Raising the Bar for Voter ID -- And Redefining Election Integrity in Pennsylvania

Election integrity is impaired when eligible Americans are prevented from exercising their fundamental right to vote and having their voices heard on the issues that affect their lives. The Supreme Court of Pennsylvania just said the same thing when considering a new voter ID requirement, writing “if the Law is enforced in a manner that prevents qualified and eligible electors from voting, the integrity of the upcoming General Election will be impaired.”

This week the citizens of Pennsylvania can have a little more faith in the integrity of their elections. Its Supreme Court sent the Commonwealth’s strict voter ID law back to the lower court with orders that it must refuse to allow the law to go into effect unless it finds that “there will be no voter disenfranchisement arising out of the Commonwealth’s implementation of a voter identification requirement.”

That is a very high bar to meet. But it is also kicking the can down the road a bit by the Supreme Court’s majority. With fewer than 50 days before the election, and on a record which demonstrates disenfranchisement and where the state stipulated that there was no fraud that this law would remedy, the court should have prevented additional confusion and enjoined the law before the election.

The law requires a voter to bring a very restrictive inflexible form of identification, but it also requires “liberal access” to that free form of identification. However, instead of allowing liberal access to a free form of identification that the law would require voters to bring to the polls, Pennsylvania continues to require an applicant to present “a birth certificate with a raised seal . . ., a social security card, and two forms of documentation showing current residency.“ The Commonwealth has conceded that “the Law is not being implemented according to its terms.”

Moreover, the record of the trial court that initially refused to enjoin the law and prevent it from being in place for the November elections is clear -- there are eligible voters who will not be able to get the required identification in time for the elections. The opinion states that “both state agencies involved appreciate that some registered voters have been and will be unable to comply with the requirements” to get the required identification card. A deputy secretary for Pennsylvania’s Department of Transportation testified that “at the end of the day there will be people who will not be able to qualify for a driver’s license or a PennDOT ID card.”

This is a clear admission that eligible voters will be unable to vote should this strict ID requirement be allowed to be in place for November. Over 750,000 Pennsylvania voters do not have the ID that would be required. The court writes “there is little disagreement . . . that the population involved includes members of some of the most vulnerable segments of our society (the elderly, disabled members of our community, and the financially disadvantaged).”

This record, as the two judges who dissented note, “is fully sufficient to determine, without equivocation, that a preliminary injunction should be granted.” Therefore, “for the good of the electorate, and to foster respect for the judiciary and the integrity of the electoral process” they would refuse to allow the law to go into effect before the November elections:

Where a fundamental constitutional right is at issue -- arguably the fundamental right -- an implementation of even a lesser burden on the exercise of that right, ten weeks before it is to be exercised, is simply unreasonable and constitutionally unsupportable. Indeed, the Commonwealth’s activities . . . are a tacit admission that [the voter ID law] is simply not ready for the prime time of the November 6, 2012 election.

The dissent notes that the majority opinion requires that “any voter disenfranchisement arising out of the Commonwealth’s implementation of a Voter Photo ID requirement before the November 2012 election obliges the Commonwealth Court to enter a preliminary injunction.” But the record is already clear, and the Supreme Court ought already to have enjoined the law.  As Justice Todd writes, “there is ample evidence of disarray in the record, and I would not allow chaos to beget chaos. The stated underpinnings of [the voter ID law] -- election integrity and voter confidence -- are undermined, not advanced” by the Court’s decision to punt instead of enjoining the law, since at this point “the voters are entitled to know the rules.”

Justice McCaffery concludes his dissent with a forceful statement of conscience and reflection on what election integrity really means in a democratic society:

I was elected by the people of our Commonwealth, by Republicans, Democrats, Independents and others. . . . I cannot now be a party to the potential disenfranchisement of even one otherwise qualified elector, including potentially many elderly and possibly disabled veterans who fought for the rights of every American to exercise their fundamental American right to vote. While I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing [the law] prior to the November 2012 election is purely political. That has been made abundantly clear by the House Majority Leader. [ ]I cannot in good conscience participate in a decision that so clearly has the effect of allowing politics to trump the solemn oath that I swore to uphold our Constitution. That Constitution has made the right to vote a right verging on the sacred, and that right should never be trampled by partisan politics.

The lower court has been ordered to rule by October 2.  May it protect the integrity of elections in Pennsylvania by refusing to allow an unreasonable, unnecessary burden on the fundamental freedom to vote.

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