Pennsylvania Law Professors Take Action on the Right to Vote

By Beth Lyon

Republican state congressional majorities around the country have passed laws requiring voters to present government-issued photo identification. Although voter identification statutes are not vote-suppressive in other contexts, for example in Europe, these are settings where national photo identification is the law. Lacking a national ID system, the United States is home to 21 million vote-eligible elderly, rural and low-income residents who would be disenfranchised by this type of law.

Of the 31 voter identification laws passed in the United States, Pennsylvania’s is widely recognized as being one of the most stringent. The Commonwealth Court of Pennsylvania’s August 15 opinion upholding the law, however, favorably distinguished it from other states’. The Pennsylvania Supreme Court set an expedited schedule to hear the appeal before the state got too far into the election cycle. A group of 12 law professors from four Pennsylvania law schools (Drexel, Penn State, Temple and Villanova), most of them SALT members, acted quickly, submitting an amicus brief to the Court arguing that “[t]he Commonwealth Court incorrectly sustained Pennsylvania’s Voter Identification Law…In upholding Act 18, the Commonwealth Court prominently relied on voter identification (“Voter ID”) statutes, municipal ordinances and case law from several jurisdictions that Amici respectfully submit are readily distinguishable and inapplicable, while disregarding far more instructive and relevant voter ID statutes and case law rejecting the constitutionality of Voter ID statutes from other jurisdictions.”

Brown Rudnick, an international, Boston-based law firm, represented the professors, who described themselves as “clinical law professors and one constitutional election law expert working in law schools in the state of Pennsylvania.” They asserted two interests in the case: “Each year Amici collectively supervise law students handling cases for indigent people in counties throughout Pennsylvania, in state and federal courts and administrative fora. Amici have direct experience with assisting people who struggle to secure government documentation. With an understanding of this central dynamic underlying all the election laws described in the instant brief, Amici are uniquely qualified to assist the Court in this case. Through scholarship, Amici also have contributed to the development of jurisprudence on various questions related to the pending matter and are uniquely qualified to assist the Court in the instant case….Amici are submitting this brief in their individual capacities and providing their institutional affiliations for identification purposes only.”

Several media outlets, including the New York Times, referred to the amicus brief. On September 18, the Pennsylvania Supreme Court vacated the Commonwealth Court’s August 15 order, and returned the case to the Commonwealth Court, ordering the Commonwealth Court to presently assess, on a developed record, the availability of photo IDs.  The Court mandated that the Commonwealth Court should enter a preliminary injunction if it finds that Act 18 would disenfranchise any voters.  On October 2, 2012, the lower court suspended implementation of the law for the present election cycle. The thorough survey presented in the amicus brief will be a resource in future debates as to new law’s fate in future election years.