Taking a page out of the strict constructionists and Tea Party types, I’m going to channel the spirit of the Founding Fathers and say that they would argue that other than freedom of speech, there is no greater right in America than the right to vote. So why are so many quick to let the government set limits on that right?
This is what it has come to in our country today: The government can’t “restrict” the rights of large corporations to donate cash to political campaigns, but it can limit the ability of individuals to cast their valid votes in an election.
I’m not sure how so many “small government” types can square the above, but I’m sure the explanation is tortured enough it would have the Founding Fathers laughing the argument’s proponents out of the ale house.
Pennsylvania’s voter identification law was upheld at the preliminary injunction stage August 15 when Commonwealth Court Judge Robert E. Simpson said the law was constitutionally valid on its face and that it is valid under a standard of review that is more deferential to state legislators.
Simpson came to that conclusion even though the state’s lawyers conceded they couldn’t offer examples of in-person voter fraud and Pennsylvania House of Representatives Republican Majority Leader Mike Turzai said passage of the voter ID law “is going to allow [former Massachusetts] Governor [Mitt] Romney to win the state of Pennsylvania.”
I’m not going to bash Simpson on his reasoning. It follows a line of cases from other courts. But I think his approach is wrong and shows a lack of concern for protecting the rights of individuals. And it is way too deferential to the government when the evidence suggests he should be anything but that.
The tone on pages 10 and 11 is almost comical. Simpson said that although the challengers to the law had established that the voter ID law will prevent legitimate voters from casting their votes, they had not established “that disenfranchisement was immediate and inevitable.”
“I was convinced that efforts by the Department of State … the Department of Health, PennDOT, other commonwealth agencies and interested groups will fully educate the public, and that [those agencies will comply with the Election Code],” Simpson said. “Further, I was convinced that Act 18 will be implemented by commonwealth agencies in a nonpartisan, even-handed manner.”
It’s rare to see an expression of such unquestioning faith in government actors to limit the basic rights of individuals. It’s even more rare when you consider that we live in such a polarized partisan political environment.
Simpson’s belief that the law will be implemented in a “nonpartisan, even-handed manner” is misplaced, particularly when you consider Turzai’s comment, which strongly suggests to me that the House majority leader pushed through the voter ID law in bad faith.
According to statistics on the Department of State’s website, Democrats outnumber Republicans in Pennsylvania by almost 1 million voters. So how does Turzai think the voter ID law is going to help Romney win other than by suppressing legitimate votes?
Simpson did say he found Turzai’s statements “disturbing,” but dismissed them as having any impact on his view of the voter ID law because they “were made away from the chamber floor,” and because he refused to “infer” that other members of the state House shared Turzai’s views.
Anyone who has spent even a little bit of time around Harrisburg, where members generally march in lock-step with party leaders, would at best find Simpson’s view overly naive.
I would argue that any change or limit to how law-abiding citizens vote should be met with healthy skepticism. I would further argue that absent compelling evidence of voter fraud, any such law should be subject to a strict scrutiny approach.
Moreover, evidence of bad faith behind the legislation, such as Turzai’s comment, should trigger a shift in the burden of proof from the challengers to the state, which should be required to show that a change in the law is necessary and will not deprive individuals of their right to vote.
The case is now set to go before that wild card, the state Supreme Court. The court is evenly split along party lines. I’d bet the ranch that four of the votes are locks along party lines: Justice Michael Eakin, a Republican, in favor of the law, with the Democratic members of the bench, Justices Max Baer, Seamus P. McCaffery and Debra M. Todd against it.
The other two Republicans on the bench, Justice Thomas G. Saylor and Chief Justice Ronald D. Castille, are less predictable. Saylor, as evidenced by his frequent lone-wolf concurrences and dissents, marches to the beat of a different drummer.
And Castille, as I’ve written before, has never been predictable, absent his rulings in criminal cases.
What he has demonstrated over his career, though, is a healthy sympathy for the rights of the less powerful in civil litigation.
That sentiment was on display this past January when he was the deciding vote and author of the opinion in the redistricting case that threw out the Legislative Reapportionment Commission’s plan. Reading through Castille’s decision, he scoffs at the idea of showing the commission deference and analyzes the proposed plan skeptically.
Castille has also written passionately about the right of citizens to be heard at the voting booth.
In 2007, he wrote a scathing dissent in Pennsylvania Gaming Control Board v. City Council of Philadelphia. In that case, the high court ruled 5-2 to let the Pennsylvania Gaming Board prevent the City Council of Philadelphia from putting anti-casino questions on the ballot.
Castille called the board’s move to use litigation to prevent the ballot question an attempt at “extraordinary anti-democratic relief” and said that under the majority’s reasoning “the board may air any political or trivial grievance directly in this court.”
He also called out the majority for showing the board so much deference and said the court “needs to step back from its accommodationist approach to gaming appeals.”
“This is perverse: Bureaucracy has a ‘right’ to be heard; the people do not,” Castille said. “I would reverse the majority’s skewed priorities and let the people vote!”
Are these two cases directly on point? Of course not. Are they proof that Castille is going to want to shoot down the law? No.
But each exhibits a skepticism toward government action as it relates to people’s ability to vote or be heard at the ballot box. It’s an approach more judges, like Simpson, should take. It’s one that just might lead to the voter ID law withering under more careful scrutiny. •
Hank Grezlak is the editor-in-chief of The Legal Intelligencer. He may be contacted at 215-557-2486 or by email at firstname.lastname@example.org.