A Pennsylvania Commonwealth court judge has delayed enforcement of the state’s voter ID law for the November election, ruling that the difficulty experienced by voters trying to obtain a valid ID made disenfranchisement too likely. However, despite the injunction, poll workers will still be able to ask for ID from voters, and voters without ID will apparently have to cast a provisional ballot, which could lead to a lot of confusion at the polls.
In the ruling, Judge Robert Simpson followed the guidelines handed down by the state Supreme Court two weeks ago, charging him with determining whether the state offered “liberal access” to IDs to any eligible voter who lacked one and wanted to participate in the election. After hearing a litany of stories about long lines, difficulty with paperwork and other hurdles, Simpson wrote that, despite the state trying to implement changes on the fly to remedy the situation, “I cannot conclude the proposed changes cure the deficiency in liberal access [to ID's] identified by the Supreme Court…. I accept Petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed.”
The decision was expected, as Judge Simpson hinted at an injunction last week.
However, Simpson did not stop implementation of the entire voter ID law, known in Pennsylvania as Act 18. First of all, the part of the law requiring proof of identification for absentee voting will go through, as the plaintiffs dropped that from their request for an injunction. More important, Judge Simpson very narrowly crafted the injunction. First of all, poll workers can still ask voters in November to produce a valid ID. Here’s what Judge Simpson wrote about that:
I reject the underlying assertion that the offending activity is the request to produce photo ID; instead, I conclude that the salient offending conduct is voter disenfranchisement. As a result, I will not restrain election officials from asking for photo ID at the polls; rather, I will enjoin enforcement of those parts of Act 18 which directly result in disenfranchisement.
The only part that directly results in disenfranchisement, in Simpson’s ruling, is the part where voters without ID who cast a provisional ballot have that ballot tossed. Simpson says that these ballots will count. However, nothing in his ruling says that voters without ID will be allowed to cast a regular ballot. His entire injunction refers to removing the voter ID-related circumstances under which “A provisional ballot shall not be counted.” I don’t know how you can read this without concluding that everyone without ID will have to cast a provisional ballot.
Consistent with this expressed intent, and consistent with principles of
severability, I will enjoin enforcement of those provisions of Act 18 which amend
the provisional ballot procedures of the Election Code and cause
disenfranchisement based on failure to present photo ID for in-person voting. The
injunction will have the effect of extending the express transition provisions of Act
18 through the general election.
Finally, this is just a delay to, not a ban on, voter ID. The process will be available for the next election in 2014, which gives more time for the state to distribute ID, but no guarantee to prevent disenfranchisement at that time. After all, in the months leading up to this election, just 10,000 of a possible 750,000 eligible voters without ID have received one. So there’s a massive amount of work to be done even to get ready for 2014.
I understand why the plaintiffs would be happy with the ruling; nobody without ID can be turned away from the polls. But I think Penda D. Hair of the Advancement Project gets this right. “We are concerned that the ruling will allow election workers to ask for ID at the polls and this could cause confusion,” she said. “This injunction serves as a mere Band-Aid for law’s inherent problems, not an effective remedy.”
Just think of the scenarios. A voter is asked for ID, and producing none, instructed to write a provisional ballot. Technically that ballot must be counted, but the voter might leave, suspecting their vote won’t count. Or they may not follow the provisional ballot instructions closely enough. Or poll worker error could easily lead to a voter being asked to leave without voting.
Election theft does not happen as a result of in-person voter fraud, which would be the dumbest and most onerous way to steal an election ever. But nevertheless, we have this mania over voter ID whipped up by the right. Pennsylvania gets a reprieve today, but a very narrow one.
UPDATE: Think Progress includes this passage which they claim will eliminate the provisional ballot requirement:
Buried in the opinion is a line establishing that the requirement that voters without IDs cast only provisional ballots will also not be in effect during the November election. After describing a “transition” provision from January 1, 2012 until September 17, 2012 where voters who do not show ID may cast a ballot “without the necessity of casting a provisional ballot,” the judge concludes that “the injunction will have the effect of extending the express transition provisions of Act 18 through the general election.” The impact of this line is that voters without ID will cast normal, not provisional, ballots this November, but they will still be asked for ID.
So this all relies on poll workers knowing that the provisional ballot process is not in effect for voter ID, but that they have to ask for a voter ID anyway. I’m not necessarily confident in that approach, but it’s better than how it initially looked.