Does Judge Simpson’s Injunction Inadertently [Knock Pennsylvania Out of Complaince with] Federal Law?

Does the injunction that Judge Simpson issued today inadvertently violate [knock Pennsylvania out of compliance with] the first-time voter identification requirement in the Help America Vote Act of 2002 (“HAVA”)?

HAVA, in Section 303(b), requires [states to pass laws requiring] voters who register by mail and are voting for the first-time to present identification at the polls.  Pennsylvania implemented this requirement of HAVA in the law that preexisted the current Photo ID Law.  Specifically, before the Legislature passed the Photo ID Law (Act 18), Section 1210 of the Election Code required:

(a)  At every primary and election each elector who appears to vote in that election district for the first time and who desires to vote shall first present to an election officer one of the following forms of photo identification:

(1)  a valid driver’s license or identification card issued by the Department of Transportation;

(2)  a valid identification card issued by any other agency of the Commonwealth;

(3)  a valid identification card issued by the United States Government;

(4)  a valid United States passport;

(5)  a valid student identification card;

(6)  a valid employe identification card; or

(7)  a valid armed forces of the United States identification card.

The election officer shall examine the identification presented by the elector and sign an affidavit stating that this has been done.

(a.1)  Where the elector does not have a photo identification as provided for in subsection (a), the elector shall present for examination one of the following forms of identification that shows the name and address of the elector:

(1)  nonphoto identification issued by the Commonwealth, or any agency thereof;

(2)  nonphoto identification issued by the United States Government, or agency thereof;

(3)  a firearm permit;

(4)  a current utility bill;

(5)  a current bank statement;

(6)  a paycheck;

(7)  a government check.

The election officer shall examine the identification presented by the elector and sign an affidavit stating that this has been done.

Because the new requirement in the Photo ID Law that everyone show photo ID at every election made the requirement that first-time voters show ID unnecessary, Act 18 amended this section to do away with the distinction between first-time voters and all other voters.  The Act also limited the acceptable forms of identification to photo ID.  Specifically, Act 18 made the following changes to Section 1210(a), which changes, under Section 11 of the Act, would become effective for any election held after September 17, 2012:

(a)  At every primary and election each elector who appears to vote [in that election district for the first time] and who desires to vote shall first present to an election officer [one of the following forms of photo identification:

(1)  a valid driver’s license or identification card issued by the Department of Transportation;

(2)  a valid identification card issued by any other agency of the Commonwealth;

(3)  a valid identification card issued by the United States Government;

(4)  a valid United States passport;

(5)  a valid student identification card;

(6)  a valid employe identification card; or

(7)  a valid armed forces of the United States identification card] proof of identification [defined elsewhere in Act 18 as photo ID].

The election officer shall examine the proof of identification presented by the elector and sign an affidavit stating that this has been done.

[(a.1)  Where the elector does not have a photo identification as provided for in subsection (a), the elector shall present for examination one of the following forms of identification that shows the name and address of the elector:

(1)  nonphoto identification issued by the Commonwealth, or any agency thereof;

(2)  nonphoto identification issued by the United States Government, or agency thereof;

(3)  a firearm permit;

(4)  a current utility bill;

(5)  a current bank statement;

(6)  a paycheck;

(7)  a government check.

The election officer shall examine the identification presented by the elector and sign an affidavit stating that this has been done.]

Although Judge Simpson’s Order today reinstated certain sections of the preexisting Election Code (relating to provisional ballots) for the November election, it did not reinstate the preexisting version of Sections 1210(a) or 1210(a.1).  In fact, Judge Simpson’s Order explicitly says: “All other provisions of Act 18 remain in effect.”  This means that the section of the preexisting Election Code that required first-time voters to show ID no longer exists — it was stricken by Act 18 and Judge Simpson did not reinstate it in his ruling today.

Therefore, the Pennsylvania Election Code, after the injunction issued today, does not require first-time voters to show ID to vote [in November].  Rather, as with all other voters, poll workers can ask first-time voters to show photo ID, but must let them vote if they do not have ID.  If, as seems to be the case, Judge Simpson’s Order permits first-time voters who registered by mail to vote without showing any kind of ID, the Order may violate [knock Pennsylvania out of compliance with] HAVA.

There is a simple solution to this seeming oversight:  the former versions of Sections 1210(a) and 1210(a.1) can be reinstated for the November election, just like Judge Simpson reinstated the former provisional ballot provisions for the November election.  But, unless and until the Order is so modified, it would appear to be [place Pennsylvania law] in conflict with federal law.

UPDATE (10/3/12):

To clear up misunderstandings that I have heard from some:  HAVA required states to pass laws requiring first-time voters who register by mail to show ID.  Pennsylvania complied with that requirement years ago.  But as a result of Judge Simpson’s ruling yesterday, Pennsylvania no longer has a law that will require first-time voters to show ID — at least not in the November election.  Therefore, it would seem that the Election Code in Pennsylvania will not comply with HAVA for the November election.  [I edited my original post as indicated above to try to clear up any confusion].

Here is a simple way to look at it:  Go try to find a section of the Pennsylvania Election Code that, after Judge Simpson’s ruling yesterday, will require first-time voters to show ID in November.  You will not be able to find one.

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4 Comments

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4 responses to “Does Judge Simpson’s Injunction Inadertently [Knock Pennsylvania Out of Complaince with] Federal Law?

  1. Pingback: “Does Judge Simpson’s Injunction Inadertently Violate Federal Law?” | Election Law Blog

  2. Pingback: Does Judge Simpson’s Pennsylvania Injunction Inadertently Violate Federal Law? | Free and Equal PA » The Voting News

  3. The order does not “violate” HAVA; it simply removes the HAVA requirement from state statutes. I doubt that every single item in federal election law (or other law) is also in state statutes. So the federal law is still in effect, and those who register by mail must show proof of ID.
    The exception to this is if they have successfully matched another database such as the driver license database or the social security database. This exception is also in HAVA, but often overlooked.

    Cheers,
    Paul Malischke

    • HAVA does not require first-time voters to show ID. It requires STATES to pass LAWS that require first-time voters to show ID. Section 303(b) of HAVA says: “[A] State shall, in a uniform and nondiscriminatory manner, require an individual to meet the requirements of paragraph (2) [which requires first-time voters who register my mail to show ID].”

      After Judge Simpson’s ruling yesterday — which, as you correctly note, had the effect of removing the first-time voter requirement from the PA Election Code for the November election — there is no law in PA that will require first-time voters to show ID in November. And since PA no longer has a law that requires first-time voters to show ID in November, it seemingly is not in compliance with HAVA.

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