In a win for democracy, last Friday Judge Bernard J. McGinley of the Commonwealth Court of Pennsylvania struck down Pennsylvania’s voter ID law. Among other problems cited in the court’s decision, this restrictive law violated the right to vote, which is expressly guaranteed in Pennsylvania’s Constitution. The decision is important not only because hundreds of thousands of Pennsylvania voters, who lack one of the limited forms of acceptable photo ID previously required under the law, can now cast their ballots without burdensome obstacles – but also because of the court’s willingness to enforce the guarantee of a fundamental right to vote as enshrined in the Pennsylvania Constitution.
Unlike the U.S. Constitution, the Pennsylvania Constitution explicitly recognizes the right to vote, stating that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” The Commonwealth Court reaffirmed that this right is fundamental, as well as “pervasive of other basic civil and political rights.” As the court explained, elections are “free and equal” only when they are public and open to all qualified voters, when every voter has the same opportunity to cast a ballot, when that ballot is honestly counted, and when the regulation of elections does not deny the exercise of the right to vote.
According to the court, the voter ID law violated the state constitution because it required photo ID without mandating any legal, non-burdensome way for voters to get it. Instead, the measure merely required that the existing non-driver photo ID issued by the Pennsylvania Department of Transportation (PennDOT) be provided for “free.” The Pennsylvania Supreme Court, however, already held in 2012 that PennDOT failed to uphold that requirement because of the underlying documents required, such as a birth certificate (which can be costly or, in some cases, not exist at all); the limited PennDOT locations where ID cards were even available; and the burdens faced by voters who had to travel to one of these centers and wait in line to get an ID. In light of these obstacles, the Department of State attempted to create a “just for voting” ID (DOS ID), but the Commonwealth Court held that this ID was an unauthorized agency creation that failed to pass constitutional muster. The DOS ID suffered from similar problems as the PennDOT ID because it created barriers that prevented voters who lacked compliant ID from getting it.
by Allison R. Brown, a civil rights attorney and President of Allison Brown Consulting (ABC)
Two years ago, in September 2010, Attorney General Eric Holder and Secretary of Education Arne Duncan announced an historic partnership within the executive branch of government – the Department of Justice and the Department of Education were joining forces to focus civil rights policy and enforcement efforts on examining and eliminating the “school-to-prison pipeline.” That partnership created a two-part national conference about the impact of student discipline on the pipeline and also created an inter-agency Supportive School Discipline Initiative. This week, federal interest in ending the “school-to-prison pipeline” officially grew as the legislative branch opened its doors to discourse about the issue.
On Dec. 12, Sen. Dick Durbin (D-Ill.), chairman of the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights, convened the first-ever Senate hearing on ending the “school-to-prison pipeline.” Durbin himself provided impassioned and numbers-driven introductory remarks at the hearing, defining the pipeline as a literal and figurative “gateway” out of school and into the criminal justice system that deprives children of their “fundamental right to education.” He lamented the desperate overreach of lawmakers and educators years ago to create zero tolerance policies that, rather than make schools safer, has redefined “rather normal behavior” as criminal activity so that instead of sending children to the principal’s office for misbehavior, students are removed from the educational environment entirely. “The costs are enormous.” And those that pay the most are students of color, students with disabilities, and LGBT youth.
Pennsylvania’s top court has ordered a lower court judge to reconsider whether a preliminary injunction should be entered against the state’s ridiculously rigid voter ID law. Pennsylvania’s voter ID law signed into law by the state’s Republican governor creates significant hurdles for people to vote, especially for some of the state’s most vulnerable. Other states, mostly controlled by conservative policymakers, have also pushed through stringent voter ID requirements.
In August, a state judge dismissed arguments that the new law, enacted “along purely partisan lines,” as the Philadelphia Inquirer puts it, would hinder the ability of minorities, students, low-income people and the elderly to vote in the forthcoming general election. (A report by The Brennan Center for Justice, which examined the Pa. voter ID law along with similarly onerous ones in other states such as Texas and Wisconsin, found that the process for obtaining voter identifications was so onerous that more than a million people in the studied states could be barred from voting. “These voters can be particularly affected by the significant costs for the documentation required to obtain photo ID. Birth certificates can cost between $8 and $25. By comparison the notorious poll tax – outlawed during the civil rights era cost $10.64 in current dollars,” The Brennan Center stated.)
The Sept. 18 order from the Pa. Supreme Court first noted that the state’s Constitution declares that “elections must be free and equal and ‘no power, civil, or military, shall at any time interfere to prevent the free exercise of the right of suffrage.’” The high court tossed the case back to the lower court judge with the order to ensure that implementation of the Voter ID law did not unconstitutionally interfere with the right to vote.
The tired, tawdry politics fueling the raft of harsh voter ID laws received a boost today via a flimsy and annoying Pennsylvania state court judge’s opinion.
Commonwealth Court Judge Robert Simpson shunted aside arguments that Pennsylvania’s new voter ID measure shoved into law by rightwing lawmakers just in time for the approaching presidential election that makes voting much more difficult for low-income people, minorities, the elderely and students to vote.
A recent report from the Brennan Center for Law and Justice, which studied Pennsylvania’s law and a number of the other outlandish voter suppression measures, showed that it was not easy for working people, the elderly and others to obtain the proper ID for voting. The offices have restricted hours and can be difficult to get to, especially for people trying to hold down jobs to feed and house families. The Brennan Center said that more “than 1 million eligible voters in these 10 photo ID states fall below the federal poverty line and reside more than 10 miles from the nearest ID-issuing office. These voters can be particularly affected by the significant costs for the documentation required to obtain photo ID. Birth certificates can cost between $8 and $25. By comparison the notorious poll tax – outlawed during the civil rights era – cost $10.64 in current dollars.”
Judge Simpson, however, was unmoved by the onerous hurdles, saying that voters unable to obtain the proper photo ID could rely on absentee or provisional ballots. The judge’s opinion is available here.
Suppressing the vote, regardless of what some journalists will claim, is the overarching motivation behind most of the new measures. Indeed in Pennsylvania, one lawmaker boasted to a gathering of Republicans that the new voter ID law would help Mitt Romney carry the state in November.
All too often proponents of ridiculously rigid voter ID laws cite voter fraud as justification. It is, those supporters argue, the integrity of the nation’s elections that need to be protected. But the argument is not only tired, it’s wobbly. It also masks the pernicious impact these laws have on low-income voters, minority voters, and the elderly.
The state officials, Reilly continues, “signed a stipulation agreement with lawyers for the plaintiffs which acknowledges that there ‘have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do not have direct personal knowledge of any such investigations or prosecutions in other states.” Moreover, Reilly notes that the state acknowledges in the stipulation agreement that it “will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania and elsewhere.”
For proponents of the harsh voter ID laws, the state's stipulation is likely disappointing. It should not be surprising, however, to anyone paying attention to the machinations behind the creation of the onerous laws.
In a recent ACS Issue Brief, Loyola Law School Profess Justin Levitt examines the new restrictions on civic participation, highlighting the numerous studies and examinations that undermine claims of voter fraud.
“There have been credible allegations of impersonation at the polls,” Levitt says. “But they are notable for their rarity. In the most prominent forum to date for collecting such allegations [a 2008 case before the Supreme Court], proponents of these rules cited nine votes since 2000 that were caused by fraud that in-person identification rules could possibly stop … or by mistake. During that same period, 400 million votes were cast, in general elections alone. Even assuming that each of the nine voters were fraudulent, that amounts to a relevant fraud rate of 0.000002 percent.”