Voter ID Law “Done” for the 2012 Presidential Election

Photo courtesy of Todd Wiseman/The Texas Tribune
Photo courtesy of Todd Wiseman/The Texas Tribune

by: Mary O’Rourke, Staff Writer

“Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania: done.”

Pennsylvania House Majority Leader Mike Turzai’s comments unknowingly set into motion a hotly contested examination into the validity of Act 18, otherwise known as the Pennsylvania Voter ID Law.

Turzai’s comments came months before a group of individuals and organizations, including various amici, filed an action in the Commonwealth Court requesting the court to enjoin the Commonwealth of Pennsylvania from implementing the Voter ID Law, legislation that requires registered voters to present photo identification in order to cast a vote.

Commonwealth Court Judge Robert E. Simpson originally heard the challenges to the law, which asserted that the law violated rights provided by the Pennsylvania Constitution. On Aug. 15, 2012, Judge Simpson issued an opinion holding that the law was constitutional and that as a result, electors would be required to present proof of identification in order to vote in the 2012 Presidential Election. Those challenging the law appealed, and the Supreme Court of Pennsylvania held argument about a month later.

The Supreme Court refrained from reversing the Commonwealth Court’s decision, and instead sent the case back to determine whether registered electors were being provided with alternative forms of identification in compliance with Act 18 so that no voter would suffer from disenfranchisement.

Although the Pennsylvania Department of Transportation (“PennDOT”) was statutorily obligated to provide registered electors with photo identification cards, it was not complying with the law. As the Court explained, PennDOT had failed in allowing liberal access to identification cards and instead required registered elector applicants to complete a rigorous application process to obtain one.

As a result, the Supreme Court found that the law was not being implemented as written, and remanded the case back to the Commonwealth Court to determine whether PennDOT ID cards were liberally accessible to registered electors. The Supreme Court advised the Commonwealth Court that after its examination, if it was still not convinced that no voter disenfranchisement would arise from the Voter ID requirement, then it was obligated to issue a preliminary injunction against the enforcement of the law.

On remand, Judge Simpson held another hearing from which he concluded that in the remaining five weeks before the election the estimated need for those who had no form of identification was too great. Not convinced that no voter disenfranchisement would arise out of the implementation of the Voter ID Law, the Commonwealth Court issued an order enjoining the Commonwealth from requiring that registered electors’ present identification in order to cast a vote for the 2012 Presidential Election.

Although the court’s ruling appears to be a victory for critics of the Voter ID Law, the law was only preliminarily — and not permanently — enjoined. The law’s identification requirements may have been inapplicable for the November election, but they were not declared unlawful for future elections. Indeed, both the unsigned opinion of the Supreme Court and the Commonwealth Court’s opinion issuing the injunction indicate that Act 18’s requirements would have been upheld if they had not been implemented in such a short time period before the election.

During oral argument before the Supreme Court, challengers of Act 18 acknowledged that, although unconstitutional in this context, it would be constitutionally permissible for a state to require the presentation of an identification card in order to cast a ballot. In fact, other states such as Virginia, Tennessee, Georgia, Indiana and Kansas have upheld voter ID laws under their respective constitutions.

Both the Supreme Court and Commonwealth Court have indicated that the Voter ID Law is constitutional. The opinions enjoining the law rely on the fact that the law failed to guarantee that all qualified voters would have access to a photo ID before the November election. However, in the order enjoining Act 18’s ID mandates, there is no mention of any section of the Pennsylvania Constitution.

Both courts have been unclear as to whether they are to be construed as impacting the constitutionality of election regulations. Regardless of their lack of clarity, the rules articulated in these decisions now control. Until the Pennsylvania Supreme Court clarifies what kind of effect its decision will have on election law, the legal community is bound to the explanations of law within these recent opinions.

Although infamously and insistently referred to throughout the election, Turzai’s partisan comments surprisingly received only cursory treatment by both courts. Neither the majority of the Supreme Court nor Judge Simpson found them significant enough to discuss in their opinions. Justice McCaffery’s dissent touched up the question of animus sparked by Turzai’s statements.

“It is clear to me that the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political,” McCaffery said in his dissenting opinion.

Does the Supreme Court’s failure to address the issue of animus mean that Turzai’s statements were irrelevant? Although the Court does not provide an answer, Judge Simpson’s opinion appears to have adopted the federal animus standard announced in Crawford v. Marion County Election Board, in which the United States Supreme Court held that if a nondiscriminatory law is supported by other valid neutral justifications, it should be upheld regardless of any partisan interests that may have motivated individual legislators. The Supreme Court’s failure to adequately address the consequence, if any, of Turzai’s statements, has left those in the legal community guessing as to whether legislative animus even matters.

The Pennsylvania Supreme Court’s decision is important in another respect. Although the opinion was unsigned, the elected court, which is currently consists of three Democrats and three Republicans, did not split according to party affiliation as many had predicted. The per curiam order was joined by all of the Republican Justices and one Democrat. Bruce Ledewitz, a constitutional law professor at Duquesne University and a frequent critic of the court, was surprised when his prediction that the court’s decision would be divided according to party lines was wrong. Ledewitz commended the justices for reaching outside party lines.

“Partisan considerations did not enter into it at all and everyone thought it would. The people of Pennsylvania should be very proud of their judges. This is a real rebuke to people who say you cannot get non-partisan justice out of an electoral system. I think we did,” Ledewitz said.


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