The Uncertain Future of Voter-ID Laws

In striking down Pennsylvania's ID requirement at the polls, Judge Bernard L. McGinley has given supporters of such laws in states across the country a reason to worry.
A Pennsylvania polling station (Reuters)

It's way too early to forecast the fate of the Voting Rights Amendment Act of 2014, the federal legislation introduced Thursday in response to the United States Supreme Court's decision last June in Shelby County v. Holder which struck down the heart of the Voting Rights Act. This sensible new measure has bipartisan support. But already there are grumblings on the right that the bill either isn't necessary or that it too boldly protects the rights of minority citizens to be free from what we used to call discriminatory voting practices (but which the Supreme Court wants us now to call "the exercise of state sovereignty").

But it's not too early to know that state voter identification laws will  have an exalted place of protection in the Congressional response to Shelby County no matter what the final legislation looks like. In an effort to garner bipartisan support, that is to say in an effort to appease Republican lawmakers, the bill's sponsors specifically exempted state voter ID laws from the litany of discriminatory voting policies and practices that would count under the new "coverage formula" contemplated by Section 4 of the proposed law. It's like proposing a law to ban football and then exempting the Super Bowl.

The VRAA tells us that it will be left to state and federal judges around the nation to render their own judgment about the constitutionality of voter ID laws. And right on cue, the day after the federal measure was introduced on Capitol Hill, a judge in Pennsylvania did just that. Following a lengthy trial last summer, and six months of agonizing delay, Commonwealth Court Judge Bernard L. McGinley on Friday struck down Pennsylvania's new voter ID law as violative of the constitutional rights of state voters. Here is the link to the ruling, which state Republicans were absorbing Friday as they decided whether to appeal.

The ruling is significant on its own terms, of course; it's a major victory for voting rights advocates and a setback for vote suppressors in the state and everywhere else. As a matter of politics the import is clear. Pennsylvania is an eternal swing state—although it has swung blue most recently in national contests—and it is still considered a must-win for Democratic candidates for president. By blocking a law that would have erected practical impediments to mostly poor, young, old, and minority voters, Friday's ruling makes it more likely that those likely Democratic voters will have their votes counted in 2014, at least.

The ruling also is important as a matter of the historical record. Pennsylvania is the state, remember, where the full racial and partisan dimensions of these voter ID laws bubbled up to the surface in 2012. That summer, one state lawmaker talked about voters being "too lazy" to get their required new ID cards. Another, the state House Majority Leader, boasted that enforcement of this very law would deliver the state to Mitt Romney. Indeed, one of the most generous components of Judge McGinley's ruling is that he expressly discounts these motives as a basis for striking down the law. From Footnote 33 of the ruling:

The House Majority Leader's unfortunate comments notwithstanding, there is no evidence that the purpose behind the Voter ID law was to disenfranchise minorities or persons who, along party lines, may be more inclined to vote for Democratic candidates. Moreover, "no case in [the Supreme] Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it." Palmer v. Thompson, 403 US. 217, 221 (1971).

But mostly the ruling is significant—and will have ramifications far beyond the Keystone State—because it represents the judicial result of the first, full-blown evidentiary trial to be held in a voter ID case since the Supreme Court triggered the current generation of voter suppression laws with its 2008 ruling in an Indiana case styled Crawford v. Marion County. None of the court challenges that stymied voter ID laws in the run-up to the 2012 presidential election ever were resolved after trial and a full flowering of the record. To distinguish and dispatch Crawford, Judge McGinley again employed a footnote, Number 25:

Crawford is inapposite to the facts and legal challenge here. In Crawford, the US. Supreme Court applied a rational basis test under the Equal Protection clause to the federal constitution, having determined that the statute did not jeopardize the right to vote. Also, there was insufficient evidence to indicate de facto disenfranchisement of qualified voters whereas the record here shows hundreds of thousands lack compliant photo ID.

Based on the comprehensive record before the Court, the provisions of the Voter ID Law as written would not in many respects survive rational basis review; i.e., expiration date, finite list of compliant IDs which excludes photo IDs that the Commonwealth accepts as valid for other purposes and programs, and suffice to confirm identity.

This passage—and the judge's reliance all throughout his opinion upon the evidentiary record established at trial—won't just make it harder for the Pennsylvania Supreme Court to reverse the ruling on appeal. It also lays bare the weakness of the evidence that officials in other states have proffered to justify restricting the rights of their citizens to vote. It says to advocates on both sides of this fight that the state's proof here—presented during a long trial and not in a rushed injunction hearing—wasn't remotely good enough even considering the Supreme Court's broad deference offered in Crawford.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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