By Sara
Mullen, Associate Director, ACLU of Pennsylvania
Today
was the twelfth and final day of the voter ID trial. In front of a full
courtroom, which included Secretary of State Carol Aichele, attorneys for both
sides presented their final arguments to Judge McGinley.
Jennifer
Clarke, executive director of the Public Interest Law Center of Philadelphia
(PILCOP), argued for the petitioners. The law, she said, unreasonably burdens the
cherished right to vote. Voting shouldn’t be a test of whether people are
willing to go to PennDOT multiple times or endure immense physical pain to get an
ID. Pennsylvania’s constitution, unlike
the U.S. Constitution, specifically states that “no power… shall at any time interfere
to prevent the free exercise of the right to suffrage.”
Ms.
Clarke walked the court through the various figures for people lacking
PennDOT-issued ID, including testimony from Rebecca Oyler, until recently an
official with the Department of State, who estimated 4-5% of registered voters
(or 320,000-400,00 individuals) lack ID, to Secretary Aichele’s statement at a
recent legislative hearing that 3.5% of Philadelphia voters who voted in
November 2012 lacked ID (if applied statewide, that would be 190,000), to
petitioner’s expert Dr. Bernard Siskin’s estimate of 511,000 registered voters
who lack ID. No matter who you ask, it is clear that at least a hundred
thousand if not hundreds of thousands of registered voters are at risk of disenfranchisement.
Throughout
her argument Ms. Clarke wove in stories of the real voters who would be
disenfranchised if the voter ID law is allowed to go into effect. Voters like
Marian Baker, an elderly Berks County woman who wanted to obtain a valid ID after
she learned about the law. The last time she had renewed her ID she had to
stand in line for four hours at PennDOT, but a leg injury prevented her from doing
so again. She called PennDOT to explain her situation and asked for an accommodation,
including obtaining an ID through mail, but was told she would have to wait “just
like everybody else.” Unaware that the injunction blocking enforcement of the
law had been extended to the May 2013 primary, she did not vote in that
election, mistakenly believing she did not have the necessary ID.
The commonwealth
has argued that thanks to the “streamlined” process for obtaining a Department
of State (DOS) ID at one of the 71 PennDOT locations around the state, voters
can easily obtain the necessary ID for voting, said Ms. Clarke. But the
Department of State’s own “exceptions spreadsheet” shows that hundreds of
voters who applied for the DOS ID left PennDOT empty-handed, and even using the
commonwealth’s figures (a major point of dispute during the trial), dozens of
registered voters who applied for the ID before the November 2012 election
either received the ID long after the election or never received it at all. If
the voter ID law had been in effect, these legally registered voters would have
been disenfranchised.
The
commonwealth also failed to educate the public about the DOS ID. In its $4
million ad campaign, the Department of State chose not to include information
about the existence of this “easily accessible” ID, nor how or where to obtain
it. When asked about this oversight, Deputy Secretary for External Affairs and Elections
Shannon Royer said they did not want to confuse voters by “talking about an ID
most people had never heard of.” Kurt
Myers of PennDOT spoke of a “shared responsibility” that voters had to know
what kind of ID they needed and where to obtain it, but if the information isn’t
provided, “how can people take that responsibility?” Ms. Clarke asked.
For
those unable to obtain an ID, the law provides no safety net, said Ms. Clarke.
Unlike some other states with voter ID laws, the Pennsylvania version does not
allow a voter who shows up at the polls without an ID to sign an affidavit affirming
his or her identity. Pennsylvania also lacks another critical safety net other
states have – no-excuse absentee voting.
Alicia
Hickok, an attorney with Drinker Biddle Reath, argued for the commonwealth. She
said that state employees worked “tirelessly and diligently” to help voters and
took their responsibilities seriously. The voter ID law was to protect the
public good – not the good of individuals or private interests. The Department
of Aging has been reaching out to seniors, the age group most of the petitioners’
witnesses fall in to, to help them, she said.
Ms.
Hickok disputed that large numbers of people lack acceptable ID, saying that
petitioners’ expert played “fast and loose” with the data, and pointed to the
fact that college students can use their student IDs if they have expiration
dates and that those in nursing homes and personal care facilities can use an
ID printed by that facility. In her rebuttal, Ms, Clarke noted that many colleges
still do not issue voter ID-compliant IDs, and two Department of State
officials admitted they do not track which nursing homes and personal care
facilities offer their residents IDs and therefore did not know how many of
residents were actually able to obtain an ID.
Ms.
Hickok’s main argument was that the legislature was allowed to “regulate the
franchise,” and that the voter ID merely regulates the election process – it does
not “deny the franchise.” Requiring voters to show ID promotes integrity of the
election. She cited Crawford v. Marion
County Board of Elections, a 2008 case out of Indiana, in which the U.S.
Supreme Court found that Indiana’s voter ID law was constitutional.
In
her rebuttal, Ms. Clarke noted that the challenge to Pennsylvania’s voter ID
law differs in several critical ways, including the fact that petitioners
brought their suit under the Pennsylvania constitution and not the U.S.
Constitution. In the Indiana case, petitioners did not provide testimony from a
single witness who would be disenfranchised – in stark contrast to the
Pennsylvania case, in which numerous witnesses testified.
When
the fundamental right to vote is burdened, said Ms. Clarke, we have to weigh
that against the justification. In this case, the commonwealth has not argued
that there is fraud. Instead, they say it is about the “integrity of the
election.” Yet the Department of State’s top career official overseeing
elections, Jonathan Marks, testified that he was confident of the integrity of
Pennsylvania’s elections.
In
the 16 months since the law was initially passed, despite numerous tweaks and
attempts to improve the system, the state has still not been able to show that
no one will be disenfranchised under the voter ID law. “It is time to put an
end to this and enjoin this law,” Ms. Clarke concluded.
During
her closing arguments, Ms. Hickok did agree to extend the preliminary
injunction blocking enforcement of the law through the November 2013 election.
Petitioners are asking that the injunction continue until the case has been
completely resolved. They are also asking that the “soft roll-out” aspect of
the injunction, in which voters are asked for but not required to show ID, be
eliminated going forward.
Following
the two sides’ closing arguments, the judge announced that the court was recessed and left. For several minutes, spectators and attorneys looked
around in confusion, not sure if court would be coming back into session. Several
minutes later, the bailiff stuck his head out of the door to judge’s chamber
and called out, “Adjourned!” With that, the voter ID trial finally came to a
close.
Labels: voter ID
