Pennsylvania Voter ID Law: An Update
In our June 13, 2012 newsletter, we informed you of the requirements of the new Pennsylvania Voter ID Law, which requires all Pennsylvania voters to present a photo ID in order to be able to vote. We also informed you that litigation has been filed in the Commonwealth Court of Pennsylvania challenging the law (Applewhite v. Commonwealth of Pennsylvania, 330 M.D., 2012).
A week-long trial began before Judge Simpson of the Commonwealth Court on July 25, 2012. Numerous briefs were filed by advocates for and against the statute, including a brief filed by Willig, Williams & Davidson on behalf of the Pennsylvania AFL-CIO arguing that the law was unconstitutional under several provisions of the Pennsylvania Constitution.
On August 15, 2012, Judge Simpson issued a 67-page opinion denying the challengers’ request to enjoin the implementation of the law. In his discussion, Judge Simpson concluded that the right to vote is not a fundamental right under Pennsylvania law and that the voter identification requirements of Act 18 were reasonable and constitutional.
An appeal was immediately filed with the Pennsylvania Supreme Court, which granted the challengers’ Petition for an Expedited Briefing and Argument. Willig, Williams & Davidson again filed an Amicus Brief on behalf of the Pennsylvania AFL-CIO and the Pennsylvania Building Trades and Construction Council AFL-CIO seeking to reverse the lower Court’s decision and obtain an injunction against implementation against the Voter Identification Law. Argument before the Pennsylvania Supreme Court at its Philadelphia Argument Session in City Hall was scheduled for September 13, 2012.
Unless and until the Supreme Court takes action on the appeal, the requirements of the Pennsylvania Voter ID Law will remain in effect. That means that in order to vote in person at a polling place in Pennsylvania, all voters must present a valid photo ID or they will NOT be able to cast a ballot for any office on a voting machine. This applies even if a voter possesses an acceptable photo ID but forgot to bring it to the polls in November. If a voter arrives at the polls without a valid photo ID, they will only be allowed to vote by provisional (paper) ballot. There will be a form at the polling place for the voter to fill out that affirms that he/she is voting by provisional ballot because, although he/she has an acceptable photo ID, he/she forgot to bring it. A provisional ballot will only be counted if the voter presents the identification that he/she would have brought to the polling place to the County Board of Elections no later than six (6) calendar days after the election.
Over the past few months, the Commonwealth has made some small adjustments to the types of identification voters who do not have a current driver’s license or a non-driver’s license photo ID must present in order to obtain an acceptable photo ID from the Department of Motor Vehicles. If a voter had a Pennsylvania Driver’s License (or a non-driver’s license photo ID) at one time, and these expired any time after 1990, proof of his/her identity is most likely already in PennDOT’s database. In that case, the voter does not have to bring all of the identifying documents (social security card, birth certificate, two (2) proofs of residency) when he/she goes to a PennDOT driver’s license center. This modification does not remove the requirement that voters are still required to go to a PennDOT location to obtain the necessary identification. It simply limits the other identifying information which the voter needs to carry along in order to establish identity.
Voters who were born in Pennsylvania may not have to get an official birth certificate with a raised seal in order to get a photo ID for voting. Pennsylvania born voters can go to a PennDOT driver’s license center and fill out a form requesting a certification of birth record for voter ID purposes only. If the Department of Health can certify the voter’s birth record to PennDOT, the voter will get a letter back confirming this and be instructed that they can pick up their voter ID from a PennDOT facility. The voter must then bring this letter to a PennDOT driver’s license center to obtain a photo ID. This procedure still requires making two (2) trips to the PennDOT driver’s license center. None of these modifications change the requirement that a voter who does not present an acceptable form of voter identification when he/she goes to the polls on Election Day will only be allowed to vote by a provisional (paper) ballot.
On September 18, a majority of the Pennsylvania Supreme Court reversed the order of the Commonwealth Court denying a preliminary injunction in the Pennsylvania Voter Identification litigation. In the decision, the Court recognized that voting is a fundamental right under the Pennsylvania Constitution and that thousands of the most vulnerable voters in our society, including the elderly, the disabled and the financially disadvantaged were in serious jeopardy of losing their right to vote if the Voter ID Law was enforced as contemplated by the Commonwealth and the Governor.
Thus, the Court remanded the case to the Commonwealth Court to take additional testimony and evidence to ensure that no voter would be disenfranchised if the law was in force in time for the presidential election. The clear instructions from the Supreme Court to the trial court are that it must enter a preliminary injunction unless it finds on the basis of record evidence that there will be no voter disenfranchisement arising out of the implementation of the law in the forthcoming election. Unlike at the initiation of this action, the burden is clearly with the Commonwealth and the Governor to show no voter disenfranchisement, and, if they fail to satisfy that burden, the Supreme Court has directed the lower Court to enter a preliminary injunction enforcing implementation of the Voter ID Law, as requested by the plaintiffs in the first place.
While the result of the litigation is not yet conclusive, we are one step closer to the entry of an injunction preventing enforcement of an onerous law that would otherwise disenfranchise tens of thousands of duly registered and constitutionally-qualified voters in this Commonwealth. This decision is a positive development for those who rightly believe that voting is a fundamental right.