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No I.D.? No Problem - Judge Blocks Pennsylvania Voter I.D. Law

Theodore Y. Choi, Esq. on 10/24/2012

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With the presidential election just a few weeks away, the upheaval in Pennsylvania over what voters must take with them to the polls has sparked a series of battles which is likely to continue. Temporarily however, it seems that opponents of the photo I.D. law have garnered much success.

The new law, codified at 25 P.S. §§ 2602, 2626, 3050 and otherwise known as Act 18, signed in March 2012 by Governor Tom Corbett in order to set a "simple and clear standard to protect the integrity of our elections," mandates that potential voters furnish a standard government issued identification card in order to be able to cast a vote, has been a continual subject of political controversy especially in the wake of the upcoming presidential election.

The proposed law requires that "[a]t every primary and election each elector who appears to vote and who desires to vote shall first present to an election officer proof of identification. The election officer shall examine the proof of identification presented by the elector and sign an affidavit stating that this has been done." 25 P.S. § 3050. Citizens voting in-person on Election Day must present one of several specified forms of photo identification. This proof of identification must include the name of the individual, a photograph of the individual, and an expiration date that has not passed. 25 P.S. § 2602.

Several individuals and organizations ("Petitioners") sought to enjoin the Commonwealth of Pennsylvania, Governor Thomas W. Corbett, the Secretary of the Commonwealth Carol Aichele, and their agents, servants, and officers from enforcing or otherwise implementing Act 18 and filed a request for preliminary injunctive relief with the Commonwealth Court of Pennsylvania for that purpose. In this case, initially docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 3332376 (Pa. Commw. Ct. 2012), Petitioners alleged that Act 18 and the photo identification requirement under the same violated the Pennsylvania Constitution on three (3) grounds:

  1. Act 18 unduly burdens the fundamental right to vote in violation of Article I, Section 5 of the Pennsylvania Constitution which states, in pertinent part, "Elections shall be free and equal…" PA. CONST. art. I, § 5.
  2. Act 18 imposes burdens on the right to vote that do not bear upon all voters equally under similar circumstances in violation of the equal protection guarantees of Article I, Section 1 and 26 of the Pennsylvania Constitution.
  3. Act 18 imposes an additional qualification on the right to vote in violation of Article VII, Section 1 of the Pennsylvania Constitution.

As the Petitioners did not possess a valid form of identification as required under Act 18, they argued that the new law would serve to cause them to be disenfranchised and/or severely burdened to comply with a new requirement. The Commonwealth Court analyzed Act 18 under a standard that "weigh[ed] the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule." Crawford v. Marion County Election Board, 553 U.S. 181 (2008). The burden "however slight … must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation." Crawford, 553 U.S. at 191. Rather than apply a strict scrutiny standard in its analysis, the Commonwealth Court adopted the standard announced in Anderson v. Celebrezze, 103 S.Ct. 1564 (1983), and applied the "flexible standard" in their analysis. Utilizing this standard, the Commonwealth Court found that the requirement of Act 18 is a "reasonable, nondiscriminatory, non-severe burden when viewed in the broader context of the widespread use of photo ID in daily life. The Commonwealth's asserted interest in protecting public confidence in elections is a relevant and legitimate state interest sufficiently weighty to justify the burden." Thus, the preliminary injunction was denied. However, the Commonwealth Court noted that if strict scrutiny were to apply, they may have reached a different conclusion.

Upon appeal of the Commonwealth Court's decision, the Supreme Court of Pennsylvania held that the Commonwealth Court erred by not conducting an assessment of availability of alternative photo identification cards prior to ruling on the preliminary injunction request seeking to delay the implementation of Act 18 stating that "the Commonwealth Court has made a predictive judgment that the Commonwealth's efforts to educating the voting public, coupled with the remedial efforts being made to compensate for the constraints on the issuance of a PennDOT identification card, will ultimately be sufficient to forestall the possibility of disenfranchisement. This judgment runs through the Commonwealth Court's opinion, touching on all material elements of the legal analysis by which the court determined that Appellants are not entitled to the relief they seek." This case is docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4075899 (Pa. Sept. 18, 2012). The Supreme Court's ruling remanded the matter to Commonwealth Court to make a decision by October 2, 2012, and make a present assessment of the actual availability of the alternate identification cards, directing the Commonwealth Court to conduct an analysis of whether the procedures used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards. Applying this analysis, the Supreme Court stated that if the Commonwealth Court found that the law would not result in voter disenfranchisement, the court would be obliged to enter a preliminary injunction.

After hearing two (2) days of testimony, on October 2, 2012, Pennsylvania Commonwealth Court Judge Robert Simpson ruled that state officials can ask for photo I.D. at the polls but cannot restrain those who do not possess identification from voting as the underlying offending conduct is not the request to produce photo I.D. but rather one of voter disenfranchisement.

In his ruling, docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4497211 (Pa. Commw. Ct. October 2, 2012), Judge Simpson granted a preliminary injunction that temporarily halts enforcement of the law until after the November 6, 2012, presidential election citing the disqualification of eligible voters as the reason: "Consequently, I am not still convinced in my predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth's implementation of a voter identification requirement for purposes of the upcoming election. Under these circumstances, I am obliged to enter a preliminary injunction." Despite a rise in the number of state issued photo identifications, the number was not significant enough to convince Judge Simpson that potential eligible voters would be prevented from voting if the new law were implemented. Even with the streamlined procedures outlined by the new law to allow voters without I.D. cards to obtain them, Judge Simpson stated, "I expected more photo ID's to have been issued by this time. For this reason, I accept Petitioners' argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed."

The result? Judge Simpson's ruling means that: (1) the same policy that was in effect during the state's primary earlier this year will continue to be in effect for the upcoming presidential election. Voters, regardless of compliance with the law, will be able to have their vote count in the 2012 presidential election; (2) those who cast provisional ballots will not be required to return to their county election board within six days of the election to show proof of identification in order to have their vote count.

Although the new law may not be in effect in Pennsylvania for the upcoming November 2012 presidential election, this does not mean to say that it will never be implemented in future elections. Judge Simpson's ruling did not strike down the entire law as being unconstitutional. In fact, he rejected efforts from those challenging the law to prevent state officials from educating voters about the Voter I.D. requirement. Challengers to the law have also conceded that the part of the law which requires proof of identification for absentee voting does not harm would-be voters and may be implemented.

Judge Simpson's ruling is surely to invoke an appeal. It waits to be seen whether future elections will be affected, but for now, at least temporarily, eligible voters can rest assured that they will be able to vote without fear of being turned away at the polls.

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