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by
Hans A. von Spakovsky

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August 7, 2012 - 2:04 pm

Like many states concerned over election integrity, Pennsylvania passed a common-sense election reform: voter ID. As a result, it has been targeted in a lawsuit by the ACLU and threatened with litigation by the politically driven Eric Holder Justice Department.

The ACLU lawsuit is unfounded, and the DOJ actions are an abuse of its legal authority as outlined in a previous post by PJ Media Legal Editor Christian Adams.

The Pennsylvania law is not even as restrictive as Indiana’s voter ID, which was upheld by the U.S. Supreme Court in 2008. It has several exemptions that make it impossible for anyone, including the ACLU, to rationally claim that it will prevent any eligible voter from voting (although that may not prevent a liberal judge from striking it down).

As a summary issued by Gov. Tom Corbett and Secretary of State Carol Aichele outlines, starting with the November 2012 election, the new law requires individuals voting in person to present a photo ID issued:

  • By the federal government or the Commonwealth of Pennsylvania, such as driver’s licenses, non-driver’s license IDs, passports, military IDs, and employee IDs;
  • By an accredited Pennsylvania public or private institution of higher learning; and
  • By a state care facility, including long-term care facilities, assisted living residences, and personal care home.

Pennsylvania has combined the ID requirement for in-person voting with a similar requirement for absentee ballots, which many have called the “tool of choice” for vote thieves. Absentee voters must provide either a photocopy of one of the acceptable IDs listed for in-person voting, or their driver’s license number on the absentee ballot application form. Or they can provide the last four digits of their Social Security number if they don’t have a driver’s license.

A Pennsylvania voter who has a religious objection to being photographed can use the “without-photo” ID issued by the state. Anyone who does not have a photo ID can receive one free from the state. If they have an expired Pennsylvania driver’s license or nondriver’s license ID, they can obtain a free photo ID for voting without any supporting documentation.

When voters show up at the polling place without an ID, they will be able to vote with a provisional ballot. That ballot will be counted if the voter provides the county board of election with a copy of acceptable ID within six days of the election by mail, fax, or e-mail.

Despite all this, the ACLU and others (including Attorney General Holder) are falsely claiming that the costs associated with obtaining the supporting documents needed for a photo ID such as a birth certificate make this requirement a poll tax. According to them, those costs will prevent eligible voters from going to the polls. The courts dismissed that argument when it was raised over voter ID laws in Arizona, Georgia and Indiana, and have held that such indirect costs are not a poll tax. But the claim about incidental costs cannot be creditably raised in Pennsylvania. The law specifically provides that the provisional ballot of an individual without a photo ID will be counted if he files an affirmation stating that he is indigent and is unable to obtain the ID without paying a fee such as for a birth certificate. There is simply no barrier to anyone obtaining the ID required to vote.

News reports have published claims being made by the ACLU that up to 1.6 million registered voters do not have an ID. The state did a comparison of its list of 8.2 million registered voters with its driver’s license list of 8.7 million licenses issued to those 18-years of age and older. It found 758,000 registered voters without a DMV ID.

But the state did not do any comparison of the registered voter list with any other databases that contain information on acceptable IDs under the Pennsylvania law, such as the U.S. State Department (passports) and the Department of Defense (military IDs), or all of the other agencies and departments that issue IDs acceptable under Pennsylvania law such as student IDs, government employee IDs, or ID issued by long-term care and assisted living facilities.

There was also no comparison with alien records at the Department of Homeland Security to determine how many noncitizens may be illegally registered to vote, an all-too-common problem in many states.

In fact, the experiences of other states with voter ID laws (Georgia, Indiana), as well as other surveys done of registered voters by reputable sources such as American University, suggest that the number of individuals without a photo ID is extremely small. American University’s study of three states found that number to be under one half of 1 percent.

