The trial judge’s decision on remand halts the full imposition of the requirement for this upcoming election. But Simpson leaves in place the right of poll workers to ask voters for a photo ID. In a bizarre parsing of the statute and of the instructions issued by the Supreme Court, the trial judge stubbornly refuses to halt the implementation of the entire law, reasoning that asking for a photo identification — but not requiring one — will not result in voter disenfranchisement.
Simpson’s interpretation seems to either deliberately or recklessly ignore the obvious. Requesting a form of identification that cannot be required places an unnecessary and potentially disruptive obstacle in the way of voters — an obstacle that may result in precisely the voter disenfranchisement the Supreme Court warned against.
How will Pennsylvania voters, who by now have heard that the law cannot be imposed, react when poll workers nevertheless ask them to present a government-issued photo ID? It will be up to voting-rights advocates to educate the public about the effect of this ruling and ensure that the polls are staffed by trained individuals who understand the scope of Simpson’s ruling.
But it may well be that the Republicans have overplayed their hand in adopting these retro voter-suppression laws. The notion that these laws are designed to address voter fraud has been rather conclusively debunked. No evidence of measurable voter fraud has been adduced in any of the cases. Indeed, Republicans have themselves more recently been caught in a voter-fraud scandal.
Moreover, the brazen effort to shrink the electorate most likely to support Democratic candidates in this year’s elections has served to stimulate a voting public that had less energy and incentive than four years ago to turn out in large numbers on Election Day. Just the specter of forcing 93-year-old Viviette Applewhite — the plaintiff in the Pennsylvania case who has voted in every election since John F. Kennedy was on the ballot — to go to a government office to obtain a state-issued identification card may be enough to mobilize outraged voters. (It’s worth noting that Applewhite says she eventually went to the DMV to get her ID, armed with a letter from the mayor of Philadelphia and the first lady of the United States.)
But Election Day outrage won’t be enough. After Nov. 6, the Pennsylvania law will remain in place for future elections, and Simpson seems likely to take even greater license with his very cramped interpretation of the Pennsylvania Supreme Court decision after the spotlight of the election is off this case. Voting-rights advocates will need to sustain their pushback against measures designed to restrict access to the ballot.
Sherrilyn A. Ifill is a professor of law at the University of Maryland Francis King Carey School of Law and a civil rights lawyer.