Voting law experts keep close eye on Pennsylvania
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HARRISBURG -- As the U.S. Department of Justice investigates the new Pennsylvania voter ID requirement for discrimination against minorities, election law experts say a legal challenge could require the courts to navigate undeveloped areas of federal voting rights law.
The commonwealth was preparing to defend the Voter ID Law in state court last month when the Justice Department's top civil rights lawyer wrote to announce a review for compliance with the Voting Rights Act, the 1965 legislation that prohibited literacy tests at the polls and strengthened the federal government's ability to enforce the voting guarantee of the 15th Amendment. While the department has blocked the enforcement of voter identification laws in Texas and South Carolina, those states fall under a part of the Voting Rights Act requiring Justice Department or court approval for election law changes in places with a history of discrimination.
The review of the Pennsylvania law is for compliance with a section of the Voting Rights Act prohibiting any state from enacting voting practices that discriminate against racial, ethnic or language minorities. The provision, known as Section 2, requires the challenger to prove a discriminatory result. A Justice Department spokesman said the department has not challenged or taken other enforcement action against a voter ID law under it.
"This is a move by the Justice Department into potentially challenging photo identification laws much more aggressively and affirmatively," said Michael Pitts, a professor at Indiana University Robert H. McKinney School of Law who served as a career attorney in the Voting Section of the department from 2001 to 2005. "This is a new move by the Justice Department into a realm that has previously been untrodden for them."
Some election law experts around the country are watching existing and potential challenges to the Pennsylvania law, staying aprised of the state's acknowledgement that it knows of no cases of in-person voter fraud and discussing through email details of the Department of Justice letter. Some said that even if the Justice Department does object to the law under the Voting Rights Act, it is highly unlikely to do so before the November elections, instead watching for the conclusion of a challenge in state court. The judge in that case has said he expects to rule in the coming week.
Samuel Bagenstos, who from 2009 to 2011 served as the No. 2 official in the Civil Rights Division and is now a professor at University of Michigan Law School, said that if the department concludes the law violates the Voting Rights Act, it would be compelled to try to stop it from taking effect, first by trying to reach a settlement and, failing that, by filing a lawsuit.
"It's unusual to move that quickly, but on the other hand, if the Justice Department knew that a very large number of voters was going to be disenfranchised based on a law that violates the Voting Rights Act, I think they'd have to act," he said.
Ken Gormley, dean of the Duquesne University School of Law, said he would be surprised if the Justice Department does not file suit, given the proximity of the presidential election.
"Unless the courts are very comfortable with how these laws are structured, that's going to be problematic," he said. "You can't put the genie back in the bottle after the election is held, if people have been disenfranchised."
Exactly what the Justice Department would have to show to prove discrimination is not clear. It would not have to show the law in question was meant to discriminate, since Congress made that explicit in 1982 following a Supreme Court decision limiting claims of minority vote dilution to cases of intentional discrimination. But merely showing that a law disproportionately impacts a minority -- as is the case in bans on voting by felons -- has not been enough.
"It's clear that to win a Section 2 case, discriminatory impact is not enough," Mr. Pitts said. "You need something more. What that more is is very nebulous and undefined."
There have been numerous cases claiming a redistricting plan violates the section by diluting the vote of a minority group, but few cases in an area, sometimes called vote denial, that includes photo identification laws. Nathaniel Persily, a professor at Columbia Law School who has testified on the Voting Rights Act before the U.S. Senate Judiciary Committee, said there is no clear test, outside the realm of redistricting, of when disparate racial impact means a violation of Section 2.
"These are very difficult questions, and we need to have a more robust jurisprudence on this," he said.
Nathaniel Persily, a professor at Columbia Law School who has testified on the Voting Rights Act before the U.S. Senate Judiciary Committee, and other observers said the Justice Department will consider information disclosed in the hearing that concluded last week in a challenge to the law in Commonwealth Court.
At the hearing, challengers of the law, including the American Civil Liberties Union of Pennsylvania, presented the testimony of a University of Washington researcher who said a survey he designed found the law would have a disproportionate impact on Hispanics, among other groups.
An attorney representing the state argued the law does not discriminate because it places the same burden on all voters to obtain an acceptable form of identification, while providing free identification to voters who cannot afford the cost.
The University of Washington professor, Matt Barreto, estimated that 1 million registered voters -- and additional people who are eligible to vote -- lack a form of identification they could use at the polls. State officials described their efforts to match the names of registered voters to lists of people with Department of Transportation identification, a comparison that showed nearly 759,000 voters could not be matched, though they said that number included people who have not voted in years and others whose identification contains slight name differences that might not stop them from voting. Secretary of the Commonwealth Carol Aichele maintained that comparing the number of PennDOT identification cards with the number of eligible voters shows that far fewer voters lack identification.
Mr. Bagenstos, the former Civil Rights Division appointee, said the estimates of people who could be prevented from voting separate the Pennsylvania law from cases elsewhere, such as the Indiana photo identification law that was challenged on constitutional grounds but upheld in 2008 by the U.S. Supreme Court.
"Having looked at voter ID laws around the country for a while, a number of the facts that came out in the state court trial are extremely troubling, about the incredible extent to which voters are going to be affected by Pennsylvania's voter ID law," Mr. Bagenstos said. "One of the issues in the Indiana case had been there was not a very strong showing that a lot of voters would be affected. ??? Here the sheer numbers are very staggering."
The day after the Justice Department sent the letter, Ms. Aichele told reporters the Department of State would comply with its request to provide extensive documentation, including the state lists of voter registration and driver licenses. She said attorneys for the commonwealth believe the law is on firm ground.
"The state of Pennsylvania believes that the law passed by the General Assembly is valid and will sustain any kind of test," she said.
First Published August 11, 2012 12:00 am