The battle over how far states can go in their voter identification requirements will face a high-noon showdown July 25 in the Commonwealth appellate court in Pennsylvania.
The court will hear the case of Applewhite v. Commonwealth of Pennsylvania. At issue is a new state law signed March 14 by Republican Gov. Tom Corbett. The law requires voters casting ballots in person to have a photo ID from a limited number of sources, such as a driver’s license or a government-issued employee ID.
What makes the Pennsylvania case special is that it relies on a volume of voter qualification evidence not present in the definitive 2008 Supreme Court ruling that upheld Indiana’s strict voter ID photo requirements by a 6-3 vote.
In the Indiana case, Justice John Paul Stevens, a traditional defender of civil rights, sided with the Supreme Court’s conservative majority because he found no evidence that Indiana’s photo-ID requirement imposed “excessively burdensome requirements.”
The carefully prepared Pennsylvania case suffers no such evidentiary lack. It has a series of plaintiffs, led by Viviette Applewhite, a 93-year-old black woman, who worked as a welder in World War II and later marched with Martin Luther King, Jr.
The difficulties, delays, and expenses that Ms. Applewhite and the other parties to her suit have experienced are documented in the lengthy brief submitted to the court. According to state election officials, 758,000 registered voters in Pennsylvania do not have a photo ID from the state's department of transportation.
Applewhite, who lacks a driver’s license but has consistently voted since the 1960s, has, for example, made three tries to get her birth certificate from Pennsylvania’s Division of Public Records. At the time the suit bearing her name was filed, she still did not have her birth certificate, despite paying the required fee.
If Applewhite v. Pennsylvania fails to set a limit – and a precedent – for how far a state can go in requiring voters to identify themselves, there’s no end in sight to the Republican drive for more voter ID laws, a highly successful campaign so far.
Republicans say these laws are necessary to combat voter fraud, but it’s hard to interpret them as anything other than an attempt to suppress voter turnout, especially among minorities and the poor, two groups most often lacking driver’s licenses. Since the beginning of 2011, eight states have passed voter photo ID laws, though some are not yet in effect. More such legislation is on its way.
In the case of Pennsylvania, Republicans have no doubt which party the new voter ID law will benefit. Their state House majority leader has already made headlines by telling a meeting of the Republican State Committee: “Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania, done.”
Critics of the Supreme Court’s ruling in the Indiana case point out how, in Indiana and in states across the country, there is very little evidence of personal voter fraud, and they are right. Indeed, the court’s majority opinion found “no evidence” of the type of fraud that the Indiana law was supposed to protect against.
When under President George W. Bush the Justice Department undertook a massive investigation of voter fraud, it ended up charging just 120 people (it convicted 86) in federal elections involving millions of voters.
In Florida, one of the leading states in enacting new voter ID requirements, the St. Petersburg Times (now the Tampa Bay Times) noted that voter fraud is rarer than shark attack. In the presidential election year of 2008, there were 28 shark attacks but only 16 voter-fraud cases, and in 2010, shark attacks outnumbered voter fraud 14 to 10.
In the 2008 Indiana case, the Supreme Court said the “risk” (if not the evidence) of voter fraud is real and that states have a legitimate interest in counting only votes that are real. But a recent study by the Pew Center on the States showed that the real problems in voter registration have their source in poor record keeping that would be unaffected by photo ID requirements. Across America more than 1.8 million dead people are currently listed as active voters.
What the new voter ID requirements do match, however, are the historic voter-suppression efforts that have targeted minorities rather than preserved the integrity of elections.
In his definitive study, “The Right to Vote: The Contested History of Democracy in the United States,” Duke University historian Alexander Keyssar makes a point of documenting how, beginning in the late 1890s, Mississippi led the way in disenfranchising blacks by using poll taxes, literacy tests, and elaborate registration systems to keep them from voting.
The lengths to which Mississippi and the South were willing to go to preserve the white vote were reflected in World War II, when 53 Southern members of Congress voted to oppose the Soldier Vote Act of 1942 because it exempted servicemen (including many blacks) from paying poll taxes.
Applewhite v. Pennsylvania holds out the promise of providing a way to stop the current trend in voter suppression, which falls heavily on an estimated 13 million to 22 million Americans who get by without a driver’s license or a passport, usually because they don’t own a car and can’t afford to fly.
The result is a compelling legal case. Viviette Applewhite calls to mind Rosa Parks and the role she played in the Montgomery bus boycott in 1955, when she refused to give up her seat to a white passenger.