Pennsylvania Judge Upholds Controversial Voter ID Law

A victory for the proponents of Voter ID Laws in Pennsylvania.

After a trial that lasted nearly two week, a Pennsylvania state court Judge has upheld the Voter ID law passed last year by the state legislature which has been the subject of much controversy due to allegations that it would make it more difficult for some to vote:

HARRISBURG, Pa. — A tough new voter identification law championed by Republicans can take effect in Pennsylvania for November’s presidential election, a judge ruled Wednesday, despite a torrent of criticism that it will suppress votes among President Barack Obama’s supporters and make it harder for the elderly, disabled, poor and young adults to vote.

Commonwealth Court Judge Robert Simpson said he would not grant an injunction that would have halted the law, which requires each voter to show a valid photo ID. Opponents are expected to file an appeal within a day or two to the state Supreme Court as the Nov. 6 election looms.

“We’re not done, it’s not over,” said Witold J. Walczak, an American Civil Liberties Union lawyer who helped argue the case for the plaintiffs. “It’s why they make appeals courts.”

The Republican-penned law — which passed over the objections of Democrats — has ignited a furious debate over voting rights as Pennsylvania is poised to play a key role in deciding the presidential contest. Plaintiffs, including a 93-year-old woman who recalled marching with Martin Luther King Jr. in 1960, had asked Simpson to block the law from taking effect in this year’s election as part of a wider challenge to its constitutionality.

Republicans defend the law as necessary to protect the integrity of the election. But Democrats say the law will make it harder for people who lack ID for valid reasons to vote.

Opponents portray the law as a partisan scheme to help the Republican challenger, former Massachusetts Gov. Mitt Romney, beat Obama. Their passionate objections were inflamed in June when the state’s Republican House leader boasted to a Republican gathering that the new photo ID requirement “is going to allow Gov. Romney to win the state” in November.

Simpson, a Republican, didn’t rule on the full merits of the case, only whether to grant a preliminary injunction stopping it from taking effect.

In his 70-page opinion, Simpson said the plaintiffs “did an excellent job of ‘putting a face’ to those burdened by the voter ID requirement,” but he said he didn’t have the luxury of deciding the case based on sympathy. Rather, he said he believed that state officials and agencies were actively resolving problems with the law and that they would carry it out in a “nonpartisan, even-handed manner.”

The law, he said, is neutral, nondiscriminatory and applies uniformly to all voters. Speculation about the potential problems in issuing valid photo IDs or confusion on Election Day did not warrant “invalidation of all lawful applications” of it, he wrote.

Plus, more harm would result from halting the law, he said.

“This is because the process of implementation in general, and of public outreach and education in particular, is much harder to start, or restart, than it is to stop,” Simpson wrote.

At the state Supreme Court, votes by four justices would be needed to overturn Simpson’s ruling. The high court is currently split between three Republicans and three Democrats following the recent suspension of Justice Joan Orie Melvin, a Republican who is fighting criminal corruption charges.

The original Republican rationale for the law — to prevent election fraud — played little role in the court case. Government lawyers acknowledged that they are “not aware of any incidents of in person voter fraud.” Instead, they insisted that lawmakers properly exercised their latitude to make election-related laws.

Republican Gov. Tom Corbett signed the law in March after every single Democratic lawmaker voted against it.

At issue is the requirement that all Pennsylvania voters produce a valid photo ID before their ballot can be counted, a substantial change from the law it was designed to replace. That law required identification only for people voting in a polling place for the first time and it allowed nonphoto documents such as a utility bill or bank statement.

Some of the people who sued say they will be unable to vote because they lack the necessary documents, including a birth certificate, to get a state photo ID, the most widely available of the IDs that are valid under the new law.

Rick Hasen of Election Law Blog has read through the opinion and shares these thoughts:

In essence, the judge determined the following: the new voter i.d. law is likely to affect more than 1% but significantly less than the alleged 9% of Pennsylvania voters who plaintiffs alleged lacked the i.d.  He thought it credible that state officials could get i.d.s into the hands of most voters who wanted them on election day. Many of the plaintiffs brought into the case to “put a face” on the case will have other means of voting, such as through absentee balloting. For those relatively few voters who will have significant difficulties getting voter id, and who cannot vote with an absentee ballot., they may well be entitled to an order, as applied to these voters only, barring the use of the id law as unconstitutional. Under the Supreme Court’s Crawford case (which is not strictly applicable in this case, decided under state law, but which is persuasive authority to the court), invalidating the law in the entire state is too broad of a remedy; the focus should be on those voters facing special burdens.

