Philadelphia, PA—A wave of new voting restrictions have been struck down by the courts in recent weeks. A major exception is Pennsylvania, where Commonwealth Court Judge Robert Simpson, a Republican, declined to issue a preliminary injunction against the state’s controversial voter ID law on August 15. Today in Philadelphia, the Pennsylvania Supreme Court convened in a packed, standing-room-only courtroom to revisit the law. A decision is expected in the next few weeks to determine whether Pennsylvania will be the largest swing state with a new, restrictive voter ID law on the books for the 2012 election.
David Gersch, the lead lawyer for the plaintiffs (which include voting rights groups such as the ACLU and the Advancement Project), argued that Judge Simpson erred in failing to conclude that Pennsylvania’s voter ID law “impermissibly violates the right to vote.” Gersch noted the significance of holding the hearing in Philadelphia, “the birthplace of American democracy,” in a state whose constitution explicitly protects the right to vote.
Gersch asked, once again, for an injunction against the law based on three major points: (a) “the right to vote is a fundamental right” harmed by the law; (b) the voter ID law was not a mere election regulation but something far more significant and burdensome; and (c) the law was not narrowly tailored toward its legislative goal of stopping voter fraud.
Toward that end, Gersch offered three major facts that are central to the case: (1) Pennsylvania has already admitted in court filings that there is no evidence of in-person voter impersonation that a voter ID law would stop; (2) that hundreds of thousands of registered Pennsylvania voters do not have the new voter ID; and (3) that many of these registered voters without voter ID will have difficulty obtaining an ID, either because they can’t get, or afford, the underlying documents, like a birth certificate, needed to receive a Pennsylvania Department of Transportation (PennDOT) ID or can’t easily make it to a PennDOT office, which have limited hours and locations.
Gersch noted that the election is only fifty-four days away and yet the state remains unprepared to implement the law and doesn’t seem committed to ensuring that every registered Pennsylvania voter has the opportunity to cast a ballot. “The vice is not in requiring photo ID,” he said. “The vice is requiring a photo ID that not everyone has and has trouble getting.”
The number of voters who don’t have ID has varied wildly according to estimates, ranging from 1 percent to 12 percent of registered voters. The state initially alleged that 99 percent of voters had ID, but a state official admitted that figure was calculated in less than twenty-four hours with limited data. A Department of Transportation study found that 758,000 registered voters did not have a PennDOT ID—a number the state disputes. University of Washington political scientist Matt Baretto, a witness for the ACLU, found that more than 1 million registered voters didn’t have valid voter ID. Judge Simpson said that the number “is somewhat more than 1 percent and significantly less than 9 percent,” which still leaves 100,000 to 500,000 registered voters without ID, Gersch noted. Yet only 6,000 voters have thus far obtained a Penndot ID for the purposes of voting. “I would suspect that we would not be anywhere close to issuing 10,000 of those cards,” said Kurt Myers, deputy secretary of safety administration at PennDOT.
There’s an alarming gap between the number of people who need to get ID and the number of people who’ve already obtained them. “The immediate harm is the disenfranchisement of thousands of Pennsylvanians?” Judge Seamus McCaffery, a Democrat, asked Gersch.
“Yes,” Gersch responded.
And Pennsylvania has made scant preparation to make sure every registered voter gets the required ID. “If the Commonwealth had a process to get everyone ID, this case wouldn’t be necessary,” Gersch said. Nine counties in Pennsylvania have no PennDOT office. In thirteen counties, the office is only open one day a week—which gives voters roughly seven opportunities between now and Election Day to obtain the right ID. Half of PennDOT offices don’t provide a voter ID or are open only one or two days a week. “It sounds a little bit like a nightmare,” said Judge Debra Todd, a Democrat.
Gersch recommended steps to make it easier for people to vote based on reforms undertaken in other states: mail a voter ID to every voter (like in Virginia), allow everyone to vote via absentee ballot (like in Georgia), provide mobile DMVs (also in Georgia), allow voters to sign an affidavit attesting to their identity if they don’t have photo ID (like in Michigan). “Pennsylvania is a case study in how not to do this,” Gersch said. “There’s too little time, too many people affected, no guarantee every qualified elector can cast a ballot.” The state only relaxed the ID requirements at the end of last month, allowing a “safety net” ID for people who’ve exhausted every other option, which simply requires a name, address, Social Security number and proof of residency to get an ID. It remains to be seen how many people will learn about, and take advantage of, this latest change to the law.
Judge Thomas Saylor, a Republican, asked Alfred Putnam, a lawyer for the state, if there was a statute in the law that authorized the new backup ID. Putnam said there was not; the change was instituted via administrative rule by Secretary of the Commonwealth Carole Aichele, whose husband is now Pennsylvania Governor Tom Corbett’s chief of staff. Putnam blamed the media for stirring fears of voter disenfranchisement. “We don’t believe there are countless numbers out there who can’t get ID—that’s what the newspapers say!”
Several justices noted that the Pennsylvania Bar Association recommended that the voter ID law be implemented over the course of two federal election cycles. “What’s the rush?” Judge Todd asked John Knorr, another lawyer for the state. “Would it be better if we had two years and not fifty-five days?”
“It would be better,” Knorr said.
Putnam said that the legislature passed the law in March 2012 because of “declining confidence in our electoral system.” The irony is that, as a result of confusion and anger over the law, confidence in the integrity of Pennsylvania’s elections has never been lower. Indeed, Judge McCafferey referenced Pennsylvania House Majority Leader Mike Turzai’s infamous statement that the voter ID law “is gonna allow Governor Romney to win the state of Pennsylvania.”
The state Supreme Court is split 3-3 between Democrats and Republicans (a fourth Republican judge was suspended after using public funds on her campaign). Thus four votes are needed to overturn the lower court’s decision. The Democratic judges spoke frequently and asked pointed questions of the state. The Republicans judges, with the occasional exception of Saylor, said almost nothing. Chief Justice Ronald Castille, who overturned the GOP’s redistricting plans and is thought to be the swing justice on the court, stayed mostly silent and appeared irritated, at times, with the outspoken Democrats. “We got three votes but that doesn’t help us,” Vic Walczak, legal director for the Pennsylvania ACLU, told me after the hearing. “We need a fourth.”
For more on Pennsylvania and other states’ voting laws, see The Nation's Voting Rights Watch.