Will Penn. I.D. Law Actually Keep Voters Away?

Voter I.D. laws have been hotly debated this election season. Now, a Pennsylvania case is challenging that state's new Voter I.D. law. The Justice Department also announced that it will investigate whether the law is discriminatory. Host Michel Martin speaks with Columbia Law Professor Nathan Persily for more on the case.

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MICHEL MARTIN, HOST:

This is TELL ME MORE from NPR News. I'm Michel Martin. Coming up, it's the first full week of games at the London Olympics, but it's also the Muslim holy month of Ramadan. That's when observant Muslims refrain from eating or drinking from sunrise to sundown. We'll find out how the Muslim athletes at the Olympics are trying to balance the demands of competition at this elite level with the requirements of their faith.

We'll have that conversation in just a few minutes. But first, we wanted to turn again to what you might call one of the sub-themes of this election year. It's an argument over the mechanics of voting; specifically, whether rules governing who can vote and how are too loose or too strict.

For this conversation we're going to head to Pennsylvania, where, as in a number of other states, there are new rules requiring voters to have certain forms of I.D. in order to vote. And, as in these other states, there's new controversy around those rules. The story in Pennsylvania got some particular traction when Republican state lawmaker Mike Turzai said the new rules would help Governor Mitt Romney carry the state in this year's presidential election.

But those rules are being contested in a lawsuit spearheaded by the American Civil Liberties Union and the NAACP, and the U.S. Department of Justice is looking into whether Pennsylvania's law discriminates against minorities. Joining us to talk more about this is Nathan Persily. He is a professor of law and political science at the Columbia University School of Law.

He joins us now from our bureau in New York. Professor Persily, thanks so much for joining us.

NATHAN PERSILY: Thanks for having me.

MARTIN: Tell us specifically about Pennsylvania's law, if you would. What is it that they actually require?

PERSILY: They require that you have a government-issued photo I.D. and it's not just any photo I.D., but a driver's license, a passport, a state I.D. that's like a driver's license, a municipal I.D., a university I.D., or a nursing home I.D. And if you don't have one of those, you have to get one and you have to have a birth certificate or pay to get a birth certificate in order to get one of those.

MARTIN: Why was this law put into place? This is relatively new legislation, which is one of the reasons why I think people are contesting it. Did the proponents of this law argue that there was a particular reason why this was needed? That there was some evidence of fraud, there were some evidence of people voting who were not eligible to vote? What was the rationale put into place?

PERSILY: All of these photo I.D. laws are justified as preventing voter impersonation fraud, the idea that someone would come in to vote pretending to be someone else.

MARTIN: Was there ever any evidence presented of that? Any specific cases where that was demonstrated?

PERSILY: Not in Pennsylvania. I mean, it does happen every election that some people do vote in the name of someone else. A lot of times it's accidental. A lot of times it's poll worker error and sometimes it is, you know, people behaving badly. But we're talking about handfuls in states, not, you know, a mass movement to have hordes of people go from one polling place to the next trying to rig an election.

MARTIN: Well, the argument that people - so I'm going to ask you to take both sides of this. I mean, the argument that the proponents of this make is that whether or not it's been demonstrated that there is widespread fraud, that a voter I.D., a government-issued voter I.D., is a pretty simple thing to get. I mean, I have one. You probably have one.

I mean, the argument is made that it's very hard to do a number of the sort of tasks of modern life without one. So why is this so difficult? So what's the argument about?

PERSILY: Well, let me make that argument even stronger for the proponents, which is that virtually every country in the world has a photo I.D. requirement for voting. But unlike every other country in the world we don't have a national I.D. card in America. We rely on people to put forth their own efforts to go to, say, a DMV and get a driver's license, etc.

Now, they are right that most people have them, but in the litigation just yesterday, they argued that over 700,000 people in Pennsylvania who voted in 2008 don't have a photo I.D. Now, they could go and get - and for some of them it would be easy because they live not too far from a DMV and maybe navigating that bureaucracy won't be so difficult.

But for many others - they said one in four, in fact, of those 700,000 - don't have the required documents such as a birth certificate. So then they have to get a birth certificate, if they can, and pay for it and then use that birth certificate to get a photo I.D.

MARTIN: So what's the argument about that? You know, how does the state respond to that?

PERSILY: Well, they would say that the number is much lower because some of those people will have passports or university I.D.s or nursing home I.D.s, all of which are acceptable forms of I.D.s. Some of those people will be able to get free I.D.s between now and the election and others were probably not actually going to vote anyway because maybe they moved out of the state or there could be other reasons that they were erroneously on the rolls.

However, you're still, even with all those exceptions, still talking about hundreds of thousands of people who probably would not have the required documentation. It is not rocket science or brain surgery to do this, but the question is how burdensome should it be in order to vote? These are not literacy tests and they are not explicit poll taxes in the way that they were, say, 50 years ago in the South, but it is one more hindrance that would prevent some people from turning out to vote.

And more importantly, what you can expect is that on Election Day a lot of people will come to the polls expecting to be able to vote and then realize that they're going to have to vote a special ballot, a provisional ballot, which won't be counted in unless they present a photo I.D. later.

MARTIN: Nathan Presily is a professor of law and political science at Columbia Law School. We're talking about a challenge to Pennsylvania's new voter I.D. laws. Pennsylvania is one of a number of states who have instituted new requirements for voters to present a photo I.D., or government-issued photo I.D.s at the polls, and those laws are being challenged across the country.

