Pennsylvania’s law requiring voters to show photo identification at the polls is unconstitutional, a state court judge has ruled in striking down the controversial measure.
Six months after the second trial challenging the law, Commonwealth Court Judge Bernard L. McGinley has entered a permanent injunction against its enforcement.
“Voting laws are designed to assure a free and fair election; the voter ID law does not further this goal,” McGinley said in his lengthy opinion, issued as not reported.
Since the Republican-led legislature passed 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 Corbett administration hasn’t indicated whether or not it will appeal the decision.
“We continue to evaluate the opinion and will shortly determine whether post-trial motions are appropriate,” said James D. Schultz, general counsel of the commonwealth, in a statement Friday.
The Office of General Counsel said it would have no immediate comment beyond that.
It is, however, widely expected that the Corbett administration will appeal McGinley’s decision on the measure. Gov. Tom Corbett is a Republican; the measure has been widely criticized by Democrats.
McGinley explained he would assess the law’s constitutionality, “anticipating appellate review.”
“Reviewing the voter ID law on its face, it does not pass constitutional muster because there is no legal, non-burdensome provision of a compliant photo ID to all qualified electors,” McGinley said.
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, he said.
“Respondents candidly acknowledged that the voter ID law does not pass constitutional muster without the DOS ID,” McGinley said. He was referring to the photo identification cards from Pennsylvania’s Department of State, which the Corbett administration developed in order to cure problems that became clear with its initial PennDOT ID program during the first trial in the summer of 2012.
The DOS IDs were billed by the administration as an easier-to-get form of identification, as opposed to the PennDOT IDs that required several layers of paperwork, but McGinley was not convinced.
“Like a house of cards, everything rises and falls upon the legitimacy of the DOS ID,” the judge said.
“The DOS ID is an unauthorized agency creation, and is difficult to obtain. Thus, the voter ID law does not contain, on its face, any valid non-burdensome means of providing compliant photo ID to qualified electors,” he said.
McGinley characterized the system for implementing the law as “frail,” saying that he was faced with essentially the same question as was the state Supreme Court in September 2012 when it weighed whether the state had offered liberal access to compliant IDs for voters through its implementation of the law.
The majority of the state’s Supreme Court said in its per curiam order that September, “We find that the disconnect between what the law prescribes and how it is being implemented has created a number of conceptual difficulties in addressing the legal issues raised.”
In assessing the state agencies’ implementation of the law, McGinley said that they “are not implementing the voter ID law in accordance with its liberal access policy—a prerequisite to constitutionality—because they imposed extra statutory criteria to qualify for DOS IDs and failed to accurately educate electors.”
Hundreds of thousands of voters in Pennsylvania don’t have compliant photo IDs, McGinley said, citing expert testimony given by witnesses for the challengers, and 17,000 IDs have been issued. Fewer than 4,000 DOS IDs are among those 17,000, according to the opinion.
“Given the enormity of this gap, and that time and the opportunity to educate the electorate has not reduced it, there is an unassailable need to ensure liberal access to compliant photo ID,” McGinley said.
Beyond the difficulty of getting a compliant ID, McGinley found that the state had “created a culture of misinformation” rather than educating the public about what voters would actually need at the polls and how to get the IDs.
“In light of the unfairness engendered by misinformation and the extra statutory barriers erected, respondents’ implementation is not in accordance with liberal access,” McGinley said.
He analyzed the law, which affects the fundamental right to vote, under the standard of strict scrutiny, as the challengers had advocated. Strict scrutiny places the burden on state officials to show that the law is “narrowly tailored to achieve a compelling governmental interest,” according to the opinion.
But, the administration “failed to establish a nexus between photo identification—showing voters are who they say they are, and the integrity of elections—when prior elections accepted a number of types of proof to verify identity,” McGinley said. “The burdens the voter ID law entails are unnecessary and not narrowly tailored to serve a compelling governmental interest.”
Even if he had applied the lower standard of rational basis review, as was advocated by the administration, the law as it was written would have likely failed there, too, McGinley said in a footnote.
Michael Rubin of Arnold & Porter in Washington, D.C., worked with the challengers and called the judge’s ruling a “devastating indictment” of the law in a telephone press conference Friday morning.
(Copies of the 103-page opinion in Applewhite v. Commonwealth, PICS No. 14-0073, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •