Pennsylvania Secretary of State Carol Aichele had a message for the hundreds of people gathered at the State Capitol yesterday to rally against voter ID laws: “Go home” and find ways to make their fellow citizens comply with the state’s controversial law.
“We hope that some of the people who are outside would go home from this rally,” said Aichele during a closed-door press conference. “Focus that energy, go home and find five people who need transportation to a [driver’s license] ID center and take those people to get photo identification.”
Today, a court will begin hearing arguments in a case to determine whether the state’s voters must in fact carry Aichele’s burden. Ten Pennsylvania residents will seek to demonstrate how the state denied them ID for voting purposes, thereby showing the harmful effect of the law that is required to knock it down. The voters’ lawyers are seeking an injunction to stop the law due to the problems it poses for hundreds of thousands of voters. For an injunction, they don’t have to prove the law violates voters’ rights. They need only to convince a judge that there are too many unresolved issues with the law that deserve deeper scrutiny.
The legal push and pull over voter ID laws has moved through a growing number of states, as federal and state courts weigh the laws’ constitutionality. The fight in Pennsylvania, like an earlier one in Wisconsin, stands out in that plaintiffs believe they’ll be able to show clear harm to specific groups of people, including along racial lines.
Testifying against the state will be Matt Barreto, director of the Washington Institute for the Study of Ethnicity, Race & Sexuality, who surveyed over 1,285 Pennsylvanians and found disproportionate burdens on multiple voting populations, including Latinos, women, the elderly and those of very low income.
If Barreto’s research is correct, then 1.3 million Pennsylvanians, or 14.4 percent of the voter-eligible population, lack ID—that’s twice as large as the number of votes President Obama earned in the state in 2008. Aichele’s office originally said that only 1 percent of voters, or about 88,000, lacked ID, but then later released figures suggesting that 9.2 percent of voters, or 759,000, didn’t have state-issued photo ID. Yesterday, Aichele said they’re back to sticking with the 88,000 number.
The Department of Justice has requested information from Aichele’s office about the numbers of eligible voters lacking ID and their racial demographics. Aichele said at the press conference, “We will comply with the request from the Department of Justice and provide the information they have requested.”
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DOJ’s intervention in the state is unique (for a lot of reasons) because unlike the other states they’ve interrogated for passing questionable voter laws—Texas, South Carolina and Florida—Pennsylvania doesn’t need their pre-clearance. Those other states have histories of discrimination at the polls and are considered “covered jurisdictions” under Section 5 of the Voting Rights Act. The investigation into Pennsylvania is being done under Section 2, which prohibits voting practices that discriminate on the basis of race, ethnicity or language, whether by intention or impact.
Asked by a reporter if she thought DOJ’s request suggested the voter ID law might be constitutionally faulty, Acihele responded: “The state of Pennsylvania believes the law passed by the General Assembly was valid and will sustain any kind of test. Our law is very similar to the law in Indiana and we are being called into question under Section 2 not Section 5. South Carolina and Texas have past histories of discrimination. Pennsylvania does not. So we would fall under the same category as Indiana.”
This is the same argument that Aichele will lean on in this week’s court hearings. Their original crutch, that voter ID laws are needed to stop voter fraud, went bust when they realized they had no prosecuted cases to back up their argument.
Republican Philadelphia Commissioner Al Schmidt tried to help along the fraud case by releasing a report last week on the subject, but it failed miserably. The so-called “Schmidt Report” may have even helped civil rights lawyers, since it reinforced the point that voter-impersonation fraud hasn’t and isn’t happening.
So the state will claim their voter ID law is the twin to Indiana’s law, which passed muster under the US Supreme Court. But there are two big problems with that.
First, this week’s case is being argued on state constitutional grounds, not federal constitutional grounds—as was the case with the Indiana law challenge. There is technically no “right to vote” established in the US Constitution, only a prohibition of race-based voting obstructions. Meanwhile, Pennsylvania’s constitution is much more clear about its citizens’ voting rights.
Second, civil rights lawyers failed in Indiana because they didn’t produce any individuals who had actually been harmed by the law. In the Pennsylvania case, there are 10 people who will show how they’ve been harmed by the law, including being denied ID, or being denied the documents needed to obtain ID. That makes it more akin to Missouri. In that state, when voter ID boosters claimed their law cloned Indiana’s, the Missouri Supreme Court still rejected it after residents testified how the law prevented them from voting. And the US Supreme Court’s own Indiana decision left a path open for voters to revisit the case if discrimination was found.
It’s the discriminatory impact that Aichele and the state seem to be in flat-out denial about. They’ve not even acknowledged the impact on black and Latino voters. The only remedy Aichele has proposed is modification of the rules for obtaining a photo ID, which her office has modified twice.
When I asked Aichele if these modifications suggested an admission that the voter ID law is burdensome for voters, she responded, “I would say we have identified specifically the problem of out-of-state residents who are having trouble getting birth certificates from other states and other countries for that matter. The birth certificate issue is a tough hurdle.”
It’s indeed tough for over 120,000 Pennsylvanians from Puerto Rico, where the government invalidated all birth certificates before 2010. Reaching out to the Latino population seems not even a thought to Aichele’s office, which built a website, votespa.com, to spread awareness about voter laws that has an inoperable link to the Spanish translation of the site.
Another note on race and ethnicity: when Aichele said Pennsylvania has no history of racial discrimination, she wasn’t telling the whole truth. It was just 2010 when Chester County was sued in federal court for depriving students at the historically black Lincoln University of their right to vote. Aichele was named in that suit, as she was the commissioner of Chester County at the time and in charge of their elections. Now she’s in charge of the state’s elections. Everett L. Butcher, head of the Chester County Minority Caucus, was at yesterday’s rally and told me that Lincoln University students may be deprived again, because their student IDs don’t have expiration dates.
While Butcher was out in the sweltering heat yesterday, still advocating for black students, Aichele was in the cozy confines of a state government building, where she neither had to face her history nor the hundreds of people fighting against voting obstacles. But this week, the state won’t be able to avoid facing Viviette Applewhite, Wilola Shinholster Lee, Grover Freeland, Gloria Cuttino, Nadine Marsh, Dorothy Barksdale, Bea Bookler, Joyce Block, Henrietta Kay Dickerson and Devra Mirel “Asher” Schor—the petitioners in the case. These are real Pennsylvanians with personal narratives about how the new voting rules acted as barriers to their voting rights. Before the judge, Aichele won’t have the luxury of telling them to simply “go home” and find out how to deal with it.
—Brentin Mock