Opponents dismiss comparisons between voting and the many other instances in modern life where you have to have a photo ID because they say you are not exercising a constitutional right when you are cashing a check, buying a beer, checking into a hotel, or boarding an airplane (although the civil rights movement was based on asserting a constitutional right to public accommodation such as hotels and public transportation).

In any event, you are exercising a constitutional right when you try to enter a government building such as the Department of Justice headquarters in Washington, D.C, to “petition the Government for a redress of grievances,” or try to enter a federal courthouse to access the judicial system authorized in Art. III of the Constitution.

Opponents of the Pennsylvania voter ID would likely agree with the Supreme Court’s holding in Loving v. Virginia (1967), which overturned the state’s law against interracial marriage because marriage is a basic civil right protected by the Constitution. Yet the ACLU has not sued Philadelphia over its requirement that anyone applying for a marriage license provide “a CURRENT, VALID PHOTO I.D.” In fact, Philadelphia requires a second form of ID that reflects an applicant’s Social Security number. So the ID requirements for a marriage license are stricter than Pennsylvania’s new voter ID requirement.

Much is also being made of Pennsylvania’s stipulation filed in the ACLU lawsuit that there have been “no investigations or prosecutions of in-person voter fraud.” As the Seventh Circuit Court of Appeals said when it upheld Indiana’s voter ID law, “without requiring a photo ID, there is little if any chance of preventing” this type of voter fraud. The “absence of prosecutions is explained by the endemic underenforcement” of voter fraud cases and “the extreme difficulty of apprehending a voter impersonator.”

But opponents are also making the mistake of assuming that voter ID can only prevent impersonation fraud. It can also deter voting by individuals registered in more than one state, voting by illegal aliens, and voting under false registrations. We certainly have seen evidence of some of those types of fraud in Pennsylvania. Even before the numerous problems caused by the submission of fraudulent voter registration forms by ACORN, the Justice Department prosecuted a massive voter fraud conspiracy in the 1970s in Philadelphia involving false voter registrations that were used to cast bogus votes.

In U.S. v. Cianciulli, 482 F.Supp. 585 (E.D. PA. 1979), the Justice Department prosecuted criminal conduct committed by “25 defendants and approximately 15 unindicted actors through … falsely registering to become eligible to vote in federal elections” by giving “false addresses and false periods of residence” in the first ward in Philadelphia.

The defendant who benefited from the bogus votes cast (and who provided the name for the reported decision) was Matthew Cianciulli, the state representative for the 183rd district. Five of the six defendants were found guilty on 19 counts and the remaining 17 defendants awaiting trials pleaded guilty. Many of the defendants “had never lived in, and in many cases had never set foot in, the residences listed on the registration forms” but fraudulently voted in elections.

Typical of the fraud was one couple, the Middletons, who “voted twice, once here and once in New Jersey, same election, registered twice, no problem.” Having to produce a Pennsylvania driver’s license with the actual address could have prevented the voter fraud committed in this case by false registrations and registrations in more than one state.

Similarly, Pennsylvania’s new law combines an in-person voter ID requirement with an absentee ballot voter ID requirement. Pennsylvania has had numerous absentee ballot fraud prosecutions that could have been deterred by this requirement, such as the prosecution and conviction in 1998 of former Cong. Austin Murphy for absentee ballot fraud in a nursing home.

In another case, U.S. v. Clapps, 732 F.2d 1148 (3rd Circuit 1984), the Democratic chairman of the 120th legislative district in Luzerne County was convicted, along with several other defendants and co-conspirators, of fraudulently obtaining absentee ballots in the names of registered voters (including residents of a rest home) and sending them to local election officials. Voters at the trial testified that “they never saw, marked, or mailed the ballots.”

