Pennsylvania's Voter ID Law: Takes a Licking but Keeps on Ticking

The latest court order blocks election officials from requiring ID, but not from asking for it.

Lines at Pennsylvania Department of Transportation offices around the state have exploded in response to the voter ID law, as residents without identification scramble to secure it by the election. (Tom Mihalek/Reuters)

The Pennsylvania voter ID law, which was partially blocked Tuesday from going into effect for the November election, has begun to resemble Bishop, the unkillable android played by Lance Henriksen in James Cameron's Aliens. Just as Bishop's artificial body kept being cut into smaller and smaller bits without giving up the fight against the aliens, the ID law keeps losing in court but staggering forward in mutilated form.

In the latest order, Commonwealth Court Judge Robert Simpson enjoined part of the law -- but he made clear that he was only grudgingly applying the mandate of the Pennsylvania Supreme Court, and interpreting it as narrowly as possible. It's easy to understand his truculence -- Simpson had heard argument on the law once, and had issued an opinion upholding it. But on September 13, the Supreme Court reversed that decision. And then, instead of deciding the case, they threw it in all its glory back to Simpson, instructing him to hear further evidence on the state's apparent refusal to make IDs available to voters as required by the law. He was then to enjoin the law himself "if the Commonwealth Court is not still convinced in its predictive judgment that there will be no voter disenfranchisement."

In other words: We duck, you take the bullet. Pennsylvania state judges are elected in openly partisan elections; polls show that the ID law is relatively popular with voters. Simpson may feel a bit as if his limb is busily being sawed off.

Nonetheless, his order is strikingly narrow. Under the law as it was to go into effect in November, election judges were to ask each voter to produce a state-approved ID. If no ID could be found, the election judge would allow the voter to vote using a "provisional ballot," then get proof of identity to the county board of elections within six days of the election in order to have the vote counted.

Judge Simpson today decided that there will be "voter disfranchisement" if and only if the votes of voters lacking ID are not counted. That means that there will be no provisional ballot requirement for voters who don't have ID; they will be given a regular ballot. However, he also decided that merely asking for ID is not "disfranchisement." Thus, under his order, the election officials can still ask for approved ID. If the voter can't produce it, the officials must allow the voter to vote, and must give the voter information on the new ID requirements so that the voter can get an ID for future elections.

It is, to be sure, an important win for voting rights. This is much better than allowing the law to take effect, clogging the polls with voters filling out provisional ballot forms and requiring citizens to return to election boards with ID that many of them probably can't get in six days. But asking voters for ID that is not required is still likely to cause concern and confusion, and may discourage some voters from showing up at the polls or remaining in line. The provision of information about the law, in the hands of partisan election officials, can easily shade over into outright intimidation. The chance of long lines and disputes at the polls is greater.

The whole system would work a good deal better if Judge Simpson had just enjoined the whole steaming mess pending a trial on a permanent injunction. "Disfranchisement" doesn't just occur when a ballot isn't counted; it also takes place when ballots aren't cast, whether because of long lines, intimidation, or confusion. It's a shame that the Pennsylvania courts have chosen such a crabbed view of democracy's fundamental right.

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Garrett Epps is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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