Voting
(Christian Schwier)

Analysis

Pennsylvania became the third state in the last month to shed its hotly contested law requiring voters to show identification at the polls.

Following years of litigation, the Corbett administration has dropped the case by deciding not to pursue an appeal of the Commonwealth Court’s January injunction of the voter ID law.

Gov. Tom Corbett, a Republican who is up for reelection this year, said he will go to the General Assembly to retool the law, but not in this legislative session.

Courts seem to be increasingly skeptical of the legitimacy of these kinds of laws, said Jessie Allen, a professor at the University of Pittsburgh School of Law.

Last month, a state court in Arkansas found that state’s voter ID law to be unconstitutional and a federal judge in Wisconsin struck down that state’s voter ID law as unconstitutional.

Like the judge in the Wisconsin case, U.S. District Judge Lynn Adelman of the Eastern District of Wisconsin, Allen said she couldn’t foresee an adequate legislative cure for the law.

Because the Pennsylvania judge, Commonwealth Court Judge Bernard L. McGinley, made a finding that there have been no examples of in-person voter fraud, it would be very hard for the state to show that the benefit of the law would be worth its burden, Allen said.

However, Joshua Maus, spokesman for Pennsylvania’s Office of General Counsel, which defended the law, didn’t see that as a roadblock.

Photo IDs are “vital to do just about anything,” he said, since they are required for driving, entering many buildings, and buying certain items. It’s no different at the polls, he said.

“The issue here is: Photo ID is required for everything,” he said, and they can be used to ensure fair elections, too.

The lack of easy access to compliant IDs was fatal to the law, according to McGinley’s January decision striking down the law. He stuck to that opinion last month when he ruled on post-trial motions filed by the Corbett administration and upheld his January decision.

“In this controversy, the challenged statute omits a means of providing liberal access to compliant photo ID, as is necessary to survive constitutional attack,” McGinley said in his April opinion.

Under the constitution, the state can’t pass a law that requires voters to show photo identification without also including in the law a mechanism for the state to provide those IDs to voters. Pennsylvania’s voter ID law doesn’t do that, the judge said in his initial opinion.

During the course of litigation over the law, the state has offered new methods by which voters could get compliant IDs in order to satisfy judicial concerns.

Since the Republican-controlled General Assembly passed and Corbett signed the law, called Act 18, in the run-up to the 2012 presidential election, it has yet to be fully enforced. Almost immediately after its passage, the American Civil Liberties Union, along with other public-interest legal organizations, brought a challenge to the law and it has remained in various states of suspension since then as the challenge to it volleyed between state courts.

The things that need to be fixed in the law are legislative in nature, said Maus, saying that the law needs to offer “true liberal access” to compliant photo IDs. Going back to the legislature will “establish a clean legal slate,” he said.

The public interest groups that brought the suit had welcomed the Corbett administration’s decision against pursuing appeal as an end to the law when the announcement came out last week.

Asked if this was likely to actually be the end, Witold Walczak, legal director of the ACLU of Pennsylvania, said it’s “certainly the end of this iteration.” If Corbett is reelected, the administration might have renewed zeal for the legislation, he said.

What has changed since the passage of the law, though, is that this “lawsuit was tremendously successful in changing the public narrative of these laws.”

This suit and others like it have refuted the three major myths that underpin voter ID laws—that there is a problem with in-person voter fraud; that everyone has an ID; and that if you don’t have one, it’s easy to get one.

Those things are now understood to be untrue, he said.

Of the factors likely contributing the most to the decision not to appeal was that there were certain to be voters who would be disenfranchised under the law as written and that the administration had stipulated the fact that they had no evidence of in-person voter fraud, said Gregory Harvey, of Montgomery McCracken Walker & Rhoads.

He doesn’t expect to see a new version of the law, he said, citing the recent series of defeats similar legislation has suffered coupled with the hesitance on the part of legislators to spend political capital to try again.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.