By Brendan Fischer on September 18, 2012

Last month, a Pennsylvania court upheld the state's American Legislative Exchange Council (ALEC) - inspired voter ID law, but in hearings on appeal that state's supreme court has given the law a harsh reception. Might the Pennsylvania Supreme Court follow Wisconsin's lead and throw out the voter ID law before the 2012 election?

UPDATE: The Pennsylvania Supreme Court has vacated the lower court ruling, potentially setting the state for the voter ID law to be blocked before November.

"At some point, for this to work, the state has to make sure that every person will be able to get the identification they need," attorney David Gersch, who is representing plaintiffs ACLU and the Advancement Project, told the Pennsylvania Supreme Court last week.

As many as 800,000 people in the state do not have the forms of ID required under the law, and only 7,200 have obtained the free voter ID cards since the law was passed. With the 2012 elections just six weeks away, "there is too little time, too many people, and nothing in the statute that guarantees people will be able to get the ID they need," Gersch said.

Justices Debra McCloskey Todd and Seamus McCaffery appeared to follow that line of reasoning, asking the state's attorneys, "What's the rush?"

"We, as a court, do accord great deference to the legislature['s]" decision to pass the voter ID law, Justice Todd said. "But when done so close to a federal election ... it seems to me that degree of deference may be somewhat dissipated."

The bill passed on party lines and was signed into law in March under a cloud of partisanship. Like most of the 37 states that have introduced strict voter ID bills since 2011, Pennsylvania's law was introduced by an ALEC member and reflects elements of the ALEC model Voter ID Act. In June, Rep. Mike Turzai (R), an ALEC member, declared that voter ID "is gonna allow Governor Romney to win the state of Pennsylvania."

"Could there be politics, maybe?," asked Justice Seamus McCaffery in hearings on the appeal.

Different Outcome in Pennsylvania, Wisconsin

Though the Pennsylvania Supreme Court has indicated a chilly reception to the state's voter ID law, that sentiment was not shared by the lower court judge who upheld the law last month.

In August, Pennsylvania lower court Judge Robert Simpson, a Republican, denied an injunction that would have blocked the state's voter ID law in time for November's election, despite significant evidence the law would impose burdens on the voting rights of hundreds of thousands of Pennsylvanians, and no evidence of the kind of in-person "voter fraud" the law's supporters say it would prevent.

Judge Simpson relied on the 2008 U.S. Supreme Court decision in Crawford v. Marion County Election Board, which held that Indiana's voter ID law did not violate the U.S. Constitution, despite Indiana failing to provide any evidence of in-person voter fraud.

It was a different outcome in Wisconsin, where two separate state judges found that, under the Wisconsin Constitution, Crawford v Marion did not govern the outcome and the state's voter ID law imposes unconstitutional burdens on voting rights. Unlike the U.S. Constitution, the Wisconsin constitution contains express protections for the right to vote (declaring that "[e]very United States citizen age 18 or older who is a resident ... in this state is a qualified elector") and provides the exclusive basis for creating laws to implement voting requirements -- which one court found did not include imposing additional qualifications like a photo ID.

Pennsylvania Judge Downplayed Burden on Voters

Though the Pennsylvania challenge was also filed under the state constitution, which does include some voting rights protections (it deems that "elections shall be free and equal"), Judge Simpson came to a different outcome, finding that the law did not create additional voting qualifications and did not violate the constitution's voting protections.

That Pennsylvania judge "seemed to downplay the burden placed on voters needing to go out and get the voter i.d., such as the costs to poor voters of getting the underlying documents," wrote University of California-Irvine law professor Rick Hasen. While such burdens could be justified if the law served a valid purpose, Hasen wrote, "there is no evidence of impersonation voter fraud," so "the law would be imposing a burden on voters for no good reason."

Judge Simpson wrote in his August 15 decision that "I am not convinced any qualified elector need be disenfranchised" by implementing the voter ID law, "based on the availability of absentee voting, provisional ballots and opportunities for judicial relief for those with special relief for those with special hardships, I am not convinced... [Pennsylvanians] will not have their votes counted."

This tone is distinct from the two judges who found Wisconsin's similar voter ID law unconstitutional. Dane County Judge Richard Niess wrote that the voter ID law "fails to account for the difficulty its demands impose upon indigent, elderly and disabled citizens." Judge David Flanagan, also in Dane County, found that although the law provides for a voter identification card at no charge, obtaining the ID "can easily be a frustrating, complex and time-consuming process" that "can require the expenditure of an amount of money that is significant for an eligible voter who is indigent." On balance, the Wisconsin judges found the benefits of the law -- stopping statistically insignificant voter fraud -- did not outweigh the costs of disenfranchising more than 300,000 Wisconsin voters.

Will Pennsylvania Supreme Court Follow Wisconsin's Lead?

In Pennsylvania, those seeking to overturn the law are perceived to have an uphill battle. The Pennsylvania Supreme Court is divided 3-3 along ideological lines, so if there is a split decision, the lower court ruling upholding voter ID would stand. The only way to reverse Judge Simpson's decision is to convince a conservative member that applying the law would create chaos and unjustifiable burdens on Pennsylvania voters before an important presidential election just weeks away.

Trying to predict how the Pennsylvania Supreme Court will rule is a risky endeavor. At the lower court level, the ACLU and Advancement Project put on an exceptionally strong case showing the law's likely impact on hundreds of thousands of Pennsylvanians -- and the state conceded there is no evidence that in-person voter fraud actually exists -- but the elected Republican judge downplayed that evidence, calling the law a "reasonable, nondiscriminatory, nonsevere burden" and deferring to the legislature's decision to pass it.

Voting rights proponents are hoping that the Pennsylvania Supreme Court will follow the lead of Wisconsin judges and recognize the significant burdens voter ID laws place on the voting rights of the most disadvantaged members of society. With the arc of American history bending towards an expansion of the franchise, acknowledging burdens on such a fundamental right should defy party affiliations.

A ruling from the Pennsylvania Supreme Court on that state's voter ID law is expected this month.

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.