August 15, 2012; Source: Election Law Blog

Nonprofits engaged in voter registration and get-out-the-vote efforts should be interested in the decision of Pennsylvania state court judge Robert Simpson to uphold the state’s new voter ID law (or, that is, to reject a preliminary injunction to bar its use on the grounds that it might violate the state constitution). Judge Simpson refused to enjoin the law, passed last fall by a Republican majority in the state legislature, citing a number of reasons, according to Rick Hasen at the Election Law Blog:

  • The voter ID law would likely not affect more than one percent of voters, not the nine percent alleged in many critiques;
  • By election day, the state ought to be able to get IDs to voters who wanted them;
  • Voters without IDs might be able to vote anyhow, through absentee voting;
  • Even though some Republicans backing the law might have been motivated to do so for partisan political reasons, there are “neutral” defenses to the voter ID law;
  • Although Pennsylvania hasn’t had a problem with voter impersonation fraud, the law is defensible on neutral, non-ideological grounds;
  • Voters who face difficulties in getting IDs might be able to get an injunction against the law as applied to them, but a broad-brush rejection of the law wasn’t justifiable.

None of these reasons are likely to be satisfactory to the likes of 94-year-old Devon, Pa. resident Bea Bookler, who, as we’ve noted previously, says the law will make it hard for her to vote.

Hasen thinks the judge’s decision was thoughtful, non-ideological, and done in good faith, contrary to some critics who see this decision as another step in the breakdown of American democracy and the participation of the courts in that process. Although the case will be appealed to the Pennsylvania Supreme Court, the three Democrats and three Republicans on the bench probably won’t reach a consensus to overturn the decision (the seventh member of the court is being investigated for corruption charges and is therefore out of the picture for the moment).

However, Hasen suspects, as do we, that the state’s bureaucracy may not be able to get IDs to everyone who needs them before the elections, and that local officials might not apply the law evenly and fairly. Hasen doesn’t join the judge in downplaying the importance of the partisan political motivations of the law’s sponsors. For the nonprofit sector, it is an interesting conundrum. Nonprofits are supposed to work with voting rights and voter registration laws in a nonpartisan way, but what happens when those laws include Pennsylvania’s voter ID statute, which some critics say was proposed by Republicans not to stamp out voter fraud (which isn’t widespread), but to depress potential voting turnout for Democrats?

Pennsylvania courts have upheld voter ID laws before, but this is a bad reaffirmation of a trend toward making the exercise of citizens’ right to vote harder. Yes, citizens. Non-citizens cannot vote at all, so this restriction is on citizens who lack the identification the state deems necessary for pulling the lever at the polls. Eleven states now have voter photo ID laws. According to a study from the Brennan Center for Justice at New York University, “people of color are more likely to be disenfranchised by these laws since they are less likely to have photo ID than the general population.” In states with voter photo ID requirements, what are voter registration nonprofits planning to do? – Rick Cohen