by Peter Fu
November 30, 2012
On October 24th, 2012, the Rutgers Association for Public Interest Law and Rutgers Democratic Law Students Association co-hosted Voter Identification, an exploration of Pennsylvania’s voter photo identification law (“voter ID law”) by state constitutional scholar Robert F. Williams.
Voter ID laws generally require voters to provide photo identification to vote in elections. Such is the case in Pennsylvania, where “all who appear to vote … [must] present to an election officer proof of identification.” In Voter Identification, Professor Williams proposes that all photo voter ID laws are inherently unfair to minority communities and an affront to basic principles of freedom.
Professor Williams begins his analysis by looking to Crawford v. Indiana, the first challenge to a state voter ID law in the United States. In Crawford, the Indiana Democratic Party challenged the Indiana voter photo ID law as violative of the 14th Amendment. The case ultimately reached the Supreme Court of the United States, where the Court determined that the manner in which the states conduct elections has to be reasonable and legitimate. As a result of this determination, the Court applied rational basis review and found that the federal Constitution did not prohibit Indiana’s law.
To Professor Williams, Crawford was a peculiar case on several levels. First, the claimants presented no evidence of voter hardship. Since the Indiana Democratic Party failed to show any injury, Williams believed that the case was doomed from the beginning. Second, Williams considered the media’s interpretation of Crawford to be highly misleading. This is because the Supreme Court merely found that the claimants lost the case, and did not rule that the law was unconstitutional. Therefore, while the Supreme Court found no violations of the Constitution, the Court also made no decision as to whether Indiana’s voter photo ID law violated Indiana state law. In what Williams has described as a “second look” or “shadow” effect, Williams argues that the Supreme Court “passed the buck” to the 50 states, giving the states the responsibility of determining whether voter ID laws violated their state constitutions.
The Pennsylvania Supreme Court developed a framework to determine whether a law that was not a violation of the federal Constitution was also a violation of state constitutional law in Edmunds v. Pennsylvania. This test looked to (1), the text of the Pennsylvania constitution; (2), Pennsylvania’s history; (3), cases from other jurisdictions; and (4), public policy. If a law violates the Pennsylvania constitution, the law is per se invalid. If a law’s constitutionality is ambiguous, then the law must be analyzed under points two, three, and four. Thus, given the facts and circumstances surrounding a dispute, a law that is not violative of the federal Constitution can nevertheless be violative of the Pennsylvania constitution.
In Applewhite v. Pennsylvania the court did not actually apply the Edmunds test to Pennsylvania’s voter ID law. Instead the court remanded the case to the Commonwealth Court where an injunction was issued enjoining the law's application during the November, 2012 election.
Williams argues that Applewhite failed the first element of the Edmunds test, as Pennsylvania’s constitution, unlike the U.S. Constitution, has language that expressly prohibits the state from interfering with suffrage. Furthermore, Williams outlined how the law was out of sync with Pennsylvania’s historical liberal construction of the right to vote, and that other state Supreme Courts in Missouri and Wisconsin had struck down similar voter photo ID laws. As such, Williams believed that Applewhite, which was pending final ruling at the time of Voter Identification, could not allow Pennsylvania’s voter ID law to stand.
Voter Identification used voter photo ID laws as a vehicle to explain the inner workings of U.S. Constitutional law. In the end, Williams emphasizes that the U.S. Constitution is merely a national minimum standard, allowing states the ability, and responsibility, to build and create laws to protect those that cannot protect themselves.