On May 1, 2012, a group of fourteen individuals and organizations filed a lawsuit, captioned Applewhite v. Commonwealth, challenging Pennsylvania’s Photo ID Law in the Commonwealth Court of Pennsylvania.
Before I delve into the substance of the lawsuit, some background on the Commonwealth Court will help explain the terminology I will be using. The Commonwealth Court is one of Pennsylvania’s two intermediate appellate courts and usually hears appeals from the decisions of local courts or government agencies. However, the Commonwealth Court has “original jurisdiction” over claims brought by or against the Commonwealth, which means that when the Commonwealth sues or is sued, the parties bypass the local courts and go directly to the Commonwealth Court. In a standard lawsuit, the parties bringing the suit would file a “Complaint” and would be referred to as “plaintiffs.” In the Commonwealth Court, however, the parties bringing the suit file a “Petition for Review” and are referred to as “petitioners.”
The Applewhite Petition for Review is available here: Petition. Below I summarize the case set out in the Petition:
The Individual Petitioners: Ten of the petitioners are individual voters who allege that the Photo ID Law will either prevent them from voting outright or place unreasonable restrictions on their right to vote.
The Photo ID Law requires anyone voting in person to present one of the following forms of ID (see previous post for more details):
- Driver’s license of ID card issued by the Pennsylvania Department of Transportation (“PennDOT”)
- U.S. Passport
- U.S. Military ID
- Employee ID issued by the federal government
- Employee ID issued by the Commonwealth, or local governments in Pennsylvania
- ID issued by an accredited Pennsylvania institution of higher learning
- ID issued by a Pennsylvania care facility
- Non-photo driver’s license or ID card issued by PennDOT
Six of the petitioners allege that they do not have and cannot obtain one of the approved forms of ID. None of the six are employed by the federal, state or local governments, attend college, are in the military or reside in a care facility. Therefore, the only forms of acceptable ID for which they qualify are a driver’s license or ID card issued by PennDOT or a passport.
None of the six have a driver’s license or ID card issued by PennDOT or a passport. In order to obtain one of those documents, the petitioners are required to provide a birth certificate. Since none of the six have a birth certificate, each requested one from the state in which he or she was born. Each state, though, either does not have or cannot find birth certificates for petitioners.
Therefore, six of the petitioners simply cannot obtain one of the forms of ID that they will need to vote under the Photo ID Law, and will be unable to vote in any future election. This is so even though several of the petitioners have other forms of ID. One petitioner has an employee ID card from Philadelphia School District, a Social Security card and a voter registration card. None of those forms of ID are acceptable under the new law. Another petitioner, a veteran, has an ID card issued by the U.S. Department of Veterans Affairs. That card also is not acceptable ID under the new law.
Another petitioner alleges that she is burdened by the law because, due to her age and physical condition, traveling ten miles to the nearest PennDOT driver’s license center to obtain a photo ID card would impose an enormous hardship. Another petitioner alleges that PennDOT insisted she pay a fee to obtain a photo ID card even though the Commonwealth is required to issue them free of charge to any voter who does not have qualifying ID. Yet another petitioner who has qualifying ID alleges that, because he is in the midst of a sex change procedure and no longer resembles the woman pictured on his ID, poll workers may reject his ID and refuse to permit him to vote.
The Institutional Petitioners: Four of the petitioners are organizations: The League of Women Voters of Pennsylvania, the NAACP, the Pennsylvania State Conference (of the NAACP) and the Homeless Advocacy Project. The organizations allege that the Photo ID Law will adversely effect their members and require them to redistribute limited resources to help their members attempt to comply with the law.