In terms of the state’s interests, the judge did acknowledge that some Republican legislators may have passed the law for partisan reasons, but he did not impute that intent to most legislators. In any case, following Crawford, the judge said the fact that there were also neutral justifications for the law, such as preserving election integrity, which justified the law regardless of partisan motivations. The judge acknowledged it was undisputed that Pa. had no evidence of a problem with impersonation voter fraud, the only kind of fraud which a voter id law can prevent. But again, following Crawford, the judge said proof of an actual problem is not required. Finally, the judge said that if he had to apply “strict scrutiny” to the case (he concluded he did not), he might have reached a different decision.

The ACLU, which brought the case, has already said that they would be appealing the case to the Pennsylvania Supreme Court. However, as noted, that Court is currently down to six members and a 3-3 split would mean that Judge Simpson’s ruling would stand. It’s also worth noting that this is not a final ruling on the merits of the law, but a ruling on the Plaintiffs’ requires for a Preliminary Injunction to prevent the law from going into effect before the November election. At this point, it seems unlikely, though, that the case would be able to be briefed and argued before the State Supreme Court, and an opinion issued, in sufficient time before the election for state authorities to proceed accordingly, Indeed, in his opinion Judge Simpson noted that state authorities would need to begin taking steps to plan for the election this month, and that placing the law on hold would constitute an undue burden on the state if it turned out that the law was valid later down the line. So, for all practical purposes, it would appear that the law will be in effect for the November elections, with the question being whether that would play to the electoral benefit of one party or the other.

There is, however, one thing that could happen that could prevent the law from being enforced:

In late July, the Justice Department began a formal investigation into whether the state’s requirement violates civil rights laws, saying the state had 30 days to provide the requested documents.

Pennsylvania is the first state outside of the areas covered by Section 5 of the Civil Rights Act designed to protect minorities in states with historic racial discrimination in voting, to be investigated. To date the Justice Department has already filed suit against two states: South Carolina and Texas. Officials are awaiting a ruling by a panel of federal judges in Washington, D.C., on a Texas case argued in early July. Judges have scheduled a hearing on the South Carolina case later this summer.

In all likelihood, the Dept. of Justice was waiting for the ruling in the state case to be handed down before deciding how to proceed. Now that the injunction has been denied, their hand has essentially been forced and they will have to make their decision sooner rather than later, otherwise they’re risking the possibility that a Federal Court that they’ve waited too long due to the fact that the election is now less than three months away.  Also, it’s worth noting that, in the post linked above, Rick Hasan states that he expects the Supreme Court of Pennsylvania to uphold the law, most likely by a 3-3 vote, and does not believe that a Justice Dept. attempt to get an injunction before November would be successful. Of course, both of those events will have to await an actual decision.

In any case, though, this was the first legal challenge to these new versions of Voter ID laws that has been decided on by a Court, and it was a clear victory for the proponents of the law. Next up should be the decisions to the Federal challenges to the laws in Texas and South Carolina, although both those cases will likely be appealed regardless of what the outcome is and are unlikely to be fully resolved before Election Day. For now, though, Voter ID proponents can count this as a victory.

Here’s the opinion:

Applewhite et al v. Commonwealth of Pennsylvania et al

FILED UNDER: Campaign 2012, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    “We’re not done, it’s not over,” said Witold J. Walczak, an American Civil Liberties Union lawyer who helped argue the case for the plaintiffs. “It’s why they make appeals courts.”

    Exactly.

  2. David M says:

    It’s clearly a win for the GOP and a loss for the voting rights of American citizens. It’s sad those two are becoming mutually exclusive.

  3. Ben says:

    Anything to win, right Repubs?

  4. James Joyner says:

    I was on Fox Live about an hour ago talking about this with Power Play’s guest host, an attorney, and Fred Barnes. All of us agreed that the optics of this law play well—some 76% of Americans supported voter ID in a recent poll—but agree that it’s probably unconstitutional and that there’s virtually no voter fraud of the sort that would be prevented by showing an ID card. When you’ve lost Fred Barnes, I think you’ve jumped the shark.

