Pennsylvania Voter ID Ruling May Lead to Confusion at Polls

A Pennsylvania court has found that the state's American Legislative Exchange Council (ALEC)-inspired voter ID law would likely disenfranchise voters and partially blocked its enforcement for the November 2012 election. Ballots cast by voters who do not have ID will still be counted, but the state will still be able to ask for identification and run ads telling voters to obtain ID before election day, potentially leading to confusion at the polls.

ID Not Required, but Pollworkers Can Ask

The October 2 decision came from Pennsylvania Commonwealth Court Judge Robert Simpson, who initially upheld the state's voter ID law in August. The Pennsylvania Supreme Court overturned that decision in September and returned the case to him with explicit instructions to block the law if he found the state had not provided sufficient access to the "free" voter identification cards. Evidence shows that between 100,000 and 700,000 Pennsylvanians lack ID, but only 8,000 had obtained the "free" voter identification cards offered by the state. The state had conceded that voter fraud is essentially nonexistent.

Judge Simpson initially upheld the law because he accepted the state's assertions that it could get ID cards to those who lacked them. But in his October 2 decision, he wrote, "I expected more photo IDs to have been issued by this time," adding, "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 Pennsylvania law, like many of the ALEC-inspired voter ID laws introduced since 2011, contains a provision requiring voters who do not bring the required form of photo ID to cast a provisional ballot. But that ballot will only be counted if the voter returns within six days with the proper form of ID. Judge Simpson blocked this provision of the law, allowing voters who lack ID to have their votes counted, but still allowing poll workers to ask voters to show ID. The decision also appears to require those who don't have ID to cast a separate, provisional ballot, which will be counted but could lead to additional problems in election administration.

Potential for Confusion at Polls

"While we're happy that voters in Pennsylvania will not be turned away if they do not have an ID, we are concerned that the ruling will allow election workers to ask for ID at the polls and this could cause confusion," said Penda D. Hair, co-director for the advocacy group the Advancement Project. "This injunction serves as a mere Band-Aid for the law's inherent problems, not an effective remedy."

This problem is compounded because the judge refused to block the state's voter ID outreach and education efforts, which could mean that Pennsylvanians will see ads telling them to get an ID before election day, leading to more confusion and potentially deterring some voters who did not get an ID from going to their polling place.

Witold J. Walczak, an attorney with the ACLU of Pennsylvania, said that if the state doesn't change its advertising message, "We may be back in court."

"You can't be telling people you need ID if you're not actually requiring ID," he said. "That advertising has to be modified to reflect reality."

"Confusion is not a good thing on election day. Confusion is going to mean some voters stay home. Confusion is going to mean that some poll workers get it wrong," Walczak said.

Political Motivations Laid Bare

Like most of the 37 states that have introduced strict voter ID bills since 2011, Pennsylvania's law reflects elements of ALEC model legislation and was passed by a Republican-controlled legislature. Those who lack the specific forms of ID required under these laws are disproportionately people of color and students -- populations that tend for Democrats.

The political motivations behind the law became particularly clear in June, when Pennsylvania House Majority Leader Rep. Mike Turzai (R), an ALEC member, declared that voter ID "is gonna allow Governor Romney to win the state of Pennsylvania."

In recent weeks, another Pennsylvania legislator and ALEC member, Rep. Daryl Metcalfe, doubled down on the controversy by claiming that the law would only disenfranchise "lazy" people: "As Mitt Romney said, 47% of the people that are living off the public dole, living off their neighbors' hard work, and we have a lot of people out there that are too lazy to get up and get out there and get the ID they need. If individuals are too lazy, the state can't fix that."

On the contrary, witnesses at the trial offered moving descriptions of the burdens they faced in getting the ID, difficulties particularly pronounced for elderly voters and those with disabilities.

The state may appeal the decision before the November election, but such an effort is expected to be unsuccessful because Judge Simpson was carefully following the directives of the Pennsylvania Supreme Court. After the November election a full trial will be held on whether to permanently block the law.