Pennsylvania Court Puts ID Back Into Voter ID


[Image courtesy of PAVotes]

Yesterday’s Commonwealth Court decision in Applewhite et al v. Pennsylvania has, for the time being, clarified the question of whether Keystone State voters will be required to show ID on Election Day. [They won’t.]

But for all the attention the decision has gotten – accompanied by the inevitable speculation about what it means for the 2012 Presidential election – it is especially notable for putting the question of ID back at the center of the voter ID debate.

Up until now, it hasn’t been that way. Most of the (extremely partisan) fights we have seen in legislatures and courtrooms have focused on two different disputes: whether or not voters should be required to show ID, and what the consequences should be for voters who don’t have it. Both of these debates involve ID, but don’t really give much attention to what to do about it.

Yesterday’s opinion changes all of that. Judge Simpson – admittedly, acting under a very limited scope of review from the state Supreme Court – looked at the Pennsylvania law and concluded NOT that the request for ID was invalid NOR that failure to produce an ID should disqualify a voter from a regular ballot BUT INSTEAD that regardless of the appropriateness of the request or the consequences, the Commonwealth hadn’t kept its promise to make IDs available to eligible voters in time for the November election. It was the failure to keep that promise – not the requirement itself – that got the ID requirement blocked for November.

Note also that Judge Simpson – who has ruled previously that ID doesn’t discriminate in theory – isn’t necessarily expecting that the Commonwealth will ever be able to keep its promise; indeed, he expressly says that he is planning for a trial post-election on a permanent injunction based on plaintiffs’ “facial challenge to [the ID law] because the statute contains no right to a non-burdensome means of obtaining the required identification.” The current case, he explains, is limited to the impact of ID on the November election – anything else will require Supreme Court guidance:

the Supreme Court’s reference to “no voter disenfranchisement … for purposes of the upcoming election,” has sparked debate between the parties. I understand the phrase to be focused on the preliminary injunction for purposes of the upcoming election. I do not understand the phrase to define the test for a facial validity challenge in the context of a permanent injunction. If that understanding is not correct, the Court’s guidance will be necessary. [citation omitted]

The latest development in Pennsylvania is a hopeful sign that the voter ID debate is finally reaching the point where we focus not on whether voters HAVE ID, but whether (and how) they can GET it.

As we have seen time and time again in voter ID court cases so far, the former question (“who has ID”) is very slippery, deeply partisan and fraught with uncertain or nonexistent data. The latter question (“can voters get ID”) takes into account the steps to obtain an ID, the pace of issuance and the time remaining until failure to have ID will disqualify voters (i.e., Election Day) – data which is much easier to collect and analyze.

Even better, improving the process by which eligible voters get access to ID addresses both the perceived problem of unidentified and potentially ineligible voters casting ballots (i.e., “fraud”) as well as the perceived problem that eligible voters will be turned away for lack of ID (i.e., “disenfranchisement”). Focusing on the process of making ID available and accessible to eligible voters – and, more importantly, holding governments accountable for following through on promises to do so – shrinks the pool of eligible voters without ID and reduces the threat of either “fraud” or “disenfranchisement” in the voting process.

That looks like a win-win to me – and that, more than any Pennsylvania- or 2012-related impacts, is likely to be the biggest legacy of yesterday’s decision.

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