  5. michael reynolds says:

    It’s a victory for the GOP, now attempting, yet again, to win without regard for democracy. The Clinton impeachment, the SCOTUS usurpation of Florida, and now the GOP vote-rigging efforts in OH, PA and FL.

    Anything to ensure the power of the plutocracy.

  6. Modulo Myself says:

    @David M:

    Overall, I don’t think it’s a win. It’s a lot like gay marriage, in that the people who hate government solutions for actual problems are magnetically drawn to solutions for problems that don’t exist but which confirm their pointless stereotypes.

    Gay marriage has ruined the Christian right. I think that in the end, sticking to the script of paranoid white suburbia c. 1973 will end up ruining the anti-poor fundamentalist wing.

  7. Fiona says:

    There was no problem but Republicans in the state legislature decided they needed an ID law anyway. The party leader didn’t even bother to lie about the reasoning behind it, but instead stated that this law should make it possible for Romney to win Pennsylvania come November. And now a judge has upheld this travesty. While the legal reasoning behind the decision might be sound, it’s pretty clear that the law was passed as an attempt to suppress Democratic votes.

  8. anjin-san says:

    but agree that it’s probably unconstitutional and that there’s virtually no voter fraud of the sort that would be prevented by showing an ID card.

    In other words, it’s a naked attempt to deny Americans their constitutional rights, but it’s a win for the GOP because they have snookered 76% of Americans.

    A proud day to be a Republican, eh James?

  9. Tsar Nicholas says:

    What’s funny about all this is that even in third world countries it’s simply understood that you can’t wink and nod at voter fraud and yet still pretend you’re a democracy. Yet if places like Iraq, for example, had local equivalents of the ACLU and the Democrat Party they’d be faced with lawsuits seeking injunctions to stop the authorities from having voters dip their thumbs into those ink wells and such. Seriously.

    In any case, it’ll be tougher for the Democrat machine in Philly to gin up nearly 100% turnout in those inner city precincts. Ultimately, though, I seriously doubt the election will come down to PA and even then I seriously doubt the margin will be close enough for this law really to matter. But principles do matter and unless we’re willing to remain a de facto banana republic these common sense laws will serve useful purposes.

  10. @James Joyner:

    I don’t see where the unconstitutional part comes in. The Supreme Court has already upheld similar laws out of Indiana, and lower level courts have upheld such laws in Michigan, Georgia, and other states.

    Absent evidence of discriminatory application, I don’t think there’s anything in the Constitution that says that a Voter ID law is per se unconstitutional

  11. Paul L. says:

    Upholds Controversial Voter ID Law

    Why is the Voter ID law Controversial? But the unconstitutional Illinois and Massachusetts wiretapping laws that outlaw filming Police in public setting where they have no expectation of privacy are not?

  12. David M says:

    @Tsar Nicholas:
    You don’t see a difference between dipping your finger in ink and requiring ID that effectively disenfranchises thousands of American citizens?

  13. Stan says:

    @David M: Are you sure that Tsar Nicholas regards them as Americans?

  14. Modulo Myself says:

    @Tsar Nicholas:

    Here’s a chart for the turnout in the 2008 election in Philly. As usual, you have the knowledge base of an alcoholic shut-in.

  15. mike says:

    I am not sure I understand – it is unconstitutional to prove that you are who you say your are before you can vote? I understand why dems don’t want it and Repubs do – but unconst?

  16. mattb says:

    Actually, as with Doug, I also don’t (sadly) see the unconstitutional part.

    That said, I also don’t buy into the entire “securing the vote” aspect of this — especially since individuals who would be turned away from voting due to lack of proper ID can still legally send in absentee ballots without any such ID check.

    Until that particular gap is fixed (and again, far more verifiable Voter Fraud takes place through absentee balloting) this is simply a crass political ploy to legally disenfranchise voters who tend to vote democratic.

  17. MBunge says:

    @mike: “it is unconstitutional to prove that you are who you say your are before you can vote?”

    It’s unconstitutional to infringe on someone’s right to vote by requiring them to pay some sort of fee or pass some sort of test or meet some other arbitrary standard. People have a RIGHT to vote. Without any evidence of significant voter fraud, what is the purpose of doing anything that makes it more difficult for people to exercise that right?

