by Jenna Poligo

On October 2, 2012 Judge Robert Simpson issued a preliminary injunction prohibiting the enforcement of Pennsylvania’s photo identification requirement for the upcoming election.  Judge Simpson, however, required the state to continue its 5 million dollar voter education program.  In addition, the injunction does not bar the state from requiring poll workers to request identification prior to voters casting a vote.  The injunction merely prohibits the state from preventing registered voters from voting if they fail to produce identification when asked on Election Day.

The continuation of the voter education program combined with the ability to ask voters to produce identification prior to voting runs the risk of creating serious confusion among voters.  In addition, the continued message to voters that valid identification is necessary to vote may deter many would-be voters from participating in this election.  

According to Nick Winkler, director of public relations for Pennsylvania’s Department of State, Pennsylvania recognizes this potential for confusion and there will “indeed be a change.”  Winkler noted that all the state must do is alter its education program from “talking about requiring voter ID to requesting it.”  The websites, mailers, and flyers may be easily edited or amended to reflect this change.  The state has decided to revise the public service announcements to reflect the injunction—most notably by shifting the language from “required” to “requested.”  These changes may resolve some confusion and make voters aware that they will be able to vote regardless of whether or not they will be able to produce valid identification when asked at the polls.  At this time, the public service announcement is no longer available online, which suggests it is being revised. Merely shifting the emphasis from required to requested, however,may not be enough to adequately inform voters of the injunction. This is of particular importance since not every county is providing updated information to its citizens via county websites. In addition to the similarity of the terms, the use of the public service announcement prior to the injunction may have desensitized voters and, thus, the changes may not be comprehended.

Perhaps more importantly, it remains unclear whether the state will address the potential confusion and/or embarrassment surrounding the ability of the state to request voters to produce valid identification before voting. This issue is particularly salient because it has become clear that the individuals most likely to lack valid identification are of low-income.  Such individuals may be hesitant or unwilling to exercise the right to vote for fear of being embarrassed or stigmatized for their economic status.  Even if potential voters who lack valid identification do not fear embarrassment, the risk of confusion remains.  The inherently mixed messages of Judge Simpson’s injunction and the request for identification at the polls will very likely create confusion.

As it currently stands, the state appears committed to its “soft run” of the voter ID law for this election.  The changes to the state education program discussed above will not resolve this problem; in fact, prior knowledge that election administrators will request valid identification at the polling locations may exacerbate the potential for individuals without such identification to refrain from voting.

The Pennsylvania Supreme Court made it expressly clear that disenfranchisement must be avoided.  Pennsylvania has taken the initial steps to avoid this result: Judge Simpson’s injunction and re-tooling the voter education program.  The potential effects of the state requesting valid identification on Election Day must still be addressed.

Jenna Poligo is a second-year student at William & Mary Law School.


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