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Ruling for Access: Judge Allows Voters Without ID to Cast Regular Ballots in Pennsylvania

Liz Kennedy

This morning saw a big victory for Pennsylvania’s voters when a judge partially enjoined Pennsylvania’s strict new voter ID law in advance of next month’s elections.  Pennsylvania’s voters will not have to show a photo ID in order to vote a regular ballot this November. This victory will remove an unnecessary burden that threatened the freedom to vote for tens of thousands of voters this fall. However, the possibility for confusion at the polls and the larger threat over the long-term remains.

Judge Simpson chose only to enjoin the part of the law that requires voters without voter ID to vote a provisional ballot. However, voters may still be asked for voter ID at the polls. If they do not have it, instead of being required to vote a provisional ballot, they will still be allowed to vote a regular ballot. This is a critically important distinction, and hopefully not a recipe for confusion.

The judge rejected the Commonwealth’s argument which

[S]uggest[s] that a qualified elector be asked to produce proof of identification, but be allowed to cast a provisional ballot. This argument fails to acknowledge the General Assembly’s express intent that during the transition into full implementation of Act 18, an otherwise qualified elector need not cast a provisional ballot.

Pennsylvania’s Supreme Court had sent the case challenging the new strict voter ID law back to the lower court last month after Judge Simpson first refused to prevent the law from being in effect this November. The Supreme Court ordered Judge Simpson to enjoin the law unless he found that there would be “no voter disenfranchisement . . . for the purposes of the upcoming election.”

Upon further review, Judge Simpson found that “assurances of government officials” was not enough to meet the requirement of “liberal access” to the required identification documents. “I expected more photo IDs to have been issued by this time,” he wrote, continuing:

[T]he proposed changes are to occur about five weeks before the general election, and I question whether sufficient time now remains to attain the goal of liberal access. . . .the proposed changes are accompanied by candid admissions by government officials that any new deployment will reveal unforeseen problems which impede implementation.

However, the judge still chose only to block some parts of the law, while allowing others to move forward. Rather than taking the common sense position that this new program is simply not ready for prime time and enjoining the entire law until after next month’s election, the judge

[R]eject[ed] the underlying assertion that the offending activity is the request to produce photo ID; instead, I conclude that the salient offending conduct is voter disenfranchisement. As a result, I will not restrain election officials from asking for photo ID at the polls; rather, I will enjoin enforcement of those parts of [the law] which directly result in disenfranchisement.

Essentially, the judge looked at the slow roll-out built into the law, described as a “soft run.” During the first elections after passage of the law, from January through September

[A]n otherwise qualified elector who does not provide proof of identification may cast a ballot that shall be counted without the necessity of casting a provisional ballot.” Judge Simpson issued an injunction that “will have the effect of extending the express transition provisions of Act 18 through the general election.

Thus, there is no requirement that a voter use a provisional ballot for failing to have ID. Even if she shows up without photo ID, and even if the poll worker asks for ID she doesn’t have, she can still cast a regular ballot at the polls.

Provisional ballots are meant to be a fail-safe mechanism, but they fall dangerously short. In fact, 38.6 percent of the provisional ballots cast in Pennsylvania in 2010 were rejected. And in 2008, of the almost 33,000 provisional ballots cast a whopping 44 percent of them were rejected -- over 14,500 provisional votes thrown out and not counted.

Another important point is that while this is very good news for voters in this election cycle, this is another instance in which the court fails to recognize the continuing problems associated with strict voter ID requirements. The idea that somehow every voter will get IDs prior to the next election, and that therefore the law will no longer be an obstacle for voting, just isn’t correct. The population that lacks photo ID isn’t static. There will always be a new set of people who’ve let their drivers license lapse because they are too elderly to drive or become disabled; people turning 18 who live in urban areas and have no reason to get a driver’s license; women who change their name through marriage resulting in ID problems.  Getting IDs to people is not something that just gets solved once and for all in one election cycle.

This drawn out litigation serves as a reproof to Pennsylvania’s leaders who pushed forward this ill-conceived law -- reportedly for partisan gain.  Hopefully any states considering adopting these unnecessary voting rights restrictions will decide to avoid embroiling themselves in expensive litigation. Pennsylvania itself -- after agreeing in court that there hasn’t been voter fraud and that they don’t expect voter fraud to occur in the absence of the law -- should repeal the voter ID requirement.

The struggle against voter disenfranchisement in Pennsylvania continues, but the impact on voting rights in the elections this fall has been mitigated.