By Joshua Bohn
Due to a preliminary injunction on Pennsylvania’s Voter ID Law arising from Applewhite et al. v. Commonwealth, the 2013 Pennsylvania off-year general election occurred without being subject to the requirements of the law. As of this date, the judge responsible for issuing this preliminary injunction is still in the process of deliberating. This does not mean, however, that questions about Pennsylvania’s new Voter ID Law have dropped out of the public eye. On the contrary, the government of Pennsylvania and its agencies have spent a significant amount of money advertising the Voter ID Law. Pennsylvania’s Department of State brought back a new variant of its “show it” TV commercials from the 2012 election for this off-year general election. Critics opposed the ad campaign for being a costly use of state funds, and for having a potential to confuse would-be voters—especially if the court refuses to lift the injunction. Governor Tom Corbett and his administration defended the ad campaign; a spokesman argued that the commercials contain useful information in the event that the Voter ID Law is upheld.
The Pennsylvania Department of State first launched its “show it” ad campaign in 2012, spending an estimated $5 million in federal funds allocated under the Help America Vote Act to do so. The Help America Vote Act, also known as HAVA, requires states to implement voter identification procedures, but also provides funding to states to meet the Act’s new standards.
Whether on TV, in print, or even on the sides of buses, the 2012 “show it” ads encouraged voters to present and “show” valid identification on election day. The original 2012 television commercials prefaced this request by asking viewers if they “care about this election,” “have an opinion,” and “want to make a difference.” Most importantly, however, the commercial’s narrator told viewers that they needed to present a valid photo ID to vote on election day in Pennsylvania. Critics allege this statement is contrary to Judge Robert Simpson’s partial injunction on the Voter ID Law, which covered the 2012 general election and prohibited poll workers from requiring voters to produce photo identification to vote. The print advertisements, however, did acknowledge (in very small print) that photo ID would not be required.
The 2013 ad campaign retained almost all of the 2012 ad campaign’s features, including the “show it” slogan. However, the narrator of the 2013 television commercials tells voters that they “will be asked but not required to show a photo ID.” The current preliminary injunction against the Voter ID Law allows poll workers to ask for photo identification, but does away with the previous requirement to inform voters that they will need to have identification to vote in future elections. Despite the commercial’s warnings, some voters in Philadelphia reported that they were never even asked to produce identification when voting. Other voters, such as some individuals in Bethlehem, Pennsylvania, were asked to produce identification. Furthermore, some Pennsylvania voters did express confusion over the ads, and what would be required of them at the polls. These voters included an individual from Wilkes-Barre who was unsure what would happen if she didn’t bring acceptable identification to the polls. Other voters simply erred on the side of caution, and proactively showed poll workers their driver’s licenses. It is very difficult to know how many voters, if any, decided against voting because of a lack of identification or confusion about ID requirements.
The Pennsylvania Department of State came forward to defend the ads as a valid exercise of the Voter ID Law’s education requirements. These educational requirements are in Section 206(a) (see page 11) of the Pennsylvania Election Code, and they require the Secretary of the Commonwealth to provide information to the public regarding voter identification requirements. These requirements are indeed still in force after Judge McGinley’s 2013 preliminary injunction (see footnote 4). The Pennsylvania Department of State also announced that another $1 million is earmarked for voter education on the law for the spring 2014 primary elections. Opponents of the law challenged the usage of state funds to educate voters on a law that is not in effect. Whereas the $5 million 2012 ad campaign used federal funds, this year’s ad campaign relied upon a $2 million voter education budget in state funds set aside for the 2013 and 2014 elections. Judge Simpson’s 2012 partial injunction kept the voter education portions of the Voter ID Law intact. Judge McGinley’s 2013 preliminary injunction did so as well, but with the proviso that poll workers need not inform voters that they would be required to show identification to vote in future elections.
The end result is that the government of Pennsylvania is still obligated by its election code to provide education to voters about a law that is currently in limbo. Should Judge McGinley issue a permanent injunction, this obligation might disappear. Judge McGinley is expected to come down with a decision by the end of the year. But regardless of the judge’s decision, both sides of the battle over Pennsylvania’s Voter ID Law in Applewhite et al. v. Commonwealth are prepared to appeal to the Supreme Court of Pennsylvania.