Wednesday, August 15, 2012

Republican Judge Upholds Pennsylvania Voter ID Law

A few hours ago, Judge Robert Simpson (above) of the Pennsylvania Commonwealth Court ruled against the people challenging the state's latest voter ID law in the case Applewhite et al. v. The Commonwealth of Pennsylvania.  Upon first hearing this news, I quickly perused Judge Simpson's bio at the court website to see what he's about.  Nothing really stood out to me so I ran a quick Google search and discovered that Judge Simpson is a Republican.  Interesting.  Normally this wouldn't matter but Pennsylvania is one of several states where judges are actually elected as opposed to being appointed by a Governor.  This means that Judge Simpson could have very well decided a case today which may benefit him at the ballot box among Republican voters who believe that voter ID laws are necessary to crack down on voter fraud (absent any evidence that such fraud exists notwithstanding). 

After reading Judge Simpson's opinion (available HERE) a few things stood out to me legally:



1. The tone of the "fact" section is written in a persuasive voice instead of a neutral voice.

When courts recite the facts of the case in their rulings, they typically do so in a neutral voice.  And if they present a fact from a certain perspective, it is common practice for the court to indicate this to the reader by including language like "according to the defendant" or "the plaintiff alleges."  Here, however, Judge Simpson clearly takes a position against the challengers and presents the facts in favor or the state's voter ID law.   For example, at the top of page 5 Judge Simpson writes:
"[The voter ID law], which became effective March 14, 2012, made certain minor changes to the provisions of the Pennsylvania Election Code (Election Code).  However, it left the vast majority of the Election Code's provisions unaltered." 
When I first read this I thought surely I must have missed the part immediately before or immediately after this paragraph where Judge Simpson said "according to the State" but much to my dismay such words do not exist.  "Minor" changes?  Minor according to whom?  And what's with the "vast majority" talk?  I would expect to see these terms in the State's legal brief (indeed, they may very well have come directly from the State's brief) or even the legal discussion section of the court's opinion but not in the fact/background section.

2. Both the Judge and the new law itself miss the point that voting is a Right not a Privilege.

According to this new law, in order to vote in Pennsylvania you have to have a photo ID issued by (i) the U.S. Government (including military ID); (ii) the State of Pennsylvania; (iii) a city government within Pennsylvania; (iv) a public or private college/university within Pennsylvania only (out-of-state student ID's not accepted); or (v) a Pennsylvania care facility.  In addition, your photo ID must not be expired past 12 months.  If you have a religious objection to being photographed, the new law also allows a non-photo ID to be used at the ballot box if the ID is issued by the Pennsylvania Department of Transportation.  If you are too poor to purchase either a photo ID or a non-photo ID, then you get a provisional ballot which might be counted if you can you can submit a notarized affidavit to the state within 6 days after the election verifying the fact that you are poor.  If you happen to be out-of-state and wish to use an absentee ballot, then not only do you need to include a copy of your photo ID but then the County Board must verify your ID and that everything matches or else your absentee ballot will not be counted.

The Judge downplays all of these new changes as "minor," noting that Pennsylvanians have always had to identify themselves at the ballot box in some form or fashion, be it by showing a utility bill or a copy of a lease or a library card, etc. All of that misses the point that this new law is treating voting like a privilege that must be checked, re-checked, and then checked again instead of a Constitutionally protected right such as the right to an attorney if you're ever changed with a crime, the right to practice your own religion or the right to free speech.   No state in America requires ID to exercise any of those rights, and for good reason - because they are fundamental rights enshrined in our Constitution.  Voting is no different.

3. The Judge conveniently hides behind the "Facial" Challenge vs. "As Applied" Challenge argument.

When you are trying to claim that a state law is unconstitutional, there are primarily 2 ways you can attack it.  First, you can argue that the law itself, as it is written, is unconstitutional.  This is called a "Facial" challenge because it claims that the law is unconstitutional on its face.  Second, you can argue that although the text of the law is cool, the law is being applied to the people in an unconstitutional way.  This is called an "as applied" challenge because it claims that the law, although constitutional on its face, is being "applied" to the people in an unconstitutional manner by the state.  Now on this second method there's a catch - in order to bring an "as applied" challenge against a state law, that law has to first be applied to the people.