    Mike

  18. Rafer Janders says:

    @Doug Mataconis:

    Absent evidence of discriminatory application, I don’t think there’s anything in the Constitution that says that a Voter ID law is per se unconstitutional

    That’s a mighty big “absent”. The discriminatory application is the whole point — given that there’s virtually no proof of in-person voter fraud, it’s pretty obvious that the recent Republican push for voter ID laws is specifically designed to disenfranchise likely Democratic voters.

  19. Rafer,

    After a two week long trial, Judge Simpson found no evidence of discrimination

  20. mattb says:

    @MBunge:
    Unfortunately, the crafters of these laws have done a lot of make sure that they are not *legally* poll taxes. Not only have they applied to laws to all citizens, but they’ve included “free” alternatives.

    The scare quotes are there because those alternatives are “free” only under the best of circumstances.

    The issue that the plaintiffs need to prove is that there are no free options in practice.

    As to your second point, I totally agree that no one can reasonably prove that there is actually a reality-based reason for these rules.

  21. John Burgess says:

    @MBunge: See, that’s the thing. There’s no tax, there’s no test. There’s not even a fee.

    What’s more, someone without any ID can cast a provisional ballot. And if religious scruples preclude a photo ID, well, that’s okay, too.

  22. Rafer Janders says:

    @Doug Mataconis:

    After a two week long trial, Judge Simpson found no evidence of discrimination

    Oh well then. Case closed, I’d say! I guess a lower court trial judge’s opinion is the final word on constitutionality. Honestly, you wonder why we even bother to have appeals courts.

  23. wr says:

    @Doug Mataconis: And what about the new rules in Ohio that keep polls in rich, white, Republican areas open extra hours when polls in urban, Black and poor areas are forced to shut down? Do you also have no problem with that?

  24. Is it legal under Ohio law? If so, then who am I to tell Ohio how to run their elections?

  25. Barry says:

    @Doug Mataconis: The judge also ‘thought it credible that state officials could get i.d.s into the hands of most voters who wanted them on election day. ‘.

    So much for his honesty.

  26. Barry says:

    @Doug Mataconis: “Is it legal under Ohio law? If so, then who am I to tell Ohio how to run their elections? ”

    An honest American citizen with an interest in honest elections?

    Or am I mistaken?

  27. Barry says:

    @Doug Mataconis: “Is it legal under Ohio law? If so, then who am I to tell Ohio how to run their elections? ”

    Should I forward this to the email list dictators_of_the_world@evil.org? The phrase ‘it’s all legal under our laws’ is a nice and wide excuse.

    I also take this is a final resignation of any hint of nonpartisanship here, Doug. Clear partisan voter suppression is now an allowed method.

  28. al-Ameda says:

    I have been voting for 40 years, the last 20 years of which at my current resident polling place, not once in these 40 years have I ever been asked to provide identification. I’ve always been asked my name and address – the staff then checks the register, etc – and I’ve been handed a ballot.

    If I was determined to cheat, I sure as hell wouldnt do it in person at the polling place. Republicans are clearly acting to suppress the vote, and Judge Simpson somehow decided that explicitly saying that suppression was the intent had nothing to do with anything. Amazing.

  29. Barry,

    Since I don’t know the facts of the matter, or the relevant Ohio law on the subject, I am not going to issue a blanket condemnation based merely on facts that wr provided me

  30. Rafer Janders says:

    @Doug Mataconis:

    Is it legal under Ohio law? If so, then who am I to tell Ohio how to run their elections?

    Were segregated schools legal under Kansas law? If so, who were we to tell Kansas how to run their school system?

    Was preventing blacks and whites from marrying legal under Virginia law? If so, who were we to tell Virginia how to run their marriage licenses?

    Is….well, you get the idea.

  31. Rafer Janders says:

    @Doug Mataconis:

    Is it legal under Ohio law? If so, then who am I to tell Ohio how to run their elections?

    If your standard of commentary is “as long as it’s legal, I won’t have an opinion”, then why exactly do you have a blog that comments on matters of political import? As far as I can tell, a large part of what you do all day is tell people how you think they should run their own affairs.

  32. As I said in a comment above, since I am unfamiliar with the case, and with applicable Ohio law, I am not going to comment at all.

