JURIST Guest Columnist Lawrence Frolik of the University of Pittsburgh School of Law says that Pennsylvania’s new voter identification law is an unconstitutional violation of citizens’ fundamental right to vote, and that the disenfranchisement of voters is not justified by the relatively few instances of voter fraud that the law may prevent…

I n March of this year, Pennsylvania enacted a law requiring voters to present one of several forms of photo identification in order to be allowed to vote. In May, four organizations, including the League of Women Voters and the National Association for the Advancement of Colored People, along with several individuals represented by the American Civil Liberties Union (ACLU), brought suit in the Commonwealth Court seeking relief in the form of a preliminary injunction to enjoin the enforcement of the new law. The petition alleged, inter alia, that the new law would disenfranchise and deter qualified voters from exercising their fundamental right to vote.

The petitioners claimed that the act violates the Pennsylvania Constitution in three respects. First, it unduly burdens the fundamental right to vote guaranteed in Article I, Section 5 of the Pennsylvania Constitution, which states that “Elections shall be free and equal. . .” Second, the act imposes burdens on the right to vote that are borne unequally by the voters in violation of the equal protection guarantees of the Pennsylvania Constitution. Third, it imposes an additional qualification on the right to vote in violation of Article VII, Section I of the Pennsylvania Constitution, which provides that individuals are qualified to vote if they:

Are age 18 or older, Are citizens of the US, Resided in the state for 90 days prior to election, and Resided in the election district where voting for 60 days prior to the election

On August 15, 2012, Commonwealth Court Judge Robert Simpson refused to issue injunctive relief, holding the law’s burdens on registered voters did not amount to an unconstitutional interference with the right to vote.

Under the new law, in order to vote, a registered voter must show:

A Pennsylvania driver’s license that is currently valid or will expire in less than 12 months at the time of the vote, An ID issued by the Pennsylvania Department of Transportation (PennDOT) that is currently valid or will expire in less than 12 months at the time of the vote, A US passport with an expiration date after the date of the election, An active duty or retired US military ID, including ID for members of the Pennsylvania National Guard, A military dependent’s ID that has an expiration date, An ID issued by an accredited Pennsylvania university, etc. that has an expiration date, An ID issued by a Pennsylvania care facility, such as a nursing home, that has an expiration date, or For those with religious objections to being photographed, a non-photo ID issued by PennDOT.

Interestingly, the address on the photo ID need not match the address where you are registered to vote.

If you don’t have a proper ID, you can get one at a PennDOT Drivers’ License Center, which are located throughout the state. But there are only a limited number of such centers. For example, the PennDOT website lists four photo ID centers in Allegheny County, four in Philadelphia County, two in Bucks County and none in Forest County. It is not clear whether an American Automobile Association office that takes photographs and helps folks to obtain a driver’s license can similarly help them obtain an ID for voting.

The PennDOT photo ID is supposed to be free, but it is not easy to get. Applicants must provide: (1) a social security card; (2) an official birth certificate with a raised seal or a valid US passport; and (3) two proofs of residency such as a lease agreement, bank statement (with address) or a W-2 form.

As I looked over the requirements, I wondered if my mother, when still alive, might have been able to vote. For the last 20 years of her life she did not have a driver’s license, did not have valid passport, and had none of the other forms of acceptable identification. If she were alive and living in Pennsylvania today, I guess I could drive her down to a PennDOT ID Center, but that supposes I could find a proper copy of her birth certificate and locate her social security card assuming that she hadn’t lost it (as I have lost mine). In short, it would be a real hassle to qualify my mother to vote. My guess is that, in the face of these requirements, many, many “mothers” won’t bother.

And contrary to what some assert, there are many eligible, registered voters who don’t have a driver’s license, valid passport or university-issued photo ID. Most Americans do not need a photo ID in their daily lives. They don’t fly, they are old enough not to be carded at a bar or a state store, they use debit rather than credit cards and so are not occasionally asked for a photo ID, and they don’t rent a car or stay in a hotel that demands a photo ID. I realize that this does not describe the world of the Pitt Law Alum, but trust me, those folks exist, and they shouldn’t lose the right to vote merely because they are without a photo ID.

The right to vote is the most fundamental democratic right. It should be promoted and protected. The legislature has the obligation to establish laws that protect both the right to vote and the integrity of the vote, but the photo ID law fails to balance those two concerns as it wildly over emphasizes the integrity of the vote at the expense of the right to vote.

Now I am a strong believer in judicial forbearance. Our courts are not the third branch of the legislature and should exercise considerable restraint before declaring a statute to be unconstitutional. And just because a law is a “bad” law doesn’t mean it is unconstitutional. But when a law impinges on a fundamental right, the courts should view it with a gimlet eye.

When, in his opinion, Judge Simmons, ruled that “strict scrutiny” was not the proper standard for judging the law’s constitutionality, you knew that that the plaintiffs had lost. To pass strict scrutiny, the law would have to be justified by a compelling governmental interest, be narrowly tailored, and be the least restrictive means needed to achieve that goal. Given the lack of any compelling proof of the need for a photo ID, it is hard to see how the law could survive that test. But the rejection of strict scrutiny permitted Simmons to rule that the law’s burdens, such as they are, do not need much justification.

