By: Scott McMurtry
After taking unified control of the state government in the 2010 election, Pennsylvania Republicans set out to change the state election laws in two fundamental ways: a redistricting overhaul and an enhanced voter identification law. While the state and Congressional-level redistricting have survived legal challenges to date, plaintiffs were successful in persuading Pennsylvania courts to first stay, and ultimately strike down, the voter ID measure. While confusion over the implementation of the policy persisted even during the 2016 elections, it appears that Pennsylvania’s foray into stringent ID enforcement is over for the foreseeable future.
On March 14, 2012, Governor Tom Corbett signed into law HB 934, an act that amended the Pennsylvania Election Code to bolster the requirements for proof of identification. For the first time, Pennsylvania voters would be required to show a form of state-sanctioned photo ID before casting their ballots (with limited exceptions). The law echoed similar measures passed in other Republican-held states following the 2010 midterms, and despite assurances from Governor Corbett and legislators that the new guidelines were solely intended to prevent voter fraud, questions about partisan motivations arose almost immediately. State House majority leader Mike Turzai seemed to give away the game in June 2012 remarks to a Republican conference. Rattling off a list of legislative achievements from the past year, Turzai said, “Voter ID—which is going to allow Governor Romney to win the state of Pennsylvania—done.”
Unsurprisingly, the ACLU and other voting rights groups filed suit in state court alleging that the law was not narrowly tailored enough to be consistent with the state constitution’s requirement that “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Lead plaintiff Viviette Applewhite, a 93-year old African-American woman who lacked any of the documents necessary to obtain one of the required ID cards, told The New York Times she believed “[t]hey’re trying to stop black people from voting so Obama will not get re-elected….That’s what this whole thing is about.” The challenge reached the Pennsylvania Supreme Court, which returned the question to Commonwealth Court judge Robert Simpson to determine whether state authorities had done enough to ensure “liberal access” to the prescribed picture ID cards. Judge Simpson concluded that the state had not provided sufficient avenues, and ruled that voters could participate in the November 2012 election without producing one of the IDs mandated by HB 934. The ruling left room for confusion since it said election officials could still ask voters to produce the required IDs, which could have a chilling effect, but it was a clear win for the voting rights advocates. President Barack Obama carried Pennsylvania by a comfortable 52%-47% margin in his 2012 re-election campaign.
Ostensibly, the law could have applied in future elections. But following another delay blocking the requirements from applying in 2013 elections, Commonwealth Court judge Bernard McGinley found it unconstitutional in early 2014. “Certainly a vague concern about voter fraud does not rise to a level that justifies the burdens constructed here,” he wrote, indicating particular scrutiny for the state’s justification due to the complete lack of evidence that in-person voter fraud existed in Pennsylvania. Governor Corbett declined to appeal the Commonwealth Court ruling, and following his re-election defeat to Democrat Tom Wolf in 2014, the possibility of the law being revived in an amended form seemed to die. The most recent Pennsylvania Department of State guidelines for voter ID procedures indicate—in bold letters—that “[v]oters do not need to show photo identification at the polling place. Poll workers should not ask every voter for photo identification.”
Nevertheless, the confusion persisted even into the 2016 election. A group called Election Protection reported widespread instances of voters incorrectly being asked for identification, in direct contradiction to the DoS guidance. Even if the cases are anecdotal, the specter of the short-lived voter ID law may hang over Pennsylvania elections in the future.