[EL] Breaking News: Thoughts on the Pennsylvania Voter ID Decision

Wed Aug 15 09:56:41 PDT 2012

It is typically illegal because most states will not let you vote unless you are a resident, and typically define “resident” in such a way that a person cannot be a resident a two or more states.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: Richard Winger [mailto:richardwinger at yahoo.com]
Sent: Wednesday, August 15, 2012 12:47 PM
To: law-election at uci.edu; Smith, Brad
Subject: Re: [EL] Breaking News: Thoughts on the Pennsylvania Voter ID Decision

Is it really illegal for a person to vote in two different states?  If so, what law says so?

Someone who votes in two states, and who is a resident of each of those states, is not casting two ballots in the same election.  Even in a presidential election, each state is choosing its own set of presidential elector candidates, so no one is voting twice in the same election.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147

--- On Wed, 8/15/12, Smith, Brad <BSmith at law.capital.edu> wrote:

From: Smith, Brad <BSmith at law.capital.edu>
Subject: Re: [EL] Breaking News: Thoughts on the Pennsylvania Voter ID Decision
To: "law-election at uci.edu" <law-election at uci.edu>
Date: Wednesday, August 15, 2012, 9:36 AM

I apologize if I appear to nitpick Rick’s thoughtful review of trial court’s decision, but Rick makes one statement – which he has made often before, as have others – that I think is simply incorrect.

Rick writes: “The judge acknowledged it was undisputed that Pa. had no evidence of a problem with impersonation voter fraud, the only kind of fraud which a voter id law can prevent.” (my emphasis).

That may be true if we define fraud in a very strict legal sense, and if we assume that the only purpose of such a law is then to prevent such fraud. But voter ID laws can help prevent or deter other ineligible voters from casting ballots. For example, during the Crawford litigations, plaintiffs offered up a woman named Faye Buies Ewing as an example of an eligible voter without ID. She had a Florida driver’s license, and residences in both Florida and Indiana. It turns out on close examination that she probably was not eligible to vote in Indiana, having established Florida as her domicile. There is no particular reason to believe that she was trying to commit “fraud,” and if she had been she probably could have come up with some type of acceptable ID and voted in Indiana. But as the most common ID for most eligible voters is a drivers license, that is what most people rely on for compliance. In Ewing’s case, her lack of acceptable ID (precisely because it appears she was trying to vote in Indiana in error, rather than fraudulently) correctly kept her from voting. There are almost certainly many other cases of persons who do not realize that they are ineligible to vote in certain states, and while voter ID laws may not prevent them from voting (because they may still have acceptable ID) they make it less likely. Is this a  big problem for election integrity? Probably not. Is it a function of voter ID laws other than preventing impersonation voter fraud – yes.

Similarly, there are people who have multiple residences and may actually wish to commit fraud, by voting in two states. While voter ID laws may not “prevent” that from occurring if the person knows the rules and is determined, it certainly can deter casual and isolated violations. Voter ID laws may also help to make sure that persons vote in the proper districts. I don’t believe that any of these things are major problems, but they are improper votes cast by means other than voter impersonation that may be deterred by Voter ID laws.

Additionally, critics of voter ID laws sometimes note that absentee balloting is probably a much more ripe area for fraud. But efforts to fight absentee ballot fraud may also eventually require some type of ID. This doesn’t necessarily justify selective ID requirements, but it does suggest that requiring voters to have ID may be a necessary step toward broader anti-fraud measures.

I have argued repeatedly that opposition to voter ID laws has suffered from wildly implausible claims about the number of people likely to be seriously hindered, inappropriately casual use of the term “disenfranchised,” and an unwillingness to fairly state the argument for voter ID laws. None of this particularly changes my position, which is skeptical of voter ID, and I’m sure they wouldn’t change Rick’s position, either, or that of most ID critics. Which is all the more reason to treat fairly and completely the pro-ID arguments, at least on an academic listserve.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

  Professor of Law

Capital University Law School

303 East Broad Street

Columbus, OH 43215

(614) 236-6317

bsmith at law.capital.edu</mc/compose?to=bsmith at law.capital.edu>

http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, August 15, 2012 10:40 AM
To: law-election at uci.edu
Subject: [EL] Breaking News: Thoughts on the Pennsylvania Voter ID Decision

http://electionlawblog.org/?p=38564

Breaking News: Thoughts on the Pennsylvania Voter ID Decision<http://electionlawblog.org/?p=38564>

Posted on August 15, 2012 7:38 am<http://electionlawblog.org/?p=38564> by Rick Hasen<http://electionlawblog.org/?author=3>

In a careful and well-written 70-page opinion<http://www.pacourts.us/NR/rdonlyres/676A25C6-3760-4376-B7EF-71EA4A6623F9/0/CMW330MD2012ApplewhiteDetermPrelimInj_081512.pdf>, which is almost certainly going to lead to Pennsylvania’s use of its new voter id law in the November elections, state court judge Robert Simpson has rejected a preliminary injunction to bar use of the voter id on grounds it violates the state constitution.

