Scott Forsyth, The Daily Record Newswire
Last week I had the privilege of speaking at a bar program entitled “Voters’ Rights: Past and Present.” I covered the present. My part could have been subtitled: “Recent State Efforts to Suppress Voter Turnout.”
I discussed very briefly a variety of devices of dubious motivation, such as proof of citizenship to register, elimination of election-day registration, and curtailment of voting days. But the most popular is photo identification, to be presented before a person casts a ballot. Thirty-one states have adopted or proposed such a device.
The Supreme Court encouraged the rush to photo identification. Back in 2008 it held Indiana’s law on the subject did not violate the Fourteenth Amendment, Crawford v. Marion County Election Bd., 553 U.S. 181 (2008).
Indiana required a resident voting in person to present photo identification issued by a government. A resident lacking photo identification could cast a provisional ballot, which would be counted if he presented the necessary identification within 10 days. A person could obtain a free photo identification card from the Bureau of Motor Vehicles.
Republicans controlled the Indiana legislature when it adopted the law in 2005. All of them voted for the measure. The Republicans were very open in their hope the law would prevent more Democrats from voting than Republicans. Democrats were less likely to carry identification and less likely to follow up after casting the provisional ballot.
The leaders of the state Democratic party were of the same view. Immediately following the law’s enactment they sued. They lost at all three levels.
The Supreme Court uses a “balancing approach” to test the validity of a nondiscriminatory restriction on the right to vote. It will “weigh the asserted injury to the right to vote” caused by the restriction against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” Burdick v. Takushi, 504 U.S. 428 (1992). There is no “litmus test” that separates valid restrictions from invalid restrictions.
In Crawford, the Supreme Court first reviewed the justifications for photo identification and found them to be legitimate. The requirement detects persons attempting to vote twice and thus reduces fraud. It aids the state in cleaning up its registration rolls. Indiana’s contained many duplicate and outdated entries. Finally, the public will have greater confidence in the integrity of the electoral process, knowing fraud is less likely.
Indiana did not cite any evidence of in-person voter impersonation occurring within its borders. The Supreme Court did not mind, referring to “flagrant examples” from other parts of the country, including the long-ago mischief of Tammany Hall.
Turning to the other side of the balancing test, the Supreme Court criticized the plaintiffs for not providing at trial any credible evidence of the number of voters without photo identification and the particulars of the burden the law imposed on those voters. To wit, making a trip to the Bureau of Motor Vehicles was an “inconvenience” but not a “substantive burden on the right to vote.”
The law impacted all and was supported by valid neutral justifications. Consequently, the partisan motivation of the legislators was irrelevant.
Opponents of photo identification laws, like the ACLU, learned from Crawford. They are bringing challenges in state court, relying on state law. They are also beefing up the record.
This January opponents scored a major victory. A state court invalidated Pennsylvania’s law on its face, Applewhite v. Pennsylvania, 330 M.D. 2012 (Pa. Commw. Ct. 2014). The Republicans in the Pennsylvania legislature adopted a photo identification law in early 2012 hoping it would apply to the presidential race. Instead the courts enjoined its use because of difficulties in implementing the law. Those difficulties continued after 2012 and were well documented at trial by the plaintiffs.
Two credible experts, one for each side, estimated between 320,000 and 500,000 voters lacked the requisite identification. The law, as interpreted by the Pennsylvania Supreme Court, required the Department of Transportation to give voters “liberal access” to a free photo identification card. Only 17,000 of these cards were issued.
The court explained the various impediments to the card’s issuance, including the paucity of issuing centers, the lack of public transportation to many of the centers, the waits, the software snarls, the lack of training, and the inaccurate public messaging. As a result the law caused a “defacto disenfranchisement” “of hundreds of thousands of qualified voters.”
The court rejected the balancing test of Crawford. Instead it applied strict scrutiny to the law and found the disenfranchisement wanting under the Pennsylvania Constitution.
The state did not present any evidence of in-person fraud and the court did not look to history. A “vague concern about voter fraud” did not justify the burdens imposed here.
The state admitted the public was confident in the integrity of the elections held to date. Nonphoto identification was sufficient at these elections.
Many voters testified they could not obtain a photo identification card from the Department of Transportation. While the law permitted other forms of photo identification, the court found some not to be readily available and some not to be compliant. The law was thus not narrowly tailored to achieve its goals.
Winning elections should be about convincing a majority of voters that your agenda is better, not gaming the system to prevent supporters of your opponent from voting. The court in Applewhite understood this principle. Unfortunately the Supreme Court did not.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