The Claims (Counts I and II): Petitioners state three claims. Count I alleges that the Photo ID Law violates the section of the Pennsylvania Constitution requiring “free and equal” elections. Count II, which is closely related to Count I, alleges that, because voters are not treated equally under the Photo ID Law, it violates the equal protection guarantees of the Pennsylvania Constitution. Petitioners offer several specific examples of the disparate treatment created by the law that underlies their claims:
- The law requires the name on the photo ID the voter presents to “substantially conform” with the voter’s name in the poll book. Because women often change their names when their marital status changes, it is much more likely that women will have IDs that do not match the name in the poll book. Many women will have to take extra steps and potentially pay additional fees (for copies of marriage certificates and the like) to insure that the name on their IDs matches the name in the poll books. Therefore, petitioners argue, the law imposes a greater burden on women.
- Because, petitioners allege, lower income voters are less likely to need and possess an approved form of ID (such as a driver’s license or passport) and less likely to have the time or resources to travel to a PennDOT center to get one, the law treats voters of modest means differently than others.
- Petitioners also note that voters with disabilities are less likely to have an approved form of ID and may have great difficulty going through the process to get one. As such, petitioners contend, the law disproportionally impacts the disabled.
- Only student IDs from institutions of higher learning in Pennsylvania are acceptable forms of ID under the law. Therefore, Pennsylvania voters who attend school out-of-state are treated differently than those who attend school in the Commonwealth. Similarly, only student IDs that contain an expiration date qualify. So students who attend schools that include expiration dates on their IDs are treated differently than students who attend schools that do not include expiration dates.
- Voters who qualify to vote absentee (generally, those who will be out-of-town on business on election day) can satisfy the ID requirement simply by writing the last four digits of their social security number on their absentee ballot application. This means that absentee voters are not required to show a photo ID, while everyone else is. Therefore, petitioners contend, the law treats absentee voters differently than all other voters.
- Petitioners also note that the new law treats indigent voters differently in two ways. Indigent voters who do not have ID and cannot obtain one without paying a fee are permitted to cast a provisional ballot, but then must submit an affirmation certifying that they are indigent to election officials within 6 days in order for their ballot to count. So, unlike all other voters, indigent voters must take an extra step (submitting an affirmation) to vote, which, being indigent, they may have difficulty doing. At the same time, indigent voters who are able to comply with this two-step process are, unlike all other voters, not required to provide any form of ID. Petitioners also note that the law does not define “indigent,” leaving voters and election officials to guess which voters qualify.
- Voters whose religious beliefs prevent them from being photographed may obtain a non-photo driver’s license or ID card from PennDOT. To obtain such ID, though, the voter must complete a detailed questionnaire about his or her religion. All other voters, by contrast, are not required to discuss their religious beliefs in order to obtain the ID necessary to vote.
The Claims (Count III): Count III of the Petition for Review alleges that the Photo ID Law violates the section of the Pennsylvania Constitution that sets out the qualifications for voting. Specifically, all U.S. citizens, 18 years of age or older, who have resided in Pennsylvania for at least 90 days before an election and in their election district for at least 60 days before an election “shall be entitled to vote,” provided they comply with the Commonwealth’s registration laws. Petitioners allege that the Photo ID Law prohibits registered voters who are qualified to vote under the constitution, but who lack one of the approved forms of ID, from voting, thereby infringing upon their constitutionally-guaranteed right to vote.
No Compelling Interest: Petitioners note that voting is considered a “fundamental right.” Laws that impose restrictions on fundamental rights are invalid unless they pass what is referred to as the “strict scrutiny” test. To past the strict scrutiny test, the government must show that the law advances some compelling government interest and that no less restrictive means exist to accomplish the same goal. Petitioners argue that the Commonwealth cannot establish that the Photo ID Law serves a compelling interest because it cannot point to any evidence of voter fraud that would have been prevented by the law. They also point to laws from other states that permit voters who do not have an approved form of ID to vote by filling out at their polling place an affidavit certifying their identity. These laws from other states, the petitioners allege, are examples of less restrictive means of accomplishing the government’s purported goal.
Injunction: Petitioners have asked the Court to preliminarily enjoin enforcement of the law while it hears to case and to speed up the normal litigation schedule so that the matter will be resolved sufficiently in advance of the November general election.
I will monitor the case and post updates as it unfolds.