Speaking at a campaign event for President Obama on June 6, 2012, Philadelphia Mayor Michael Nutter said that the state’s voter ID law was “a bad solution looking for a problem.” He seems to have forgotten the problems caused by the absentee ballot fraud in Philadelphia in a special election in 1993 that a federal judge found had changed the outcome of the election. With control of the state Senate at stake because the Senate was evenly divided between Democrats and Republicans, Democrat William Stinson won the race as a result of widespread fraud engaged in by Stinson campaign workers, who were prosecuted and convicted.

Thomas Perez, the assistant attorney for civil rights in the Justice Department, has also announced that DOJ has opened up an investigation into Pennsylvania’s voter ID law. This from the same Civil Rights Division that refused to enforce voter intimidation charges under the Voting Rights Act against the New Black Panther Party for their illegal, threatening behavior in Philadelphia in 2008.

We know from sworn testimony before the U.S. Commission on Civil Rights that the reason DOJ dismissed that case after the defendants defaulted was because of an Obama administration policy against race-neutral enforcement of the VRA. It does not believe in prosecuting minority defendants, no matter how egregious their behavior.

A federal district court reported that Perez may have provided inaccurate (and potentially perjurious) testimony when he claimed that no political appointees at DOJ were involved in the decision to dismiss the Philadelphia case. Internal DOJ documents “cast doubt on the accuracy” of Perez’s sworn testimony.

Perez sent a letter to Secretary of State Carol Aichele on July 23 requesting “information concerning Pennsylvania’s compliance with Section 2 of the Voting Rights Act,” which prohibits racial discrimination in the voting context. Perez’s letter makes an unprecedented and abusive request for extensive and voluminous documentation to which DOJ is not entitled. Perez cited the authority of 42 U.S.C. §1974 for his request. Section 1974 requires states to preserve all of their voter registration or other records “requisite to voting” for 22 months after a federal election. The attorney general can demand access to such records in writing.

But the Perez letter goes far beyond requesting documents related to last federal election held in Pennsylvania. Perez asks for numerous documents that are not the type of election records contemplated by Section 1974, such as the complete state DMV database on driver’s licenses; all documents and records supporting statements made in a press release from the governor’s office about the voter ID law; all “studies, analyses, or other activities” that give state officials any information on the number of people in Pennsylvania who may not have an ID; etc.

This is not a request for voter registration and election records related to a past election. It is a thinly disguised discovery request that would normally only be served on Pennsylvania after DOJ had filed a lawsuit against the state. Such a lawsuit could only be filed under DOJ internal rules after DOJ had conducted an in-depth investigation to determine if a lawsuit was even warranted.

No such investigation has occurred here, and there is no evidence whatsoever that Pennsylvania has violated Section Two of the Voting Rights Act. This is a shakedown in which Perez is trying to scare and intimidate Pennsylvania into providing it with information and documentation that DOJ can then try to use to formulate a frivolous lawsuit against the state.

As Christian Adams pointed out, it is also very telling that the July 23 letter from Perez to Pennsylvania directs the state to send the documents that have been demanded to Daniel Freeman. As he and I outlined in a prior story about the illegal political hires into the career ranks of the Obama Civil Rights Division, Freeman came to the Voting Section from the ACLU, which has led the fight against voter ID laws all over the country and filed the lawsuit against Pennsylvania. When he worked at the ACLU, he attacked our national security policies and supported the rights of terrorist detainees at Guantanamo Bay during an internship at Human Rights First.

A liberal activist local judge may very well issue an injunction against the Pennsylvania law. Not because there is any real evidence that any citizens of the state will be prevented from voting, but because ideologically, being against voter ID is the politically correct position to take. Upholding it will subject the judge to withering criticism from misinformed members of the press and false claims of suppression and racism from civil rights groups who seem to be more concerned with protecting vote-stealers than protecting their constituents from being victimized by unscrupulous election practices.

But the people of Pennsylvania know that voter ID for both in-person and absentee voting is just a common-sense election reform that is needed to help ensure the integrity of the election process. And they know it will not prevent any legitimate, eligible voters from casting their ballots in the upcoming presidential election.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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