In essence, the judge determined the following: the new voter i.d. law is likely to affect more than 1% but significantly less than the alleged 9% of Pennsylvania voters who plaintiffs alleged lacked the i.d.  He thought it credible that state officials could get i.d.s into the hands of most voters who wanted them on election day. Many of the plaintiffs brought into the case to “put a face” on the case will have other means of voting, such as through absentee balloting. For those relatively few voters who will have significant difficulties getting voter id, and who cannot vote with an absentee ballot., they may well be entitled to an order, as applied to these voters only, barring the use of the id law as unconstitutional. Under the Supreme Court’s Crawford case (which is not strictly applicable in this case, decided under state law, but which is persuasive authority to the court), invalidating the law in the entire state is too broad of a remedy; the focus should be on those voters facing special burdens.

In terms of the state’s interests, the judge did acknowledge that some Republican legislators may have passed the law for partisan reasons, but he did not impute that intent to most legislators. In any case, following Crawford, the judge said the fact that there were also neutral justifications for the law, such as preserving election integrity, which justified the law regardless of partisan motivations. The judge acknowledged it was undisputed that Pa. had no evidence of a problem with impersonation voter fraud, the only kind of fraud which a voter id law can prevent. But again, following Crawford, the judge said proof of an actual problem is not required. Finally, the judge said that if he had to apply “strict scrutiny” to the case (he concluded he did not), he might have reached a different decision.

A few reactions:

1. This is a careful opinion by a judge who struggled with the evidence and the law and, as I expected, issued a thoughtful, non-ideological and well-done decision.  I disagree with the decision’s bottom line (more on that below) but there is no doubt this is a judge acting in good faith applying the law and facts as he found them.

2. This decision is almost certain to stand. The case will go to the Pa. Supreme Court, which is currently divided 3-3 between Democrats and Republicans. On the merits and given deference to trial court preliminary injunction decisions, the state Justices are unlikely to break on party lines in this case. But even if they did, a 3-3 tie leaves the lower court opinion in place. I don’t expect there would be any fuller ruling on the merits in this case before November or that any such ruling would lead to a different result.

3. The PA court should be the last stop for this case, which raises only state law issues—no U.S. Supreme Court review.  While there is a chance that the U.S. Department of Justice would now try to get preliminary relief enjoining the use of the voter i.d. law in November infederal court raising a violation of section 2 of the Voting Rights Act, I think that such a remedy would be unlikely to be granted at this time.

4. I am surprised by the ruling, mostly because the press reports made me think that Pa. officials were not ready to implement the law in time to actually get i.d.’s into the hands of people who need them. There were also concerns raised about whether local election officials would implement the law evenly and fairly. The judge, who was there (as I wasn’t) to judge the credibility of witnesses reached the conclusion that Pa. officials were ready, and in fact for most people it won’t be a great burden to get the i.d.

5. I disagree with the ruling on the merits on a couple of grounds.  First, the judge seemed to downplay the burden placed on voters needing to go out and get the voter i.d., such as the costs to poor voters of getting the underlying documents. While burdens on voters would be justified if the law actually served an important purpose, the fact that there is no evidence of impersonation voter fraud to justify a voter i.d.—a point which cannot be emphasized enough—the law would be imposing a burden on voters for no good reason.  And of course it is being imposed for a bad reason: these laws have been favored almost exclusively by Republican legislators likely out of the belief that it will cause a modest decline in Democratic turnout.  But the judge followed the lead of Crawford, and the blame should be with the Supreme Court and not with this judge.  Finally, the judge points to “as applied” challenges as the solution.  But these are expensive and difficult to bring—people who lack an i.d. are going to be among the least connected to the legal system, and there is no doubt that most of these voters will now fall through the cracks.  Again, if there were a solid reason for requiring the i.d., this cost would be more justifiable.  But there isn’t.  I put all of this in context in chapters 2 and 3 of The Voting Wars.<http://amzn.to/y22ZTv>

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, voting<http://electionlawblog.org/?cat=31>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off |

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
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http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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