Legal experts debate impact of Pennsylvania's new voter ID law
April 2, 2012 4:00 AM
By Drew Singer For the Pittsburgh Post-Gazette
Six months before Pennsylvania's new voter identification bill became law, Denise Lieberman helped file an open records request with the state asking for a list of Pennsylvanians who already have the proper identification card.
The law -- signed in March by Republican Gov. Tom Corbett -- requires voters to present government-issued photo identification before being allowed to vote in elections. A civil rights lawyer with the advocacy group Advancement Project, Ms. Lieberman planned to compare a list of Pennsylvania voters with the state's record of those with proper identification. The comparison would show exactly how many voters wouldn't be allowed to vote under the new law.
The request was denied.
The state doesn't have to provide the record, the denial letter says, because the record doesn't exist.
"How can a legislator have any idea what they're voting on if they have no idea how many people are being affected?" Ms. Lieberman said. "If we're talking about imposing rigorous restrictions on voting, then there's legitimate value in having a sense of who stands to be affected and how."
When the Republican-controlled state Legislature passed the controversial bill, it estimated that some 90,000 voters would have to get new IDs or be turned away at the polls, including at this November's presidential election.
But the estimate has taken criticism from Democrats and civil rights groups for being poorly calculated and unverifiable by the general public.
Republicans say they got the estimate from the U.S. Election Assistance Commission, an independent agency of the federal government that arrived at the number by examining Census data.
More specific figures would help courts rule in the barrage of legal challenges currently in the works to overturn the law before November's election.
Estimates of affected voters range from 90,000 to as many as 300,000, said Senate Minority Leader Jay Costa, D-Forest Hills.
"It may be very easy to go to the DMV here in Pittsburgh and get an ID, but somebody who doesn't have access to a motor vehicle, or who lives in suburban or rural Pennsylvania, might not have the opportunity to just drop into the DMV office," he said.
Other voters might not have the paperwork needed to get an identification card, such as a birth certificate.
"There was a time they weren't done properly, states didn't keep accurate and good records," Mr. Costa said. "In some of the cases there's going to be cost associated with it. Forcing people to buy a birth record or some other record that they don't have, it's been equated to a poll tax."
With the proper paperwork, the identification cards themselves are free.
Mr. Costa, a lawyer himself, said party officials are reviewing the law with attorneys and considering a legal challenge.
Ms. Lieberman is challenging the denial of her request in the Pennsylvania court system and expects a court ruling some time this spring.
"We still need this information, because under the law, the state is required to identify people without a photo ID and reach out to them and facilitate them getting one."
Regardless of the exact number of those affected, the Corbett administration remains confident that the law will pass legal muster.
"The governor supports the law because we don't have a mechanism to confirm the identity of a voter at this point," said Ronald Ruman, press secretary for Pennsylvania's Department of State. "All they do is sign the poll book, and that isn't a particularly strong way to confirm that the person is who they say they are."
But some legal scholars don't like the law's chances in court.
"The general approach to constitutional law is to balance the interest involved -- here, the people's right to vote -- versus evidence the government presents as to if they have a compelling reason to take the measures they've taken," said Jules Lobel, a University of Pittsburgh School of Law professor and president of the Center for Constitutional Rights.
Courts likely will use a high standard of scrutiny when evaluating the government's argument because voting is a fundamental right.
"To take a measure which would potentially disenfranchise tens of thousands of people when there's no evidence of fraud, my hunch is that the majority of the academic legal community would take the position that the rationale behind these laws is not weighty enough," he said.
"I think it's illegal."
Although anecdotal evidence exists, proponents of the law have not presented statistical proof of a voter fraud problem in Pennsylvania. That could be because it's been difficult to catch the perpetrators, advocates of the law say.
"We've likened it to before police had radar," Mr. Ruman said. "Were folks on the highway not speeding? Or did we just not have a mechanism to catch it? I think it's important for folks to realize that the reason for this law isn't to disenfranchise everyone, it's to make sure votes count and aren't diluted by fraudulent votes."
Pennsylvania is now one of 11 states with a photo ID requirement for voting, according to data from the National Conference of State Legislatures. And the state's law is among the five strictest in the nation, according to the conference.
Legal challenges to voter ID requirements have had mixed results in other states. Most recently, a similar law in Wisconsin was ruled unconstitutional by that state's high court.
Earlier this month, the Wisconsin court wrote that those disenfranchised by a voter ID law "would consist of those struggling souls who, unlike the vast majority of Wisconsin voters, for whatever reason will lack the financial, physical, mental or emotional resources to comply with [the law], but are otherwise constitutionally entitled to vote. Where does the Wisconsin Constitution say that the government we, the people, created can simply cast aside the inherent suffrage rights of any qualified elector on the wish and promise -- even the guarantee -- that doing so serves to prevent some unqualified individuals from voting? It doesn't. In fact, it unequivocally says the opposite."
Pennsylvania's law can be challenged in either federal or state court, neither of which are required to follow the Wisconsin decision. The U.S. Constitution does not explicitly mention the right to vote, but the Pennsylvania Constitution, like that of Wisconsin, does.
Vic Walczak, legal director of the Pennsylvania American Civil Liberties Union, promised to challenge the law in court before the November election.
"We are actively preparing for litigation," he said. "We don't file lawsuits with an expectation of losing."
Mr. Walczak believes the number of disenfranchised voters is even higher than current estimates.
"If you look at studies done in other states, it's typically about 10 to 11 percent of registered voters do not have photo ID. If you take that number in Pennsylvania, you're talking about 800,000 to 900,000 people."
The poor and elderly -- groups that often vote for Democrats -- are particularly likely to fall into the disenfranchised group of voters. But the law's supporters claim that neither of these groups, nor any other groups, will be terribly troubled by the law.
"I think the question has to be asked is how much of a burden is this really?" Mr. Ruman said. "Similar laws have been passed over the last several years in other states, they've been challenged and upheld."
In fact, some university case studies, including one by the University of Missouri and a joint study by the University of Delaware and the University of Nebraska-Lincoln, suggest that voter ID laws don't impact voter turnout at all.
"We feel this is a good common sense approach to a way of affirming one man, one vote," he said.