Pennsylvania's voter ID debate has come a long way

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HARRISBURG -- This summer, like last, teams of lawyers have spent days in a courtroom near the state Capitol arguing whether the state's voter ID law creates too great a barrier to the polls.

At a glance, the hearing last summer over the law's enforcement at the approaching November elections and the one currently taking place in Commonwealth Court over its permanent fate are similar enough that spectators could be forgiven for a sense of deja vu.

Again, voters without identification testify about their difficulties getting it. Experts estimate what portion of the electorate lacks acceptable ID. Opponents argue the law will stand between citizens and their right to vote, while the state counters it has provided ample opportunity to obtain an ID included in the law.

But much has changed since one year ago, when the courts first examined the Pennsylvania law amid the pressure of an impending presidential contest and with a promise by the state that it would produce a new, easier-to-obtain ID.

Now, with that ID in circulation and with the guidance of the court decisions that postponed the law's full enactment, the challengers are presenting a different type of voter they say would be disenfranchised, while the arguments of both sides increasingly hinge on how accessible the free Department of State ID really is.

The law's passage

Pennsylvania is one of several states that in recent years have approved laws requiring voters to show identification at the polls. The Pennsylvania statute, which allows voters to cast a provisional ballot if they cannot show one of several forms of photo identification, cleared both legislative chambers on March 14, 2012, without a single Democratic vote. Gov. Tom Corbett signed it into law within hours.

The wave of new voting restrictions received national attention ahead of the presidential election, and Pennsylvania's requirement was no exception. President Barack Obama's re-election campaign criticized Pennsylvania lawmakers for wasting time and promised to educate voters about the requirements.

Supporters of the voter ID measure said it would assure the public of the integrity of elections, though in the subsequent court proceedings attorneys for the state have said they know of no instances of in-person voting fraud in Pennsylvania.

Previously, state law required voters to show identification, though not necessarily photo identification, only the first time they voted at a polling place.

Critics, first in the Legislature and then in the legal challenge, have said the photo identification requirement would suppress voting by the poor, minorities and the elderly. Petitioners, including the NAACP, the League of Women Voters and Philadelphia's Homeless Advocacy Project, argued that the law cannot be implemented without disenfranchising large numbers of voters.

Both last summer and now, a legal team that includes the American Civil Liberties Union of Pennsylvania and others has argued that hundreds of thousands of voters could be affected by the requirement, and that the state has advanced no legitimate purpose that would justify the risk of disenfranchisement.

A new ID card enters the mix

The introduction of a new form of ID, announced but not available by last summer's trial, has directed the course of arguments this time around.

In the summer of 2012, the forms of acceptable identification available to the public -- such as driver's licenses or other forms of ID issued by the Department of Transportation -- were those that require people to produce documents establishing their identity. (Other forms of identification, such as those issued by universities or care facilities, were available to a more limited population.)

And so the challengers called witnesses such as Wilola Lee, a Philadelphia resident born in rural Georgia, who said she had tried for years to obtain a birth certificate but was told the state of Georgia had no record of her birth.

The state of Pennsylvania had announced days before the trial last year that it would make available a new form of identification: a Department of State card issued by PennDOT that would be issued to voters without documents proving their identity. But with the card not yet available, the challengers said the state could not guarantee it would reach all voters who needed it.

This time around, the Department of State card is a central object in the trial. Since free identification is now available to registered voters without documents, the argument that the law will disenfranchise voters has focused more specifically on people who can claim difficulty getting to one of the 71 PennDOT licensing centers around the state.

Over the past two weeks, the court has heard from witnesses such as Mina Kanter-Pripstein, a 92-year-old Philadelphia woman who said it would be too difficult to travel by bus or taxi cab to a licensing center, and Marian Baker, a 71-year-old Reading woman who, after a broken leg, said she could not stand in line long enough to get an ID from PennDOT.

Attorneys for the state have challenged the idea that the witnesses really could not get identification, asking about relatives who might drive them and, in the case of at least one witness present in court, asking if she would ask her driver to stop by a licensing center on their way home from testifying.

In a sign of the importance of the case, the Corbett administration has had a spokesman stationed in the courtroom throughout the proceeding. The spokesman, Nils Frederiksen of the Office of General Counsel, has maintained that identification is available to any voter who wants it. He said the licensing centers are ready to make accommodations for people who cannot stand, and that, in certain circumstances, licenses can be renewed through the mail.

No safety net

While the availability of identification without documents has changed the narrative presented by challengers of the voter who stands to lose access to the polls, the parties' legal team still suggests that since the Department of State ID card is not explicitly required by the voter ID law, an administration could abandon it in the future.

"The reason the statute is unconstitutional is that, as written, it's going to disenfranchise hundreds of thousands of people, and there's no safety net for people who show up to the polls on Election Day without an ID," said Marian Schneider, a Pennsylvania attorney with the Advancement Project, a civil rights organization based in Washington that has worked on the case.

Voters who cast provisional ballots would have six days to verify their identity to their county board of elections.

The challengers also have tried to undercut confidence that the Department of State ID is readily available once a voter arrives at PennDOT. They presented a database that they said shows voters whose identification cards were never mailed or which arrived after the November election. But some of those voters had other identification, a witness from the Department of State testified, and the judge, Bernard McGinley, has asked the two sides to reach an agreement on the situation.

As of July 12, the state had issued 12,993 PennDOT IDs for voting and 3,833 Department of State IDs, according to a PennDOT spokesman.

The state, meanwhile, now says that the Department of State ID card is necessary for the law to stand. In a September 2012 decision, the Pennsylvania Supreme Court returned the case to the lower court with instructions to assess how available the Department of State ID cards had become. If availability had not met a standard of "liberal access," or if the court was not convinced there would be no voter disenfranchisement in the November election, the law was to be halted. On Oct. 2, Commonwealth Court Judge Robert Simpson barred the state from requiring ID under the new law for the upcoming election.

Attorneys for the state said in a filing before the current trial that while the Departments of State and Transportation could make some changes to the new ID, the program must continue to ensure liberal access to voter identification.

Mr. Frederiksen said that without an ID available as the Department of State ID is, the law could not be administered consistent with constitutional requirements.

"If the court wanted to specify the [Department of State] ID program needs to continue in order to guarantee that the law is constitutional, then we would not oppose that," he said.

Commonwealth Court Judge McGinley put the current trial on hold for a four-day weekend as lawyers prepare to make closing arguments. The proceeding is expected to conclude this week, but both sides expect the decision to be appealed to the Pennsylvania Supreme Court.

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Karen Langley: klangley@post-gazette.com or 717-787-2141.


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