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Court Halts Implementation of Voter ID Law for Upcoming Presidential Election

On October 2, 2012, in a much anticipated decision, Judge Robert Simpson of the Commonwealth Court preliminarily enjoined enforcement of parts of the recently enacted Voter ID Law. His injunction was issued after the Pennsylvania Supreme Court (Supreme Court) had remanded the case back to him for reconsideration. The Supreme Court directed him to determine if the new Commonwealth procedures for obtaining a Department of State photo ID (DOS ID) — the statute's safe harbor provision for those who otherwise could not obtain a PennDOT license or PennDOT non-drivers license — comport with the statute's requirement of "liberal access" to such IDs. If not, or if the lower court found that the statute still resulted in voter disenfranchisement, the Supreme Court directed the lower court to enjoin the Voter ID Law.

After additional discovery, another hearing, and post-hearing briefs, Judge Simpson concluded that the new procedures do not ensure "liberal access" to photo IDs as required under the Voter ID Law and do result in voter disenfranchisement. In reaching this conclusion, Judge Simpson recognized the Commonwealth's efforts to make it easier to obtain a photo ID which included dropping its earlier requirements that (1) voters would only have access to the DOS ID if they first were unsuccessful at obtaining a PennDOT non-drivers license ID, (2) voters needed to present two forms of proof of residency to obtain the PennDOT non-drivers license ID or DOS ID, and (3) voters needed to appear twice at PennDOT offices to obtain the DOS ID. Judge Simpson found the Commonwealth's new procedures were insufficient as they could not ensure that voter disenfranchisement would not result in the upcoming election, particularly in light of the fact that there were only five (5) weeks remaining until the general election, government officials' own admissions that the new procedures may face unforeseen problems with implementation, and the fact that the number of new IDs issued by PennDOT did not match the number who needed them.

Because he found the Voter ID Law still would result in voter disenfranchisement in the upcoming election, he preliminarily enjoined certain provisions of the law, but not the law in its entirety. Specifically, he enjoined enforcement of two provisions requiring individuals to vote provisionally in the event they appear at the voting polls without the necessary IDs. Under the Voter ID Law, provisional ballots only are counted if, within six (6) days after the election, such voters appear personally at their county boards of election and affirm that they are the individuals who voted provisionally and either (1) present a valid photo ID or (2) affirm they are indigent and unable to obtain such an ID. Alternatively, the voters can submit to the county board of elections via facsimile, email, or mail an affidavit that they are the persons who voted provisionally along with either a copy of their photo ID, or, if indigent, an affirmation that they are indigent and cannot obtain such an ID.  

Judge Simpson makes clear that those two statutory provisions will not be enforced in the upcoming election.  Instead, the procedures for voting in November will be the same as existed during the Presidential primary in May 2012, i.e., judges of elections may still ask voters to see their photo IDs, but voters do not need a photo ID in order to cast a ballot. If a voter fails to have the necessary photo ID, he or she can still cast their ballot and are not required to vote provisionally. However, the injunction will only remain in force for this election alone.

Additionally, the Commonwealth has made clear that first time voters, as was the case before the Voter ID Law was enacted, must still present appropriate identification. Such first time voters must present one of the following photo identifications: PennDOT driver's license, PennDOT non-drivers license, ID issued by any Commonwealth agency, ID issued by the U.S. Government, U.S. Passport, U.S. Armed Forces ID, student ID, or employee ID. These IDs do not need to have an expiration date, as the Voter ID Law required. If the voter lacks one of those forms of photo ID, he or she may use the following forms of non-photo ID: confirmation issued by the county voter registration office, non-photo ID issued by the Commonwealth, non-photo ID issued by the U.S. Government, firearm permit, current utility bill, current bank statement, current paycheck, or government check.

In December 2012, after the election, Judge Simpson will have a trial to determine whether he will permanently enjoin the statute and under what terms, if any. Because the parties to this litigation agreed that requiring voters to present photo IDs do not, in and of themselves, violate the state constitutional rights of voters, it is likely that some photo ID requirement will be permitted in future elections. Thus, voters who can should still seek to obtain the necessary voter ID in order to be able to vote in the next election following this Presidential election in November.   

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