[EL] Question of the night, PA voter ID strategies

[Robbin Stewart]

Rick writes:
Question of the Night: Pa Voter ID <http://electionlawblog.org/?p=37547>
Posted on July 25, 2012 9:13 pm <http://electionlawblog.org/?p=37547> by Rick
Hasen <http://electionlawblog.org/?author=3>

We don’t know what will happen in the state voter id challenge, going
against the new law on state constitutional grounds. If it is true that the
Pennsylvania voter identification law will disenfranchise so many people
who do not have the right photo id and are not likely to be able to get it
before November, is anyone contemplating a federal *as applied* challenge
as left open by the Supreme Court in *Crawford*?

On the practical difficulties of bringing as applied challenges under *
Crawford*, see Julien Kern, As-Applied Constitutional Challenges, Class
Actions, and Other Strategies: Potential Solutions to Challenging Voter
Identification Laws After Crawford v. Marion County Election
Board<http://digitalcommons.lmu.edu/llr/vol42/iss3/3/>
.

 Thanks for reminding me of this article. It discusses one of the three
lawsuits I'd filed against Indiana's voter ID. It gets the facts wrong,
because Professor Kern had read the opinion, but not the complaint or the
briefs. Perhaps I should write a longer and more formal response to the
article, but for now I have a few points.

Crawford does not foreclose all facial challenges to voter ID. The error
the Crawford counsel made was in on the one hand making only a facial
challenge, and on the other stipulating that voter ID was ok for up to 99%
of voters. There are other claims which can be made that voter ID is
unconstitutional for most voters. For example. 80% of Indiana voters pay
$20 for their drivers licenses, and on average $12 for a birth certificate.
Multiply by 2 million voters, and this could support an allegation of
severe burden under Norman v Reed, or a 24th Amendment violation. I know
less about the details in PA.

Any facial challenge should be combined with as applied challenges, even if
pre-enforcement. An as-applied challenge need not be limited to seeking
relief for the individual voter, but can ask that the statute be enjoined
in full (but see Ayote.) The Kern article does raise genuine issues and
obstacles for such suits, including funding and lack of pro bono counsel. I
have potential plaintiffs in Indiana willing to bring as-applied
challenges, but I am holding off until either funding or counsel can be
located.
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