Oct. 3 (Bloomberg) -- A Pennsylvania judge’s decision to bar the state from enforcing a Republican-backed requirement for voter photo-identification in the coming election may lead to confusion because poll workers can still ask for ID.
Commonwealth Court Judge Robert Simpson yesterday ruled that while election officials can request an ID on Election Day, voters without one can cast ballots that will be counted. The enjoined law would have allowed voters without required ID to cast provisional ballots to be counted only if they returned with photo documentation within six days.
“While we’re happy that voters in Pennsylvania will not be turned away if they do not have an ID, we are concerned that the ruling will allow election workers to ask for ID at the polls and this could cause confusion,” Penda D. Hair, co-director for the advocacy group the Advancement Project, said in an e-mailed statement. “This injunction serves as a mere Band-Aid for the law’s inherent problems, not an effective remedy.”
Pennsylvania is the third state, following Texas and Wisconsin, where courts have rejected voter-ID laws passed by Republican-dominated legislatures since President Barack Obama’s 2008 victory. Supporters of the laws say they’re needed to prevent voter fraud. Opponents contend the measures are aimed at suppressing the votes of lower-income people and the elderly who may be more inclined to vote for Democrats.
Simpson’s original approval of the law was rejected by the state Supreme Court. He said yesterday that it was logistically impossible to make IDs available to everyone who needed one for the Nov. 6 election.
“I expected more photo IDs to have been issued by this time,” Simpson said in the 16-page ruling. “I accept petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed.”
Attorneys for the state are reviewing Simpson’s ruling, said Nils Frederiksen, a spokesman for the Pennsylvania Attorney General. Frederiksen and Nick Winkler, a spokesman for the Department of State, declined to comment on a possible appeal of it to the state Supreme Court.
An appeal by the state is unlikely, said Nathaniel Persily, a professor at Columbia Law School who is following the case.
“There’s a point at which the music has to stop and everybody has to find a chair,” Persily said in a phone interview. “At some point you need to have rules for the election and we’re pretty close to that period.”
Pennsylvania is one of nine states that passed laws requiring voters to show a state-issued ID before casting a ballot. Seventeen states passed laws requiring voters to present some kind of photo ID. Just two states adopted voter-ID laws before 2008.
Mississippi Attorney General Jim Hood said yesterday in a statement that the state’s voter ID requirement won’t be in effect for the November election. Hood said the U.S. Justice Department said further review of the law was needed to determine whether it was discriminatory.
Michael Turzai, the Republican majority leader in Pennsylvania’s House of Representatives, told the Republican State Committee in June the statute would allow Republican presidential candidate Mitt Romney to win Pennsylvania. Turzai said yesterday the law “has always been about creating a level playing field.”
House Democratic Leader Frank Dermody said the decision ensures “the voter suppression law pushed through” by a Republican governor and lawmakers won’t keep anyone from the polls.
The state’s photo ID requirement could have excluded as many as 759,000 eligible voters, or about 9 percent of the state’s electorate, according to an analysis by the Pennsylvania Department of State. Obama, a Democrat, won Pennsylvania with 55 percent of the vote in 2008, garnering 620,478 votes.
Given the lead Obama is showing in opinion polls in the state, yesterday’s decision may have little impact on the outcome, said Nathan Gonzales, the deputy political editor of the Rothenberg Political Report in Washington.
A poll released by Quinnipiac University on Sept. 26 found Obama leading Romney among likely voters by 54-42 percent. A Franklin & Marshall College Poll also released Sept. 26 put the president ahead by 52-43 percent among likely voters.
“Pennsylvania was always on the outskirts of the battleground states,” Gonzales said. “Maybe it was once a dream state to the Republicans, but it’s pretty clear Pennsylvania is not going to be in play in November.”
Enacted in March, the Pennsylvania law requires prospective voters to present a state-issued ID, or an acceptable alternative such as a military ID.
David Gersch, an attorney with Arnold & Porter LLP who represented the American Civil Liberties Union in the case, said of the ruling, “In many respects, it’s a victory.”
It remains to be seen whether the ACLU, the Advancement Project and other plaintiffs will appeal Simpson’s decision to uphold the state’s campaign publicizing the requirements of the new law, Gersch said.
“We have concerns about whether the Commonwealth will continue running advertisements saying you need an ID to vote, which is no longer true,” Gersch said.
Matthew Keeler, a Department of State spokesman, said the agency is reviewing how to recast its publicity to avoid confusion or putting out messages “that would directly conflict with what the judge said.”
Lawyers for both sides are planning to discuss those concerns, Gersch said.
Jerry Goldfeder, an election law expert with New York-based Stroock & Stroock & Lavan LLP, said in an e-mail “there will undoubtedly be confusion at the polls” because of the photo-ID issue.
In August, the Department of State began offering new ID cards as a last resort for those unable to obtain a valid substitute. Simpson said yesterday that voters could apply for the alternative ID without first trying to obtain one from the state Department of Transportation, a requirement the state dropped last week.
In July, the state said in court papers that there were no incidents or investigations of in-person voter fraud.
The state Supreme Court returned the case to Simpson last month, ordering him to assess whether all eligible voters would be able to obtain acceptable IDs if the law were upheld. A four-justice majority had ruled Simpson must block enforcement of the law if there was a chance of voter disenfranchisement.
The state has issued about 11,000 photo IDs since March, or about 11 percent of the minimum it estimated would be needed.
“Consequently, I am still not convinced in my predictive judgment that there will be no voter disenfranchisement,” Simpson said. “Under these circumstances, I am obliged to enter a preliminary injunction.”
Simpson said his ruling is tailored to address conduct which directly results in disenfranchisement. He rejected the ACLU’s request to bar all marketing efforts by the state to educate voters on the photo-ID law.
“I reject the underlying assertion that the offending activity is the request to produce photo ID; instead, I conclude that the salient offending conduct is voter disenfranchisement,” Simpson wrote. “As a result, I will not restrain election officials from asking for photo ID at the polls.”
Last month, as Simpson began reviewing the case, some Pennsylvania counties announced plans to issue voter IDs through county-run nursing homes and colleges. Montgomery County officials have no plans to suspend its program, which is slated to begin tomorrow at 59 locations in the county, spokesman Frank Custer said.
“We’re going forward with it and plan to issue as many as we can between now and the election,” Custer said.
The case is Applewhite v. Commonwealth of Pennsylvania, 330-md-2012, Commonwealth Court of Pennsylvania (Harrisburg).
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