Jennifer R. Clarke
Jennifer R. Clarke ()

On Jan. 17, Commonwealth Court Judge Bernard L. McGinley issued his long-awaited ruling on the challenge to Act 18, Pennsylvania’s photo ID law, in Applewhite v. Commonwealth, 330 MD 2012. McGinley held that Act 18 cannot be applied consistent with its terms and that it violates Article I, Section 5 of the Pennsylvania Constitution. The court permanently enjoined state officials from enforcing the act’s photo identification requirement for voting.

The case is not yet over because the state officials still have the opportunity to file post-trial motions in the Commonwealth Court or to appeal to the Pennsylvania Supreme Court. It is therefore early to draw any final conclusions about the case’s meaning or its national impact. But the 300-page opinion, findings of fact and conclusions of law offer a vivid look at the law and its impact on registered voters in Pennsylvania.

Count I of the complaint asserted that Act 18 can never be implemented as it was intended. Under the act, the Pennsylvania Department of Transportation (PennDOT) is directed to provide a free non-driver’s ID to all registered electors. PennDOT, however, would not and could not do so because it requires all applicants to supply an original birth certificate and Social Security card. The evidence introduced by petitioners in 2012 demonstrated that millions of Americans do not have original birth certificates and, in fact, many spend years trying to obtain one. In late 2012, therefore, the Pennsylvania Supreme Court held that this provision does not comport with the “liberal access” required by the act.

Counsel for state officials recognized this problem early on and invented a new photo identification, to be issued by the Department of State, not PennDOT. The new, so-called DOS card was meant to have fewer documentary requirements and was slated to launch in August 2012 after the preliminary injunction hearings ended. The Commonwealth Court’s Aug. 15, 2012, decision predicted that the card—launched just days before—would be widely available and denied petitioners’ motion for a preliminary injunction. On appeal, the Pennsylvania Supreme Court held that a predictive judgment was not sufficient and remanded the case for further hearings. Those hearings disclosed that the Department of State continued to impose documentary requirements and the Commonwealth Court preliminarily enjoined enforcement of Act 18 on Oct. 2, 2012.

The Department of State continued to change and reduce the requirements for the DOS card. In the recent opinion, issued after a two-week final injunction hearing in 2013, McGinley held that the Department of State lacks the power to issue such a card; thus, the DOS card cannot replace the PennDOT card as the card of last resort.

Then, “in an abundance of caution,” the court set out to ascertain whether the DOS card could nonetheless be deemed to replace the PennDOT ID card. The court reviewed both the administration of and the education about the DOS card. As for administration, the court held that it “limits rather than liberalizes access.” Unlike the process for securing a PennDOT ID—an applicant merely signs a verification that he or she is a registered voter—the process for a DOS card is complex. An applicant must travel to PennDOT, then wait while a PennDOT employee telephones a “limited” Department of State help desk. The help desk employee checks the voter registration database to determine whether the applicant is a registered voter, a step that is “unreasonable given the inherent and acknowledged inaccuracies, missing and outdated information it contains.”

“Because the [registration] database does not contain information for all registered electors, the verification requirement unreasonably delays, if not outright denies, an elector’s access to compliant photo ID,” the opinion said.

The procedural barriers were “particularly troubling” “when coupled with the logistical impediment of transport to PennDOT [driver's licensing centers] during limited hours.” The court compared the relatively few locations (71) to obtain an ID card and the state’s 9,300 polling places: “Requiring electors who lack compliant photo ID (and thus have no driver’s license) to get to a [driver's license center] that may not be in their county, and may be several miles away and unreachable by public transport, is untenable. Compound that barrier by physical limitations, preventing certain electors from traveling or waiting in line, the [requirement] becomes insurmountable.” State officials were aware of these problems but did not take steps to solve them, such as using mobile units to get cards to people.

In concluding that the DOS ID card is not a satisfactory replacement for the PennDOT card, the court was equally critical of state officials’ efforts to educate the public. Noting that the court had previously refused to enjoin education efforts, the court found that “despite this latitude, DOS has made no effort to counter its prior misinformation campaign, or to educate voters as to a consistent process for obtaining free photo ID for voting purposes.” The court declared itself “wholly unconvinced” by state officials’ argument that voters share responsibility for obtaining correct information. “Respondents’ position on ‘shared responsibility’ rings hollow after respondents fed misinformation to electors on numerous occasions and accurate information is difficult to find,” the court said.

The court next turned to Count II of the complaint, which alleged that Act 18 is unconstitutional on its face because it deprives hundreds of thousands of registered voters the right to vote guaranteed by the Pennsylvania Constitution. The court agreed, accepting the multiple, corroborating estimates by state officials and petitioners’ experts that hundreds of thousands of registered voters lack identification.

First, the court held that the law is facially unconstitutional because it fails to provide a nonburdensome way of providing a compliant identification for the reasons articulated in disposing of Count I. The court alternatively assumed that the DOS ID is valid. The right to vote being “fundamental,” the court held that a law violates that right when it denies the franchise or when the law “makes it so difficult as to amount to a denial,” citing Winston v. Moore, 244 Pa. 447, 91 A. 520, 523 (1914). Because Act 18 “renders Pennsylvania’s fundamental right to vote so difficult to exercise as to cause de facto disenfranchisement,” the court balanced the scope of the disenfranchisement against the purported state interest, applying a strict scrutiny analysis. The court found that state officials, having conceded that they were not aware of in-person voter fraud, failed to produce evidence supporting any other governmental interest.

The specific provisions of the law, moreover, are unreasonable: Act 18 fails to include commonly used identification cards, like gun permits or bus passes. The requirement that cards must have expiration dates is “a legislative disconnect from reality”; for example, to be valid for voting, college IDs must have expiration dates, even though most student IDs do not have them. Finally, unlike laws in other states, Act 18 does not provide a safety net to ensure that every registered voter can obtain a valid photo identification. “Respondents asked this court to start with the foundation that everyone who wants to get to PennDOT can, and anyone who wants ID can get it. … As the developed record shows the contrary, the court rejects respondents’ predicate,” the court said.

Finally, the court declined to find a violation of Count III, which asserted a denial of equal protection under the Pennsylvania Constitution. Finding that Act 18 is facially neutral, the court also found that petitioners had failed to produce evidence that individuals lacking compliant identification belong to a specially protected class or are singled out for disparate treatment.

The court concluded with a simple, cogent rejection of Act 18: “Voting laws are designed to assure a free and fair election; the voter ID law does not further this goal.”

Jennifer R. Clarke is the executive director of the Public Interest Law Center and one of the lead counsel in the photo ID challenge, along with lawyers from Arnold & Porter, the American Civil Liberties Union of Pennsylvania and the Advancement Project. She can be reached at