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.
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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.

I think this is what the Brennan Center for Justice's Wendy Weiser was getting at when she told The New York Times Friday: "The court really looked at the actual impact of the law. Some of the past decisions have come without doing a real, close look at the impact. The issue is how they affect people in practice, not in theory. And in practice, it turns out that a significant number of people can’t get the photo ID they need.” It's one thing to proclaim that these laws are a mere nuisance, in other words, it's quite another to hear what burdens they impose upon voters who already are well registered to vote.

All state voter ID laws were not created equal. Nor are the texts of state constitutions nor, for that matter, the conditions on the ground in each state that citizens have to maneuver through to get their new identification so that they can continue to vote. But Judge McGinley's factual findings, confined as they are to conditions in Pennsylvania, surely are familiar to anyone who has closely watched these cases over the past few years. Let me offer here an example that sprung out at me—one that already has had material application in a large state like Texas or an antiquated one like South Carolina. From Page 27 of the ruling:

In order to obtain a [valid ID] a qualified elector must appear in person at a PennDOT DLC. Five of the 71 DLCs are located in Philadelphia. Notably, there are no DLCs that offer photo ID in [nine] counties... DLCs are openly only one day a week in [nine] counties.... DLCs are open olky two days per week are located in [thirteen] counties....

This leaves about half of Pennsylvania without DLCs for five days a week, imposing a significant barrier to accessing the "free ID"-- the only ID to which voters are statutorily entitled. Requiring electors who lack compliant photo ID, (and thus have no driver's license), to get to a DLC that may not be in their country, and may be several miles away and unreachable by public transport, is untenable.

Compound that barrier by physical limitations, preventing certain electors from traveling or waiting in line, the DLC Location Requirement becomes insurmountable.

DOS was aware that certain voters would have difficulties getting to PennDOT DLC's, and conceded as much during the hearings and at trial. Despite anticipating this problem in advance, DOS did not engage mobile units or expand the locations for obtaining a DOS ID beyond PennDOT DLCs. Many voters are not able to travel to a DLC due to physical constraints caused by age or disablity.

Presuming applicants are able to get to a DLC, their ordeal is just beginning. In addition to the difficulties inherent in transport during such limited hours, and with limited physical capabilities, PennDOT does not have designated employees to serve customers who come for free photo IDs for voting purposes.

Therefore, when a person travels to one of the qualifying DLCs during the appropriate hours of operation, they wait amongst other PennDOT customers who appear for a number of varied services. Wait times are an additional barrier that must be endured by electors, exceeding 30 minutes in many cases, and for which PennDOT does not necessarily offer any accommodation (citations omitted by me).

The takeaway here is inescapable. If they want to see these laws survive, Republicans pushing for them across the nation will have to put their money where their mouths are and properly fund the infrastructure required in each states to actually make it easier for registered voters to get new cards. Never mind the proof of racial animus or partisan effect—the fact that these measures are consistently imposed without such financial support from legislatures tells you how serious their supporters are about actually improving the accuracy of voting. Judge McGinley didn't even have to write that out in a footnote.

So the results from Pennsylvania are in and they are (for now) a big defeat for vote suppressors. In a few more weeks, or months, we will likely get a judicial ruling on Wisconsin's voter ID law, the one that went to trial last fall. And then this summer we'll start to see hearings on some of the new voter ID laws imposed last year in the wake of the Supreme Court's Shelby County ruling. And all while this furious action is underway your members of Congress will be debating the merits of a voting rights amendment act that in one fundamental respect ignores the potentially destructive power of these voter ID laws.

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

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