The Problem of Pollworker Discretion in Implementing PA’s Voter ID Law

One of the themes of The Voting Wars is that it is dangerous when we give people charged with running our election lots of discretion for interpreting rules for who can vote, etc., because inevitably subconscious biases and ideas can sneak in.  I talk about that a lot when it comes to my recounting of the Florida 2000 debacle.  It happened when county canvassing boards were deciding whether or not to count votes for Gore, Bush or neither. It happened when local election officials decided whether or not to use a faulty voter purge list prepared by the state by DBT.  (It also happened when the Republican Secretary of State, Katherine Harris, and the Democratic Attorney General, Bob Butterworth, gave conflicting interpretations of Florida statutory provisions governing the election protest period.)

I was reminded of that when I read this portion of the ACLU-PA’s recap of today’s testimony in the voter id trial, raising an issue wholly apart from the question of how many people don’t have the right i.d. or the right documents to get that i.d.:

A buzz-word of the day, “substantial conformity” is the term PA’s voter ID statue applies to the similarity between a voter’s name on his or her photo ID and the name that appears on state election rolls. The legislature included no definition nor criteria for this term, and Ms. Oyler testified that, while the Department of State may issue recommendations to the county boards of election, those recommendations would be non-binding. Ultimately, the question of substantial conformity, and the decision as to whether two names match – say, for example “James Smith” and “Jim Smith” – will be left to those individual boards of elections, and ultimately to the individual poll workers.

Leaving such a subjective determination in the hands of so many individuals raises significant questions. Substantive differences in name are not uncommon – particularly for recently-married women, who are likely to have obtained a new driver’s license, but highly unlikely to have updated the election rolls. Voters whose ID is rejected would have the opportunity to cast a provisional ballot, but as they will have only six days to order and obtain a corrected ID card, the odds that their vote will be counted are slim. In his testimony, Baretto remarked that any voter who has an ID with a name that is not an exact match with his or her name on the voting rolls is “at risk” come election day.
A similar problem confronts the voter ID law’s provision for “indigent” voters. According to the law, voters who are “indigent” are permitted to bypass ID requirements and instead complete a special form, which must be submitted to the county board of elections to accompany their provisional ballot. Once again, however, lawmakers failed to define “indigent,” and so it is left to the county boards of elections, and ultimately to the discretion of individual poll workers, to decide who is indigent and who is not – as well as to decide whether to provide the indigent voter form on-site at the polling place, or to require the voter to visit county election headquarters to obtain the form.
In short, under PA’s new laws you’re not only handing that poll worker your photo ID card – you’re also handing over unprecedented authority over whether or not you can vote. Try to smile.
 This alone raises some serious federal constitutional questions about vagueness, due process, and impermissible discretion, issues which were not addressed in the U.S. supreme Court’s Crawford case.
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