  33. Rafer Janders says:

    @Doug Mataconis:

    Since I don’t know the facts of the matter, or the relevant Ohio law on the subject,

    Oh, if only there were some way that you could learn the facts of the matter or the relevant Ohio law on the subject! But alas, lacking as we do any widely available research tools, I’m afraid that’s impossible!

    I am not going to issue a blanket condemnation based merely on facts that wr provided me

    Well, this new standard should certainly cut down the number of your posts per day to about…zero, I’d say.

  34. Rob in CT says:

    Is it legal under Ohio law? If so, then who am I to tell Ohio how to run their elections?

    This, right here, is disgusting.

    You didn’t say “hmm, that sounds fishy wr, so I’m not going to comment on it until I find out more. Sorry, but I’m not going to take your word on that.”

    No. You said it’s ok so long as Ohio law allows it. Even though, as wr presented it, it’s *clearly* discriminatory (in which case one would indeed hope it runs afoul of Ohio law, but sadly I don’t know we can assume that).

  35. It should be remembered that Pennsylvania is one of the states that still has partisan judicial elections. And oh look, Judge Simpson is up for reelection again this year, what a shock!

  36. SKI says:

    @Doug Mataconis: This is a pretty big about-face for you Doug, no? You told me a few weeks ago that you were pretty sure the law would be struck down and that was why you weren’t going to consider PA as a swing state.

  37. mike says:

    @MBunge: I don’t have an issue with providing a free ID if they don’t have one in order to be able to vote. I still don’t see the unconst. infringement on the right. What part of the const is violated? There is a const right to marriage but there are still requirements in many states such as getting a license, paying a fee, and in some getting a blood test. Are these rules unconst? They may be a hurdle but they are not unconst.

  38. Stonetools says:

    My guess is that after the Pennslyvania elections in November. It will become crystal clear that the law had a discriminatory effect. What would be the remedy then? New elections? Of course, the Republicans do have an ace in the hole- the court of final appeal is a SCOTUS similar to that which decided Bush v Gore.

  39. Clanton says:

    @anjin-san: How about the elections where people voted and it turns out that their residence is the local cemetery? How about the “vote early and often” people? I know that there may not be a problem in all places (it seems Chicago and Oakland have a history). I have a library id, id to get into the local pool, and a season pass id to the local theme park. This doesn’t bother me. Maybe they have these in effect to thwart problems. I also have to have an id (license) to drive. And let’s not make this some racial thing.

  40. David M says:

    @Clanton:
    Pennsylvania admitted they had no evidence of voter fraud and that this law was unlikely to prevent any voter fraud. Minorities are less likely to have the required ID. The end result of these laws is to help get Republicans elected by preventing group that were more likely to vote for Democrats from voting. If passing poll taxes laws that end up preventing minorities from voting sounds ok then…

  41. michael reynolds says:

    @Doug Mataconis:

    Is it legal under Ohio law? If so, then who am I to tell Ohio how to run their elections?

    State election laws and state courts are only valid until the Republican Supreme Court decides it has to step in and hand the election to a Republican.

  42. bill says:

    how, in this day and age, is presenting an id a ‘hardship” or “discriminatory” towards anyone?
    it’s not like someone living in the sticks has to ride a horse for 50 miles to get one , and they aren’t more expensive than a pack of smokes and beer. and under what instances would someone feel they shouldn’t go vote as they’ll have to identify themselves….when they already have to?

  43. wr says:

    @Doug Mataconis: “Is it legal under Ohio law? If so, then who am I to tell Ohio how to run their elections?”

    I don’t know. Maybe the same guy who continually told Occupy protestors how to live their lives. Who weighs in on lawsuits versus insurance companies where he doesn’t have the fact. Who posts multiple times a day on all sorts of issues in which you have no stake.

    In other words, a blogger.

  44. Figs says:

    @bill: If you’re a low-income person without a copy of your birth certificate, or the photo ID Pennsylvania requires to order a copy of your birth certificate, or a relative with photo ID that PA requires if you don’t have that photo ID, or the relevant proofs of residence that PA requires if you don’t have those relatives, or a roommate with a photo ID willing to go with you to the PennDOT office and be your proof of residence, then it could be difficult. Never mind considerations about whether you’re able to get time off of work in order to go to the PennDOT office to do all of this, or whether you’re able to afford not to work those hours even if you can get them off.

  45. mike says:

    @Figs: yes, and all of those factors probably apply to about 5 people.