The key question in the case challenging Pennsylvania’s voter ID law is what level of scrutiny the court will apply, Commonwealth Court Judge Robert E. Simpson said at the start of hearings Wednesday.
Looking out from the bench to a full courtroom in Harrisburg, Simpson said the level of scrutiny could be quite robust or it could be deferential to the state legislature, which passed in March the controversial law requiring photo identification of registered voters.
“This is a very, very interesting challenge to Act 18,” Simpson said.
Several public interest groups, including the ACLU, the Advancement Project and the Public Interest Center of Philadelphia, are seeking an injunction from the effect of the law on behalf of plaintiffs who argue they will not be able to vote in November’s presidential election, despite their decades-long voting records, because they will not be able to produce the required paperwork in order to get an ID that accords with the law.
Pennsylvania’s Department of State just announced a program that would provide voter IDs to people who can produce a Social Security number and two proofs of address. The program would be available by the end of August and operate until the beginning of November, Patrick Cawley, a lawyer from the Attorney General’s Office, said during opening arguments Wednesday morning.
Allowing the promise of that program to bar an injunction would set a dangerous precedent, David Gersch argued. Gersch is from the Washington, D.C., law firm of Arnold & Porter, and is part of the legal team representing the plaintiffs.
There is a “line of cases that say you can’t avoid injunction by saying, in the future, you’ll make it better,” he said.
“This is not a promise of future conduct,” Cawley told the judge; it is a “product” that is currently being produced by a vendor and will be available in August.
“We are not here to re-engage in the legislative process,” he said.
Before opening statements began, Simpson said he intended to conclude the hearings by next Friday and planned to have a decision by the week of Aug. 13.
No matter what he decides, Simpson said, many people will be unhappy. “Take heart. I’m not the last level,” he said, explaining that the idea is to “tee this up” for the state’s Supreme Court.
“Think of me as the Supreme Court’s hearing officer,” he said. “I’m sort of a way station.”
Several of the plaintiffs testified Wednesday, including Viviette Applewhite, a 93-year-old woman who lives in the Germantown section of Philadelphia and is the first named plaintiff in the suit.
Her clean, white sunhat and rimless glasses barely peeked over the witness stand as she answered questions from the ACLU’s legal director, Witold “Vic” Walczak. A plucky witness, she frequently drew laughter from people at the hearing.
In the first presidential election in which she voted, Applewhite cast her ballot for Franklin Roosevelt, and she hasn’t missed an election since then, except for one year when her polling place moved and she could not find it.
Walczak asked the same questions of all the witnesses regarding their voting habits. They all testified they are long-time voters who plan to vote in this November’s election.
That is one significant difference from the 2007 opinion in the U.S. Circuit Court of Appeals for the Seventh Circuit that upheld a voter ID law in Indiana. The opinion was later affirmed by the U.S. Supreme Court in Crawford v. Marion County Election Board .
“There is not a single plaintiff who intends not to vote because of the new law — that is, who would vote were it not for the law,” Judge Richard Posner wrote in that opinion. “There are plaintiffs who have photo IDs and so are not affected by the law at all and plaintiffs who have no photo IDs but have not said they would vote if they did and so who also are, as far as we can tell, unaffected by the law. There thus are no plaintiffs whom the law will deter from voting. No doubt there are at least a few such people in Indiana, but the inability of the sponsors of this litigation to find any such person to join as a plaintiff suggests that the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.”
The ACLU of Pennsylvania is acutely aware of the Crawford opinion, Walczak said soon after filing the petition for injunction in May. He stressed that the current suit has six plaintiffs who will surely be disenfranchised in November, when the law will be enforced. The organization didn’t have to comb the state to find plaintiffs, Walczak said, explaining that there were a dozen more people who were initially going to be part of the suit but backed out when they decided they weren’t up to the stress of it.
The ACLU brought the claims in state court, Walczak said, rather than federal, because “we think that the Pennsylvania Constitution has more specific protections for voters.”
In any constitutional case, he said, the court is faced with a balancing act. Here, he said, the only thing weighing on the state’s side of the scale are “phantom claims of fraud,” while the ACLU is representing half a dozen citizens who will be barred from casting a ballot.
In his opening statement, Cawley told the court that the General Assembly isn’t required to prove there have been actual instances of voter fraud in order to pass a law that would prevent it. “In this day and age, nothing could be more rational” than asking people to bring photo IDs, which have become so prevalent in modern society, to the polls.