The recently enacted Pennsylvania voter ID law has been an important issue this election season. The law requires that all eligible voters show photo identification issued by a government agency or a specifically enumerated list of other institutions, such as colleges and nursing homes. (There is an exception to the photo requirement for individuals who have a religious objection to being photographed. These individuals may obtain a government-issued, nonphoto ID card instead.) The law, enacted March 14, designated the primary election in May as a test run in which voters would be asked to present photo identification but not be turned away for lack of such.

Although the law has been enjoined from taking effect for November’s election, this editorial board is against the law for three reasons. First, this law is an infringement on the fundamental right to vote because it is putting additional unnecessary barriers before an individual can exercise his or her right to vote. Second, the timing of the law is likely to cause voter disenfranchisement. And, third, this law is likely to disenfranchise traditionally marginalized members in our society.

As of the writing of this article, the immediate and full implementation of the Pennsylvania voter ID law has been suspended by Commonwealth Court Judge Robert Simpson. The dictates of the law, namely requiring voters to show certain specific photo identification documents before being able to cast a ballot at the polls, have again been reduced to a test run for the general election this November. This law may be fully implemented in the future, but for now the effect of this ruling is that voters in Pennsylvania will not have to provide photo identification to cast their ballots on Election Day, November 6. This issue will no doubt continue to be debated and scrutinized in the future as plans for full implementation are rolled out.

Proponents of the law argue that it combats voter fraud. These advocates argue that requiring photo identification to vote is not a cumbersome step and that the sanctity of voting needs further protections from fraudulent votes. They assert that the state has made every possible effort to make getting the necessary identification as easy as possible. Proponents believe that the casting of ineligible votes dilutes the votes of those who legitimately have the right and follow the proper rules to exercise their right to vote.

Opponents of the voter ID law argue that voting is a fundamental right in our democracy and that any attempt to limit the right to vote by enacting unnecessary requirements is an unacceptable infringement. Furthermore, opponents assert that this law is aimed at people who do not already have acceptable photo identification, namely and disproportionately: minorities, immigrants, seniors and people with limited financial means. Opponents also point to the potential logistical issues such as the limited hours (outside of working hours) to obtain photo identification, including obtaining birth certificates or documentation of legal name changes such as marriage and divorce certificates. (One group greatly disadvantaged by the new voter ID law is those born in Puerto Rico, who are U.S. citizens by birth. On July 1, 2010, Puerto Rico invalidated all prior issued birth certificates. Those wishing to obtain a new birth certificate must apply for one.)

Similarly, opponents point out that the requirement to apply for photo identification in person can be particularly burdensome for those with limited mobility or lack of access to private and public transportation. Another issue that is part of the law that is outside of the four corners of the legislation is the suspicious intended timing of full implementation of the legislation right before a presidential election, especially given the lack of a well-thought-out process for helping voters obtain the newly required photo identification that takes into account common issues such as how to document U.S. birth or name changes. This has created a peculiar reaction in the opponents of the voter ID law. Some opponents of the law celebrated the delay of the legislation until after the upcoming election as a partial victory.

As most of our readers know, when there is proposed and passed legislation, there are always proponents and opponents — this is especially true of laws affecting fundamental rights. If a law were to take away or curtail access to a fundamental right for a certain class of individuals (leaving equal protection issues off the table at this point), opponents of this law would not see it as a victory if the suspension or change in access to the fundamental right would occur at some point in the future as opposed to immediately after the law is passed. In fact, the curtailment of the liberty or the extra hindrance put in the way of exercising the liberty should be upsetting to opponents regardless of when the law takes effect.

Although opponents of the law can be against it on the grounds that it requires an extra step before being able to exercise the right to vote, proponents have argued that the process to get the photo identification is relatively simple. Although it is debatably a simple process, there was a relatively short window of time between the March enactment of the law and the November election to get this photo identification document. For people without proper photo identification, there was a real possibility they may have missed the opportunity to vote in the November election.

The postponed implementation of the Pennsylvania voter ID law has, at least in the media, somewhat satisfied opponents of the law. What is the difference? It is the timing of the law. This law was passed at a time when litigation over the law continued until mere weeks before the general election. The process was made difficult by the confusion created over the debate over whether it would be implemented and by the government having to act quickly to create a reliable voter photo identification processing system, including constantly changing, and therefore confusing, rules issued by the agencies tasked with its implementation. The rush to get photo identification that was created from the timing of this law created a high likelihood of voter disenfranchisement. With the delay of implementation to a time when there is not an impending general election, the likelihood of voter disenfranchisement has been substantially lessened, but not eliminated. If the proponents of the law were really interested in cutting down on voter fraud, this law would have been passed with less suspicious timing. In addition, in-person voter fraud, the ill that the law aims to prevent, is not even proven to be a common issue in unlawful voting. The selling of votes and improper use of absentee ballots is a much more common problem, according to media reports.

The Pennsylvania voter ID law provides for a much more lenient identification process for obtaining and casting absentee ballots. Under the law, there is no mechanism for verifying the identity of the person mailing in the absentee ballot. Had the law’s proponents truly aimed to have a meaningful impact on voter fraud, then the law should have also required a more stringent identification procedure for absentee ballots. Creating this type of calamity just before a general election to address an ill that is not even clearly documented, much less documented to influence elections, is underhanded on the part of its proponents because they are coordinating to deprive citizens of the right to vote.

Aside from the timing aspect of this law, as written, this law is not a good way to combat voter fraud. People motivated to commit voter fraud will not let lack of a photo identification card stop them from doing so. On the other hand, even with the longer time to obtain photo identification cards, some individuals who would otherwise vote will not do so because of the extra step required to exercise the fundamental right to vote. The most vulnerable individuals in our community will be the people who are most likely to be disenfranchised by this legislation, regardless of how much time is given to implement the law. •

Peter C. Buckley, Chairman
Leigh Ann Buziak
Kristine L. Calalang
Shaune Ferrara
Teresa Jurgensen
Michael O’Connor
Amber Racine
Preston Satchell
Royce Smith
Rob Stanko
Marisa Tilghman
Djung Tran
Nakul Warrier
Meredith Wooters

The Editorial Board of Young Lawyer is composed of members of the legal profession. They serve voluntarily and are independent of Young Lawyer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed op-ed pieces.