Plaintiffs Challenge the Constitutionality of Pennsylvania’s New Voter ID Law

On May 1, 2012, the American Civil Liberties Union (ACLU) of Pennsylvania, the Public Interest Law Center of Philadelphia (PILCOP), the Advancement Project, and the law firm of Arnold & Porter, LLP, filed a lawsuit challenging the new voter ID law in the Commonwealth Court of Pennsylvania.  The suit is filed on behalf of ten individual plaintiffs and four organizational plaintiffs who claim that the law violates the Pennsylvania Constitution by unduly burdening the fundamental right to vote, discriminating between voters in violation of Article I, Sections 1 and 26, and improperly adding additional qualifications to vote in violation of Article VII, Section I.  They request a preliminary injunction to prevent the law from going into effect.  The law, passed by the General Assembly and signed by Governor Tom Corbett on March 14, 2012, requires voters to show certain acceptable forms of photo identification at the polls in every election starting with the general election scheduled for November 6, 2012.

The individual plaintiffs, ranging in age from 22 to 93, have been unable to obtain photo identification for a variety of compelling reasons. For example, Joyce Block, an 89-year-old woman, has a birth certificate and social security card with her maiden name while her voter registration is in her married name and her marriage license is in Hebrew; 84-year-old Nadine Marsh has no available birth certificate; and “Asher” Schor, who is 22 years old, presents and looks like a man but looks like and is listed as a female in his passport and driver’s license.  In the past, these individuals have been able to vote because Pennsylvania law previously required only first-time voters to show identification at the polls and accepted a wider variety of identification, including non-photo identification, such as utility bills.

The new law will disproportionately impact women, such as those, who like Mrs. Block, have assumed a married name that does not match their birth certificates, social security cards, or voter registrations.  The law will also likely disenfranchise many elderly and poor Pennsylvanians, and women are more likely than men to fall into these groups.  Women made up 58.5 percent of individuals age 65 years and older between 2006 and 2010 in Pennsylvania, and, as the Women’s Law Project (WLP) discusses in Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women (available online on May 14, 2012), women made up 56 percent of those living in poverty even though they only made up 51.4 percent of the state population.

Not only are the elderly and the poor less likely to have photo identification, but they are also less likely to be able to afford the documents required to obtain state-issued photo identification before November 2012.  The new law directs PennDOT to issue identification free-of-charge to individuals who have the necessary paperwork, but the Commonwealth refuses to waive the fee for obtaining a birth certificate.  Thus, for many, the new law will result in disenfranchisement while addressing a “phantom” problem, as the plaintiffs call it, of in-person voter fraud, of which the proponents of the new law have not been able to provide any concrete examples.

The “soft” roll-out of the voter identification requirement happened on April 24, 2012, when poll workers requested photo identification from voters who came to vote in the Primary but allowed everyone who was registered to vote as usual whether they had identification or not.  WLP Staff Attorney Amal Bass, who serves as a local Judge of Elections, said:

We had to ask our family, friends, and neighbors, people we’ve known our whole lives and see at every election, for photo ID.  Most had it, but some did not.  I expect a much higher turn-out in November, when people who do not vote in primaries and who are less likely to know the intricacies of the new requirements will show up.  There will be confusion when they try to sign-in, long waits, and ultimately some people may lose their right to vote because they do not have the required identification in time to vote in the booth or have their provisional ballot counted.

One potential solution to minimize problems and confusion would be to ease into this new law gradually, over the course of multiple election cycles.  Even then, however, as the plaintiffs allege, there may be citizens of the United States and of Pennsylvania who will never be able to vote under the new voter ID requirements, no matter how many election cycles they have to “adjust” to it, because their birth certificates no longer exist, their married names cannot be verified, or because there are other obstacles in the way of obtaining acceptable identification.

If the plaintiffs are unsuccessful at stopping this new law from going into effect, voters in Pennsylvania, with few exceptions, will have to show appropriate photo-identification at the polls in order to vote, even if they have voted before and even if all of the poll workers — including the Judge of Elections and the Minority Inspector (of the opposing political party), who are already there in part to prevent in-person voter fraud — can vouch for that person’s identity.

To learn more about the new law’s requirements and about how to obtain acceptable photo-identification, see the Committee of Seventy’s guide.