Pennsylvania’s voter ID law is unsalvageable, challengers to the law told the Commonwealth Court on the first day of trial in Harrisburg on Monday, emphasizing their preference for a finding from the court that the law, just over a year old now, is unconstitutional on its face.
The state, however, argued that “the sole issue relative to the constitutionality of Act 18 is whether it can be implemented in a way that registered voters who want ID to vote have liberal access to obtain one,” said Timothy Keating, of the state Attorney General’s Office.
In his 10-minute opening argument, Keating cited the U.S. Supreme Court’s 2007 holding in Crawford v. Marion County Election Board, telling the court that, there, the high court held that Indiana was within its rights to pass a law that would ensure that it only counted valid votes and would be able to restore the public’s perception that there is a secure voting process.
Those interests outweighed the slight burden put upon voters who would have to obtain proper ID, Keating said of the Crawford decision.
“That is, of course, exactly what is before this court,” he said.
States that have had their voter ID laws upheld, including Indiana, have included safety nets in their laws by extending the use of absentee ballots to accommodate voters who are physically unable to get to a photo ID distribution center, said Michael Rubin of Arnold & Porter, who is working with the plaintiffs. Pennsylvania’s law includes no such allowance. Rubin’s opening argument was roughly 50 minutes.
“The problems arise on the face of the statute,” he said.
The law transforms a right into a privilege at the “whim of the government,” Rubin said. “That’s not how constitutional rights work, your honor,” he said, adding that they are meant to be beyond the reach of government.
Commonwealth Court Judge Bernard McGinley is presiding over the case, which is scheduled for just shy of two weeks.
President Judge Dan Pellegrini asked McGinley to handle the case after Commonwealth Court Judge Robert E. Simpson asked to be reassigned following a pretrial conference last month, according to Art Heinz, of the Administrative Office of Pennsylvania Courts.
Simpson had handled the case since it was filed and presided over the closely watched trial a year ago.
Last summer’s trial, which moved swiftly to the state’s Supreme Court before being sent back to the Commonwealth Court, was surrounded by an amplified sense of urgency due to the presidential election in November 2012.
Simpson granted a temporary injunction staying implementation of the law about a month before the election.
In the spring of 2012, the Republican majority of the state’s legislature passed a law, often referred to as Act 18, requiring voters to present a valid photo ID from a short list of approved IDs before they would be allowed to cast a ballot.
Shortly after the law was passed, the American Civil Liberties Union filed a suit on behalf of voters who would be disenfranchised by the new requirement because they would be unable to get a compliant ID.
The narrow timeframe before a major election was a significant factor in Simpson’s decision to finally enjoin the law, which he had initially declined to do.
“We are confronted with an ambitious effort on the part of the General Assembly to bring the new identification procedure into effect within a relatively short timeframe and an implementation process which has by no means been seamless in light of the serious operational constraints faced by the executive branch. Given this state of affairs, we are not satisfied with a mere predictive judgment based primarily on the assurances of government officials,” the state Supreme Court said in its opinion last fall vacating Simpson’s first decision in the case.
This challenge is also expected to end up before the Pennsylvania Supreme Court after McGinley makes his ruling.