In this case, Pennsylvania's voter ID law obviously has not yet effected people at the voting booth because we haven't had election day yet.  So Judge Simpson conveniently characterized the challengers' attack on the Voter ID law as an "as applied" challenge and then ruled that the challengers can't do anything about it until after election day on November 6.  The beauty of this ruling, of course, is that by the time any people who were actually affected by this law bring an "as applied" challenge against it in court the election will be over and Pennsylvania's 20 electoral votes will have been cast for the new President of the United States.  Nice dodge there, Simpson.  Well played.

4. What Voter Fraud?  Where?

Perhaps the most striking thing about this entire case is that the Judge feels that all of the above-referenced restrictions on the right to vote are necessary to prevent voter fraud yet he concedes that no voter fraud has taken place in Pennsylvania.  Indeed, the State was unable to produce a single instance of voter fraud in this case.  Yet despite this fact, the judge wrote:

"I preliminarily conclude [the Voter ID law] has a plainly legitimate sweep.  As discussed below, considering the statute's broad application to all Pennsylvania voters, it imposes only a limited burden on voters' rights, and the burden does not outweigh the statute's plainly legitimate sweep."
Then later on page 60 he justifies his ruling with the following:
"[The State's] efforts to minimize [voter fraud] were not convincing.  Nevertheless, in Crawford the United States Supreme Court upheld a nearly identical Indiana voter ID law despite the absence of any evidence of in-person voter fraud occurring in that state.  Accordingly, I conclude that the absence of proof of in-person voter fraud in Pennsylvania is not by itself dispositive."
In other words, Pennsylvania can enact a law that will, by the Judge's own admission, infringe on a fundamental right by disenfranchising thousands if not millions of registered voters in order to prevent X, even though we have no proof whatsoever that X even exists.  Brilliant.

While we're at it, why don't we pass a state law that bans all religious worship because Martians might land on Earth and attack us for performing strange religious ceremonies which they don't understand.  What do you mean I need proof that Martians exist?  Since when do I need proof that a problem exists in order to pass a state law that infringes on your rights?  See eg. Applewhite et al. v. The Commonwealth of Pennsylvania.

5. Denial of Partisan Motivation.

The Judge had this to say about the political motivations for the Voter ID law:
I also considered allegations of partisan motivation for [the Voter ID law] in general, and the disturbing, tendentious statements by House Majority Leader Michael Turzai to a Republican party gathering in particular.  Ultimately, however, I determined that this evidence did not invalidate the interests supporting [the Voter ID law], for factual and legal reasons.  Factually, I declined to infer that other members of the General Assembly shared the boastful views of Representative Turzai without proof that other members were present at the time the statements were made.  Also, the statements were made away from the chamber floor. 
Right, because the rest of the General Assembly doesn't have access to youtube.

6. Appeal Does Not Look Good for the Home Team.

Lastly, it should be noted that this case is, of course, being appealed to the Pennsylvania Supreme Court.  However, the Pennsylvania Supreme Court, which normally has 7 members, only has 6 members because one of the Justices is currently under investigation.  That leaves 6 Justices split evenly down ideological lines: 3 Democrats, 3 Republicans.  If the Justices come to a tie then Judge Simpson's ruling will be allowed to stand.

QUESTIONS:
1. Your take on the ruling?
2. Was Judge Simpson motivated by politics here?
3. Assuming for the purposes of this question that voter fraud exists, is it a good idea to require voters to show photo ID and, in the absence of that photo ID, turn them away from the polls?
4. Same question but now assume that voter fraud does not exist.
5. How would you have ruled in this case?

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