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.
Yesterday, a bipartisan, bicameral group of legislators introduced the Voting Rights Amendment Act of 2014, legislation sponsored by Rep. Jim Sensenbrenner (R-Wis.) and House Judiciary Committee Ranking Member John Conyers Jr. (D-Mich.) in the House and by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in the Senate. The bill represents a much-needed and significant first step in the effort to respond to the void left by the Supreme Court’s decision seven months ago in Shelby County v. Holder that invalidated a key portion of the Voting Rights Act of 1965 (“VRA”).
Before Shelby, Section 5 of the VRA required certain jurisdictions with a documented history of racial discrimination in voting to submit any changes in voting laws and procedures to either the Department of Justice (“DOJ”) or a three-judge panel of the United States District Court for the District of Columbia for review, a process known as “preclearance.” Most voting changes in these “covered jurisdictions” were approved quickly and routinely, but practices that were found by DOJ or the court to be racially discriminatory were blocked from taking effect. However, in Shelby, a five-justice majority invalidated the coverage formula used to determine which jurisdictions were covered by Section 5, finding that it was outdated and insufficiently tailored to the existence of racial discrimination in voting today. The Court took this unprecedented step even though Congress had overwhelmingly voiced its determination – by votes of 98-0 in the Senate and 390-33 in the House – that the coverage formula was appropriately responsive to continued racial discrimination in voting in the covered jurisdictions.
As a result of the Court’s decision, Section 5 was effectively nullified. The weeks and months following Shelby confirmed that while our Nation has made great strides towards addressing racial discrimination in voting, such discrimination has not been eradicated, as several previously covered states and jurisdictions swiftlyenactedlaws that would have been subject to preclearance – and potentially blocked – prior to Shelby.
by Gerald Torres, Marc and Beth Goldberg Distinguished Visiting Professor of Law, Cornell Law School; Bryant Smith Chair, University of Texas Law School
A recent Huffington Post article by Alex Palombo accuses Texas of discriminating against women in the exercise of the franchise because it has imposed new rules for voting which require all Texans to…
“…show a photo ID with their up-to-date legal name. It sounds like such a small thing, but according to the Brennan Center for Justice, only 66 percent of voting age women have ready access to a photo document that will attest to proof of citizenship. This is largely because young women have not updated their documents with their married names, a circumstance that doesn’t affect male votes in any significant way. Suddenly 34 percent of women voters are scrambling for an acceptable ID while 99 percent of men are home free.”
The law also imposes requirements of original documents for name change and a minimum fee of $20 to obtain acceptable copies of the documents. These requirements, in conjunction with registration deadlines, will leave many women unable to vote. Palombo views this as an assault on the 19th Amendment and women’s right to vote, suggesting that “if the Tea Party gets their way, the only people left to vote will be wealthy white men.”
Is this column another example of fear mongering from the Left? Rather than a regressive return to the days when women had no independent political existence, let alone a right to vote, Texas’ new laws surely represent the strongest possible statement supporting women’s independent personhood. Governor Perry and his legislative confederates cannot have intended to keep women from voting or to impose new, oppressive barriers to women’s participation in the political process, right? That would be illegal.
by Paul M. Smith, Partner, Jenner & Block. Mr. Smith is a longtime Supreme Court practitioner and a member of the ACS Board.
As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner – the author of the Seventh Circuit majority opinionaffirmed by the Supreme Court in Crawford v. Marion County Elections Board – has now publicly stated that he was wrong. It is refreshing, if not unprecedented, for a jurist to admit error on such a major case.
I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court. As he put it in an interview quoted in the New York Times, “We weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.” Really? The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”
That insight about the purpose of the law was supported by this information, all of which was provided to Judge Posner and the Seventh Circuit:
There had never been a single known incident of in-person voter impersonation fraud in the history of Indiana and there have been precious few nationally – yet the Indiana law targeted only in-person voting.
The law was passed immediately after Republicans took complete control of the legislature and governorship of the State of Indiana.
Every Republican legislator supported the law, while every Democratic legislator opposed it.
But what about the effects of the law? Well, Indiana Secretary of State Todd Rokita, the primary supporter of the bill, himself stated that there are certain “groups of voters for whom compliance with [the Voter ID law] may be difficult” because they are “registered voters who do not possess photo identification; who may have difficulty understanding what the new law requires of them; or who do not have the means necessary obtain photo identification.” As examples he mentioned “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.” Moreover, the district court had conservatively estimated that there were 43,000 voting-age Indianans without a state-issued driver’s license or identification card, and that nearly three-quarters of them were in Marion County, which includes Indianapolis. In other words, the persons most likely to be affected were poor and minority residents in the state’s largest city, who tended to vote Democratic and lived in a city that was trending Democratic.
“Constitution and Citizenship Day,” as it is formerly called, was once known only as Citizenship Day in commemoration of the countless immigrants who have chosen to uphold the U.S. constitution and claim the nationality of this country. One of the most important badges of citizenship, however, is not enshrined in the constitution -- the right to vote.
African Americans, women, and persons as young as 18 years of age were all granted voting rights through constitutional amendments. Those amendments established the conditions upon which the right to vote could not be denied but did not grant a universal, affirmation, and equal right to vote for all citizens. Indeed, the need for serial amendments to create the diverse electorate we see today is evidence of this constitutional void.
The current assault on voter participation is also proof of this void. If there were an affirmative right to vote in the Constitution, it would be harder for Republican-led state legislatures to enact voter ID laws that disproportionately disenfranchise the poor, minorities, students, and the elderly, more difficult for states like Florida to carelessly purge eligible voters from registration rolls, and a greater obstacle for election officials to limit participation by curtailing early voting and over-regulating registration procedures.
Why then should the right to vote remain absent from one of the most revered constitutions in the world? It doesn’t have to. Earlier this year, Congressmen Mark Pocan (D-Wis.) and Keith Ellison (D-Minn.) introduced a bill to amend the Constitution to include an affirmative right to vote. This idea has long been supported by organizations like Fair Vote which backs the current bill through its Promote the Vote campaign -- and its time has come.
As I’ve written for Reuters here, “at no time in recent history has the need for a right-to-vote amendment been more pronounced. The [Supreme] court’s ruling earlier this year in Shelby County v. Holder, disabling a key provision of the Voting Rights Act of 1965, calls for dramatic congressional action to both rehabilitate that landmark act and recommit to our constitutional ideals.” We would be remiss if we did not use this moment to reflect on the greatness of our Constitution and also flag its weaknesses. Indeed, there is no better time to kick-start a national discussion on the proposed right-to-vote amendment than during this celebration of both our Constitution and our citizenship, as neither is truly complete without an explicit right to vote.