID in the future, and then handed them a ballot. So, in my precinct, you would get no hassle whatsoever.
That said, I am fairly confident that not all poll workers spend and much time as I do trying to understand the law, so I could easily see a poll worker — either out of confusion or animus — giving you a hassle if you protest.
Let us know how it turns out, and please document any shenanigans poll workers attempt to pull.
Just to clarify:
Pennsylvania’s Act 150 of 2002 amended Section 1210 of the PA Election Code to, among other things, require first-time voters to show ID. Act 150 is not some stand-alone law that can be enforced on it own. Rather, it simply amended the Election Code.
Ten years after Act 150 was passed, the Legislature passed Act 18 of 2012, which amended the Election Code again. Among other things, Act 18 removed the first-time voter ID requirement and replaced it with a requirement that everyone show photo ID at every election.
Judge Simpson’s October 2 injunction blocks the state from enforcing that new provision — that everyone show photo ID — for the November election. His order did not, however, “revive” the former version of Section 1210 that required first-time voters to show identification.
Ernest has advanced what I think is a pretty decent argument — that although Judge Simpson’s order does not explicitly say so, it can be fairly read in context as “replicating” the law as it existed during the primary (when first-time voters still had to show identification). But it would be a mistake to argue that Act 150 of 2002 still somehow controls here. The portions of that Act that amended Section 1210 unquestionably were superseded by Act 18 of 2012.
Thank you to everyone for sharing your thoughts. Based the opinions shared, it’s my intention to politely state that I’m declining to show a photo ID in protest of the law, as it’s my understanding that I don’t need to at this time. I’ll let everyone know how it goes.
In reply to Mr. Canning’s question regarding why I will be doing this: Based on a number of things I’ve learned, it’s my opinion that this law is far more motivated for political reasons, than because of any attempt to prevent a problem that doesn’t seem to exist. My apologies for being a bit dramatic, but hanging above my desk as I write this is a quote by FDR that I won’t quote here as I’m sure most people are familiar with it. However it’s the one that begins “We must srupulously guard the civil rights and civil liberties of all citizens…” It’s my belief that, even after 237 years, we must all hang together.