Well, give an example, if you would, about a scenario that was presented in arguing against this law, about why this is considered unduly burdensome. Because the supporters of it keep saying, look, you need a voter I.D. You need some form of a photo I.D. to buy cough medicine. You need some form of a photo I.D. to get on an airplane. So why is this so hard?

PERSILY: Just to be clear, because this is a widespread example that's made - you don't need a photo I.D. to get on an airplane. You just are subject to enhanced security if you do and there are all kinds of other things where we use photo I.D.s for these processes but if you don't have one, then there are other ways in order to get through.

But if you just look at the named plaintiff in this case that's being presented in Pennsylvania, Viviette Applewhite, so this is a woman who walked with Martin Luther King in the 1960s, who is over 90 years old, and who doesn't have a copy of her birth certificate and she doesn't drive. Now, could she potentially get a birth certificate and go through the government machinery in order to get a photo I.D.? Probably.

It would take some effort and the question is, well, how much effort should a person have to go through and expend in order to get a photo I.D. in order to vote?

MARTIN: Well, what - forgive me. But one of the arguments, though, is that this is racially discriminatory and the arguments that some people make here is that, for example, to get a college I.D. you have to be in college. Well, there's a suggestion made that if you are not in college that you should not be able to vote.

The other argument that some people are making is that a number of people, particularly African-Americans of a certain age, were not born in hospitals. And it was not deemed important to record their births by any government entity. So that being the case, is that a credible argument?

PERSILY: That's what the DOJ is investigating. To what extent is there a disparate racial impact, to use the civil rights language here, from a law like this? And in some states we find that there is. I want to caution people, though, on assuming that there's going to be widespread disenfranchisement, that you're going to have hundreds of thousands of people who are not going to be able to vote.

A lot of what's going to happen here is going to depend on how it's enforced in the polling place and as I said before, the consequence of coming to vote without a photo I.D. is that you're supposed to be given a provisional ballot, a ballot that will be counted if you can sort of cure the illegal defect later. And so we shouldn't expect that there's going to be a huge impact on turnout but it could cause some real conflict at the polls between poll workers and voters.

And so it's true - it may be true, we'll see that it's going to have a racially discriminatory impact. When Indiana passed its photo I.D. law prior to the 2006 and 2008 election, they didn't find that it had a huge racially disparate impact. But a lot of that is because Obama was on the ballot. There was increased black turnout. And so it's hard to predict these things.

All that can be said right now - the analysis that one goes through is to look at the race of the people who are in the sort of non-photo I.D. population. They tend to be - minorities are overrepresented in that population, as are elderly voters, and people who don't have cars because driver's license is the most likely form of I.D. that people would bring to the polls.

MARTIN: Professor Persily, important to point out that Pennsylvania's law is being challenged at the state level. On what grounds?

PERSILY: Well, the state constitution in Pennsylvania has a voting rights provision so that the right to vote is protected explicitly in the Pennsylvania constitution. The reason they're bringing this in state court instead of federal court is because the U.S. Supreme Court, about five years ago, upheld a voter I.D. law in Indiana and they said that, under the Equal Protection Clause of the 14th Amendment in the U.S. Constitution, that voting I.D. laws - photo I.D. laws, in fact - could be constitutional.

And so, if you're a clever lawyer, you say, well, if I'm not likely to win under the federal Constitution, I'll go and argue under the state Constitution, thinking that maybe the state courts might be more favorable. And so that's what they're arguing, that this is a burden that breaks the state constitutional guarantee of the right to vote.

MARTIN: One of the reasons that this particular case stands out, and I think has come to the attention of people looking at this nationally, is that Pennsylvania is not one of the states that has to review its voting mechanisms in advance with the federal government, as a number of Southern states do, owing to a record of past discrimination.

And is that a point in their favor? Is their argument that, you know, we don't have a history of discrimination, therefore we shouldn't be subjected to this kind of scrutiny. Do you see what I'm saying?

PERSILY: Yes. Well, this makes it more likely that they're going to win in court. The Texas case, which is currently before the three judge special court in Washington, D.C., has a different posture because, in Texas, Texas has to prove that its voter I.D. law will not disadvantage minorities. So the burden is on them to show that there is no racially disparate impact, whereas here, the burden is on the plaintiffs - on the ACLU - to say it is, in fact, going to have a racially disparate impact.

And, while that legal difference might seem like standing angels on a head of a pin, it really can make all the difference in the world because if the state of Texas says, look, no one has proven that this has a racially disparate impact, that's not enough. And that looks like what's going to happen in Texas where the court is going to strike down that law.

In Pennsylvania, it's more difficult. The racial argument there is going to require, if you're making a constitutional argument, that they were intentionally trying to go after racial minorities and under section two of the Voting Rights Act it's still going to be difficult because you have to really know who's going to end up voting and not being able to vote on election day because of this.

MARTIN: Nathan Persily is professor law and political science at Columbia Law School and he was kind enough to join us from our bureau in New York.

Professor Persily, thanks so much for speaking with us.

PERSILY: Thanks for having me.

(SOUNDBITE OF MUSIC)

MARTIN: Coming up, the Olympic games are underway, but so is the month of Ramadan, where observant Muslims refrain from eating and drinking throughout the day. So what will these elite athletes do to reconcile the demands of their faith with their sport?

LEE WELLINGS: It's not just about not fasting, but it's also about deferring, delaying when they're fasting, making this up at a later date.

MARTIN: Ramadan and the Olympics. That's just ahead on TELL ME MORE from NPR News. I'm Michel Martin.

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