Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Thursday, February 23
Keystone (State) Cops?
For all the criticism that the State of Ohio's election system has received in recent years, quite properly in my view, our neighbor to the east may actually be in even worse shape. Pennsylvania is fast becoming a model of how not to do election reform.

For well over three years, the states have been aware of the 2006 deadlines for deadlines under the Help America Vote Act of 2002. Every state is required to have at least one accessible machine at each polling place by this year. Also, states that took federal money for the replacement of punch-card and lever voting machines have to have that transition complete by this year. (Actually, the original deadlines were 2004, but most states got extensions until 2006.) Somehow, Pennsylvania still hasn't managed to get its act together, and a state court ruling earlier this month, discussed here (Kuznik v. Westmoreland County), has only made things worse.

Most recently, the Department of Justice sent this letter to state officials, informing them that a lawsuit against the state for HAVA noncompliance has been authorized. The letter further states that many counties still aren't in compliance with HAVA's accessibility mandate, and notes that the state-court ruling in Kuznik would effectively preclude compliance. As DOJ correctly states: "Where there is a conflict between federal and state law, the State is bound to resolve such conflict in favor of compliance with federal law." This is hornbook constitutional law, which every first-year law student should know. DOJ's letter also notes that Pennsylvania accepted almost $23 million federal money to get rid of punch cards and lever machines, but has thus failed to fulfill the conditions attached to that money. To the extent that this equipment isn't replaced by the May 16 primary, the state will be obligated to pay that money back.

Meanwhile, the Pennsylvania legislature has passed a bill (HB 1318) that would make the state's election system worse, not better. The bill would require voters to produce identification in order to vote, despite the absence of any evidence of voters attempting to be someone they're not. Governor Rendell has, quite wisely, said he'll veto the bill. The AP has this story, and Governor Rendell's letter is here. Governor Rendell's letter explains his reasons for the veto, noting the recent decision on Georgia's ID bill:
Some proponents of the bill claim that no one is actually being denied the right to vote – that voters are merely being asked to comply with a simple requirement meant to reduce the instances of voter fraud. They point to the various acceptable forms of identification that are listed in the bill as support for their defense that the provision is not an attempt to suppress voter turnout. Regardless of how long the list of acceptable forms of identification is, there are people who may not be in a position to produce any of them; people who live in a household where the lease and utility bills are in someone else’s name, people in nursing homes, and those who may have been temporarily displaced from their residences, to name just a few. As federal judge Harold Murphy very eloquently stated in a recent case discussing a similar bill enacted in Georgia, “For those citizens, the character and magnitude of their injury – the loss of the right to vote – is undeniably demoralizing and extreme, as those citizens are likely to have no other realistic or effective means of protecting their rights.”
Governor Rendell is right on target. So the bottom line is this: Instead of figuring out how to comply with federal mandates that would improve access to the ballot, the Pennsyvania legislature in its wisdom decided to enact a new barrier to voting to deal with a problem that doesn't exist.

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Moritz College of Law The Ohio State University