Simmons cited the US Supreme Court holding in the 2008 case of Crawford v. Marion County Election Board, in which the Court upheld the constitutionality of an Indiana law that required voters to produce a photo ID. The Supreme Court ruled the requirements of Indiana’s ID law to be “eminently reasonable” and met the minimum burden of not being a “significant increase over the usual burdens of voting.”

Simmons followed the lead of the Supreme Court and held that, “I am not convinced any qualified elector need be disenfranchised by [the act].” He also noted that the photo ID requirements do “not qualify as a substantial burden on the vast supermajority of registered voters.” He did concede that the act does place “a somewhat heavier burden on certain individuals,” such as those born out-of-state who may have difficulty obtaining a birth certificate, and “the elderly and infirm who have difficulty traveling to PennDOT Drivers’ License Centers, and homeless persons, also face a somewhat heavier burden.”

Well duh, as they say. That was the point of the lawsuit — the constitutionality of a law that imposes a heavier burden to exercise the right to vote upon a minority of voters.

We are not at the end of the game, however. The ACLU is appealing the decision to the Pennsylvania Supreme Court. In addition, the Justice Department is investigating the Pennsylvania’s voter ID law under Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices. No word yet from the Feds.

Election fraud is real. If you don’t think so, read Robert Caro’s account in his book Means of Ascent about Lyndon Johnson’s first election to the US Senate in 1948. It’s very clear that Johnson “won” the Texas Democratic primary by 87 votes only when late reporting districts conveniently provided him with just enough votes to procure the victory.

I have no doubt other elections have been won because of fraud in the reporting of votes or merely because of mistakes by incompetent election officials who miscount, lose or fail to report votes. But the new photo ID requirement does nothing to lessen that kind of fraud or mistake. It only serves to discourage or bar eligible registered voters from voting.

If you are like me, you have stood before a voting machine and wondered if your vote was actually going to be counted. You push some buttons and walk away trusting that someone, somehow, will see to it that your vote is tallied and added to the millions of other votes.

But have you ever stood in a voting line and wondered if the person in front of you, Adam Adams, was actually Adam Adams and not an impersonator?

No? I thought not. Do we really believe that there are hundreds or thousands of folks out there who are impersonating others and “stealing” their votes. Think about it. If I want to illegally vote as John Burkoff, I have to know where John is registered to vote and get to the polling place before John does in order to claim his vote, or else hope or know that John is not going to vote that day. Is that plausible? Could I, and my vote-stealing colleagues, really pull this off in sufficient numbers to change the outcome of an election?

Of course not. There have been only 10 confirmed cases nationwide of voter impersonation since 2000. A photo ID law to bar voter impersonation is a solution in search of a problem.

To swing an election would require hundreds or thousands acts of voter impersonation by scores or hundreds of voters. Try to imagine a mastermind determined to create fraudulent votes, who rounds up, pays, and trains hundreds of bad guys and gals to engage in voter impersonation, and not have this conspiracy become known. Conceivable, yes. Realistically possible — no.

If voter impersonation fraud is not the reason for the photo ID requirement, what is? State Representative Mike Turzai gave away the game when he bragged to the Republican State Committee on June 23, 2012, that Pennsylvania’s new voter ID law would “allow Governor Romney to win the state of Pennsylvania” — nothing like a little suppression of the vote to give your candidate a boost.

Still, I am willing to believe that not all who support the photo ID law are as cynical as Mr. Turzai. Many sincerely believe that the law will ensure fairer elections. Unfortunately, they are mistaken.

Estimates of how many eligible, registered voters who will not be able to vote vary widely — but all must concede that the number disenfranchised will far exceed the number of false votes that would occur if the ID law did not exist. Put it this way — we know that hundreds or thousands will be denied the vote because of the ID law, and, even if you think those who can’t vote are mostly to blame for failing to get the proper identification, other than your disgust at their incompetence, there is no justification for denying them the right to vote. Being reasonably competent or knowledgeable is not a prerequisite to having the right to vote. If we allow folks to vote who believe that President Obama is not an American citizen, surely we can allow folks to vote who lack a “proper” photo ID.

Voter suppression has a long and inglorious history in American. At various times, “We the people” has not included those who didn’t own property, who couldn’t pay a poll tax, and who couldn’t pass a test about American history or its Constitution.

Fortunately, those crude tactics have passed away. Unfortunately, the requirement of a mandatory photo ID, which appears to have voter suppression as it primary purpose, will bring back those days of old. We can only hope that the Pennsylvania Supreme Court perceives the pernicious nature of the new law and enjoins it, so that all Pennsylvanians can exercise their most fundamental democratic right — the right to vote.

Lawrence Frolik is a Professor and Distinguished Faculty Scholar at the University of Pittsburgh School of Law. He is one of the founders of the field of Elder Law, and has published numerous works on the subject, including The Law of Later-Life Health Care and Decision Making and Residence Options for Older and Disabled Clients.

Suggested citation: Lawrence Frolik, The New Pennsylvania Photo ID Voting Law — “Say Cheese”, JURIST – Forum, Aug. 29, 2012, http://jurist.org/forum/2012/08/lawrence-frolik-voter-id.php.

This article was prepared for publication by Caleb Pittman, head of JURIST’s academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org