When the ACLU of Pennsylvania, the Public Interest Law Center of Philadelphia (PILCOP) and other legal advocates were looking for individual plaintiffs who wished to participate in their challenge to Pennsylvania’s new voter identification law, they turned to law centers that work in the trenches with low-income, disabled and other disadvantaged clients. One such site is the Face to Face Legal Center, a nonprofit law clinic located in the Germantown section of Philadelphia that, under varying names, has been providing for more than 20 years free legal services to low-income clients living at or below 150 percent of the federal poverty guidelines.

As the ACLU and PILCOP knew, one of the many services that the center provides is help in procuring birth certificates and legal identification. As volunteer attorneys at the center quickly learn, a significant number of the clients coming to the center arrive because they lack legal identification. Without such ID, they cannot open up bank accounts for direct deposit of their disability checks or access various other benefits and opportunities that are key to their survival, such as low-income utility programs and federal housing benefits. For those low-income clients looking for work, the need for proper identification is essential, as most employers also now require legal ID of all those seeking employment. However, obtaining legal identification, and particularly photo ID, can be extremely difficult and in some cases is nearly impossible.

Among the petitioners in the legal challenge to the voter ID law were three clients of the Face to Face Legal Center: Viviette Applewhite, a 93-year-old woman who marched with Dr. Martin Luther King Jr. in the 1960s for the right to vote; Wilola Shinholster Lee, who has voted regularly for decades; and Gloria Cuttino, a woman who first registered to vote in 2008, but who has since become politically active and regularly works at the polls. These clients lacked valid voter ID at the time the legal challenge was filed and eagerly agreed to become petitioners in the effort to obtain a preliminary injunction blocking the law from taking effect before the November elections.

Two other legal center clients, Stanley Garrett and Laila Stones, testified as witnesses at the hearing before Commonwealth Court Judge Robert Simpson. Garrett is a veteran who lacks state ID but has a Veterans Administration photo ID that is considered insufficient for 
voting purposes, and Stones has voted for years and is being denied a chance to 
vote for lack of ID. At the time these five clients became petitioners and witnesses in the challenge, known as Applewhite v. Commonwealth of Pennsylvania, the center was representing all but Applewhite in seeking what are called “delayed birth certificates,” which can take many months, and even years, to obtain.

In an expert witness report submitted as part of the petitioners’ case, the center’s legal director noted that possession of a birth certificate is the lynchpin for being able to obtain most forms of photo ID. In recognition of the enormity of this problem, the center established a monthly legal clinic in mid-2008 that is staffed by volunteer lawyers and law students and dedicated exclusively to obtaining birth certificates.

As noted in the expert report, while obtaining a birth certificate may seem like a simple matter, in fact, those who need a birth certificate, and particularly poor and disabled clients, face a host of obstacles in obtaining one. Common problems include the fact that many birth certificate applications require the applicant already possess a photo ID; many states do not have a birth record for individuals who were born at home and whose birth, as a result, was never officially recorded; and many low-income and poorly educated individuals lack the life skills and technology to navigate an often-complex application process.

Many others simply cannot afford to pay the fees and costs associated with the process. Indeed, the clients at the Face to Face Legal Center often cannot pay “small” application fees, which the center has been able to cover through donations from the Villanova University School of Law Pro Bono Society and from grants.

The expert report points out that birth-certificate applications are sometimes rejected due to discrepancies between information in the application and information in 
the state or city vital records department where the applicant was born, such as differences in the surname of the applicant 
(in cases such as adoptions or unwed 
parents) or the date of birth. In these cases, the applicant must collect a number of 
decade(s)-old documents containing various data so that a delayed birth certificate can be created.

Petitioners Lee and Cuttino have both needed to have a delayed birth certificate created. Both were born at home in southern states, and their birth certificates were never officially recorded. The center has been handling Lee’s case for more than a year-and-a-half, and has been waiting for a key piece of documentation ordered in March of this year that has still not arrived. Similarly, while Cuttino started the application process for a birth certificate on her own, she came to the center in April when the bureaucracy and expense became overwhelming. Even with the center’s assistance, because of various 
complications relating to errors in school records and the delay in the arrival of Social Security records, the certificate still cannot be created.

In his recent decision upholding the voter ID law at the preliminary injunction stage, Simpson said the statute was constitutionally valid on its face, and denied the preliminary injunction. Simpson noted that the voter ID law could be upheld under either a federal “flexible” standard, or under a Pennsylvania “substantial degree of deference/gross abuse” standard.

However, Simpson seemed to credit the legal center’s expert report, as well as the testimony of center clients Garrett and Jones, among others, noting that the petitioners’ counsel did an excellent job in “putting a face” on those who are burdened by the new law. He also stated that he might have ruled in favor of Applewhite and the other petitioners if a “strict scrutiny” standard were applicable, and that voters could challenge the new law on constitutional grounds as it is applied to them in the future.

The ultimate outcome of the litigation is unknown, as the petitioners, which include not only a number of individuals, but also the Homeless Advocacy Project, the League of Women Voters of Pennsylvania and the NAACP Pennsylvania State Conference, have filed an appeal to the Pennsylvania Supreme Court and seek a decision before the upcoming elections.

But, as stated in the expert report, the center’s experience has been that “significant, unduly burdensome and costly barriers exist which inhibit or prevent a significant number of indigent people from obtaining legal identification.” Whatever the final outcome in Applewhite and any accommodations that may be made for the November elections, the multiple barriers to obtaining birth certificates and photo ID that can be used for all purposes will continue to plague low-income, disabled and other disadvantaged people like Lee and Cuttino for years to come.

Niki Ludt, a 1983 graduate of Temple University School of Law, is the director of the Face to Face Legal Center and has been involved with the clinic for 20 years.