Thursday, September 20, 2012
Guess what? It turns out that County Executive Rich Fitzgerald might be some sort of ninja.
I say that because of a press conference Fitzgerald held late this morning, in which he announced that the county would be issuing its own voter IDs for those who had trouble getting them from the state. Fitzgerald is apparently pulling some serious jujitsu here by using the law's own provisions against its suspected intent -- making it hard for Democratic constituencies to make it to the polls.
"Our job is to make [voting] easy," Fitzgerald told reporters. "Our job is to make voting accessible."
To obtain the county ID, you must already be a registered voter, and you must have some proof of identification. But the requirements are the same as existed statewide until VoterID requirements were established this year. They include: a non-photo ID issued by the state or federal government, a gun permit, a current utility bill or bank statement, or a paycheck or -- for all you 47 percenters out there -- government check.
The IDs will be available at the various branches of the Kane Regional Center nursing home system, or the campuses of the Community College of Allegheny County. (ADDED CLARIFICATION: The county has since clarified that while the IDs will be issued by the Kane system and CCAC, they won't necessarily be issued at those facilities. The plan, says spokeswoman Amie Downs, is to "get out into the community." Details will be forthcoming in the days ahead, she said.) While Fitzgerald said the IDs would be offered "within the week," exact times and locations have yet to be determined. But the IDs will be free, and here's the thing: You don't have to be a patient, or a student, to get the ID.
Fitzgerald is relying on a till-now little-noted provision of the Voter ID law. Act 18 sets out a number of IDs that may be legitimate for voting purposes. Along with driver's licenses and passports are ID "issued by ... An accredited Pennsylvania public or private institution of higher learning," as well as "a Pennsylvania care facility." This would allow universities to issue IDs to students, and long-term care facilities to issue them to patients.
But here's the funny part. While any ID must meet certain requirements under the law -- it must have a photo and expiration date, for example -- there's nothing in the law that says a college can only issue IDs to its own employees or students. Neither is there any restriction on the IDs issued by nursing homes. By contrast, while the law also allows local municipalities to issue IDs, it specifies that they can only be issued to "an employee of that municipality."
So it looks to me like Fitzgerald is trying to exploit a bit of a loophole. Under the law, Allegheny County can't issue it's own voter IDs to citizens -- even though the county actually conducts elections. But CCAC and Kane hospital are under no such restrictions.
Sounds crazy, doesn't it? But here's the thing: The state was warned. Back in August, attorneys from the ACLU and other voter-advocacy groups challenged the Voter ID law in Commonwealth Court. And during the opening arguments, attorneys trying to overturn the law pointed out this very problem:
Under the Act, I recall that there are other ways of satisfying the photo ID requirement. So my favorite is the nursing home requirement. So the nursing homes are entitled to issue their own ID. And when they issue them, they're not required to get a raised seal birth certificate. They're not required to have a Social Security number. They can issue them however they want. And the form that they can use as the identification, Your Honor, will show you that in this case, and I suspect that it will be quite surprising because it's something that my 11-year-old could mock up in about five minutes ...
There's another little kicker to the nursing home facility, and this really is the law. The law is the nursing home facility can issue those IDs to whomever they want. It's not limited to the residents. The legal requirement is that you have an ID issued by a nursing home, not that you be a resident.
The irony here is that the attorney making this argument, David Gersch, was citing the nursing home loophole as evidence that the entire voter ID law was "irrational." So now you've got Fitzgerald using that same loophole to mitigate the law's effect.
Will it work? When Fitzgerald was asked whether he'd run this idea by the state, he answered no. "We're following state law," he said flatly. It's hard to believe that the Republican authors of the law -- like state Rep. Daryl Metcalfe -- really intended to put nursing homes in a gatekeeper position when it comes to elections. But hey, Republicans were the ones in such a damn hurry to get the thing passed in the first place. So what are they going to do now? Seek a preliminary injunction to prevent county voters from getting IDs, while they simultaneously fight against a preliminary injunction seeking to put the whole law on hiatus? It'd be fun to hear that argument.
Besides which, this wasn't just some crackpot legal theory. During the voter ID trial,the Department of State's policy director, Rebecca Oyler, was asked "if a care facility wants to issue an ID to a person -- a stranger who comes in off the street, they can do that?" Her answer? "Theoretically, yes."