A similar strategy has succeeded in Missouri and Wisconsin, where judges have relied on voting rights protections enshrined in state constitutions to block laws that require voters to present photo identification.
Voting rights advocates are scrambling to fight a rush of legislation adopted over the past two years that, among other changes, curtail the availability of early voting and impose new requirements on voter-registration efforts.
Most attention has been focused on requirements that voters show photo identification, a measure that strikes many people as a common-sense notion that voters prove they are who they say they are. Many states require some method of identification, but 10, including Pennsylvania, have passed laws requiring specific kinds of government-issued IDs.
“The integrity of the electoral process is not enhanced by turning away people at the ballot box,” said David Gersch, an attorney for 10 individuals and three groups, including the NAACP and the League of Women Voters. “Voting is not a privilege. It’s a right.”
Although the court battles are waged in lawyers’ words, the partisan import of the laws is impossible to ignore. President Obama’s supporters argue that the legislation could cause serious harm to his reelection campaign. And all but one of the new measures have come in states with Republican-led legislatures. Democratic governors have vetoed some changes.
Lawyers challenging the Pennsylvania law asked Simpson to note that state House Majority Leader Mike Turzai (R) listed the law as an accomplishment at a meeting of GOP activists.
“Voter ID — which is going to allow governor Romney to win the state of Pennsylvania — done,” he said.
Sponsors say the laws are needed to combat voter fraud and assure the public that only qualified voters’ ballots will be counted. In opening arguments Wednesday, Senior Deputy Attorney General Patrick Cawley told Simpson that “widespread disenfranchisement will not happen” and that “nothing could be more rational” than requiring a voter to show a photo ID.
But evidence of the kind of voting fraud the laws would discourage is elusive. Pennsylvania stipulated before the trial that it could not show evidence of such fraud in the past and that it is unlikely to occur in the absence of the law.
Opponents say the laws disproportionately affect minorities, the poor and the elderly, who even in a modern world sometimes lack photo identification and the legal documents and means that would allow them to obtain it.
The groups challenging the Pennsylvania law, as well as other advocacy organizations such as the Senior Law Center, say they can present numerous voters who would have trouble securing out-of-state birth certificates, paying the cost of other documents or traveling to state offices to obtain the photo IDs.
Viviette Applewhite, 93, one of the plaintiffs in the suit, testified Wednesday that although she has voted in every presidential election except one, she was worried that she could not meet the requirements of the new law. Her last name has changed several times, she said, and she could not provide the documentation required to apply for a state-issued photo ID.
When Pennsylvania was debating the legislation, it estimated that as many as 90,000 voters lacked the required identification. But when the state compared its roll of 8.2 million voters with the Department of Transportation’s list of those who had photo IDs, it found more than 758,000 voters without a match.
State spokesman Ronald Ruman said that not all of those voters lack another kind of government-issued photo ID that would work. But he added that the finding has prompted the state to revise its requirements for obtaining a photo ID. The controversy ramped up Monday, when the Justice Department’s civil rights division told the state that it is investigating whether the law violates the federal Voting Rights Act.
U.S. Attorney General Eric H. Holder Jr. has compared restrictive voter-ID laws to “poll taxes” used years ago in the South to discourage black voters. And the Obama administration has not endorsed new laws in Texas and South Carolina. Because of past discrimination, those states, unlike Pennsylvania, must prove that the changes will not disproportionately disadvantage minorities.
The U.S. Supreme Court in 2008 seemed to give states the green light to require voters to present photo IDs. Now-retired justice John Paul Stevens said that such a law in Indiana was a reasonable reaction to the threat of voter fraud, “amply justified by the valid interest in protecting the integrity and reliability of the electoral process.”
The opinion left open the possibility that voters who had proof that they were adversely affected by such laws could petition the courts but made it clear that it would be difficult to prevail.
Witold J. Walczak of the Pennsylvania ACLU, which filed the lawsuit along with the Advancement Project and the Public Interest Law Center of Philadelphia, agreed that the Supreme Court’s decision in Crawford v. Marion County Election Board made challenges more difficult.
“Going into federal court is like going to the plate with two strikes already against you,” Walczak said.
But his brief argues that Pennsylvania’s constitution provides protections the U.S. Constitution lacks.
One section of the state document spells out the qualifications of an eligible voter. Another provides that all elections be “free and equal” and that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
The lawyers told the court that “the integrity of elections cannot be enhanced by burdening the franchise for so many qualified citizens.”
The argument that a state’s constitution can provide more protection than the federal document was accepted by a Missouri judge who struck down that state’s voter-ID law in 2006. There is now a separate legal battle over a proposed amendment to the state constitution that requires identification.
And a Wisconsin judge last week cited his state’s constitution in striking down a similar law.
“The qualification for voting is guaranteed in the constitution and cannot be changed by statute or impaired by regulation,” Judge David Flanagan wrote. The state has said it will appeal to its Supreme Court, but it is unlikely that the challenges would be settled in time for the November elections.
Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice at New York University School of Law, is a chief critic of the laws and said she thinks a challenge could be successful after the Crawford decision. “But sometimes the shorter path from A to B is the state constitution,” she said.
Pennsylvania’s lawyers contend that the state constitution does not bar the legislature from regulating elections and that the new law was modeled after the Indiana law approved by the U.S. Supreme Court.
“Although voting is appropriately protected by the Pennsylvania Constitution, that protection is not without conditions and does not excuse interested and eligible voters from sharing in the responsibility of complying with the law,” said the brief filed on behalf of Attorney General Linda L. Kelly.
“Mere inconvenience does not give rise to a constitutional claim.”
The brief contends that there is ample time for “interested and eligible voters” to receive a photo ID, and that Pennsylvania has taken significant steps to remove barriers.