Two of the Democrats on the state Supreme Court dominated questioning during oral arguments Thursday in Philadelphia over the challenge to Pennsylvania’s new voter ID law.
Justice Seamus P. McCaffery questioned the motivation of the measure, which requires voters to present valid photo identification before going to the polls.
“Should we allow the legislature to, in what seems to me to be a political measure, to trample on the rights of our citizens?” McCaffery asked John Knorr III, chief deputy to the state’s attorney general.
Knorr suggested that the justices follow the U.S. Supreme Court’s 2008 holding in Crawford v. Marion County Election Board, a case involving a similar law in Indiana that was upheld on the grounds that the slight burden imposed by the voter ID law was outweighed by the state’s legitimate interest in discouraging voter fraud.
But Justice Debra M. Todd suggested that the level of deference that the court owes to the legislature may be lower than usual in light of the impending state and federal elections, now less than 10 weeks away.
She also noted that there has been no evidence of voter impersonation and read from the commonwealth’s stipulation, filed in the lower court, stating that there has been no investigation or prosecution and no knowledge of in-person voter fraud in Pennsylvania.
Floating a two-year timeframe for implementing the law, Todd asked Knorr, “What’s the rush?”
The timing and the substance of the statute are up to the legislature, he answered.
Act 18 was passed and signed into law in March and the ACLU of Pennsylvania filed its challenge two months later.
Defending the state’s timeline, Alfred Putnam of Drinker Biddle & Reath said, “In fairness, the statute was passed in March and wasn’t challenged until May. It wasn’t passed yesterday.”
Justice Thomas Saylor, a Republican, asked each Putnam and Knorr, in turn, about the section of Act 18 that stipulates that the Department of Transportation would provide IDs for voting to people who lack the proof of their identity required for standard IDs — that section, though, clashes with federal regulations for issuing secure IDs.
Of the ability to actually implement that part of the law, Saylor asked, “Will that ever happen?”
“I think I have to say no, based on what federal law requires,” Knorr said.
Saylor clarified, “You can’t comply with the letter of this law.”
“You can’t comply with the letter of that section,” Knorr said.
He encouraged the six justices to uphold the lower courts’ ruling, which denied a preliminary injunction.
Voting is a fundamental right, Knorr told the Supreme Court, but “not everything that affects that right is fundamental.”
It cannot exist without a regulatory framework and the legislature sets those parameters, he said.
“The bedrock here is, does this legislation bear some reasonable relationship” to a proper purpose, Knorr said, answering that it plainly does.
David Gersch, of the Washington, D.C., law firm Arnold & Porter, told the court that it should grant an injunction until there can be a full trial on the merits of the law, because it burdens voters.
There will never be a time when every voter will be able to comply with the law, said Justice J. Michael Eakin, a Republican.
Gersch had earlier told the court that there would be no need for a lawsuit if the state would provide every voter with a compliant ID.
“That will never happen,” Eakin said. “There will always be someone burdened by it.”
Reading from the Pennsylvania Constitution, Article 7, Section 1, which sets out the basic qualifications for voters in the state, Todd said of the voter ID law that “it does appear to be completely contrary to the language of our constitution.”
Knorr pointed out that, until now, voters identified themselves by signing in at their polling places. “This is not different in kind from that,” he said.
“But it’s a new burden,” Todd said.
“Sure, but it’s minimal,” Knorr answered, to laughter from the packed courtroom.
The ACLU is expecting a decision from the Supreme Court by the end of the month, said spokeswoman Sara Mullen.
Commonwealth Court Judge Robert Simpson ruled last month that the law doesn’t violate the state’s constitution on its face.
While Simpson found “disturbing” the often quoted statement by House Republican Majority Leader Mike Turzai that passage of the voter ID law “is going to allow [former Massachusetts] Governor [Mitt] Romney to win the state of Pennsylvania,” he said that it didn’t invalidate the legislature’s legitimate interest in preserving the public’s confidence in elections by discouraging in-person voter fraud through the use of photo IDs.
Also hearing the case were Justice Max Baer, a Democrat, and Chief Justice Ronald D. Castille, a Republican. Justice Joan Orie Melvin, also a Republican, could not sit for the case because she is under suspension pending criminal charges in the Allegheny County Court of Common Pleas.