The Elephant In The PA Voter ID Trial Court Opinion

[Update: Despite still lacking adequate documentation, Viviette Applewhite was granted her Voter ID. So that's the solution for the 400,000+ Pennsylvanians without adequate documentation to obtain a photo ID: they need only convince a team of lawyers to represent them for free, file a high-profile case that attracts national media attention, litigate it through trial, and then the Commonwealth will say that the documentary requirements it imposed didn't matter anyway. If Applewhite can get Voter ID without having the adequate documents, what's the point of the law in the first place? Are there still people out there that think this law has more to do with voter fraud than with erecting barriers to make it harder for the elderly, students, and the impoverished to vote?]

Yesterday Judge Robert “Robin” Simpson of the Pennsylvania Commonwealth Court released his opinion on the lawsuit challenging PA’s new Voter ID law. It was, to put it mildly, a disappointment: the request for an injunction (and thus restoration of the old requirements) was denied.

I’ve written about the abysmal Voter ID law — passed to suppress votes by senior citizens, college students, and the impoverished — twice before, once in terms of an embarrassing attempt to intervene in it by right-wing activists, another in terms of Representative Turzai’s amazing admission that the purpose of the law was to hand victory to Romney in November. If you don’t know the sinister purpose behind the law, read those posts.

As Ari Berman covered in depth, the trial over the injunction revealed the law was even worse than we thought. Potentially 1 million or more registered voters were affected by the new law, of whom nearly 400,000 don’t have the adequate underlying documentation to obtain photo identification that passes under the law. In addition to voters not knowing anything about the new law, it turned out that the Commonwealth didn’t know much about the law either, and was woefully unprepared to actually implement it. As but one example, the Commonwealth has only allocated funds for 75,000 voter ID cards, even though 10 times or more people may need them.

To the extent anyone had any genuine doubt, the evidence at trial reinforced that there was no need to rush this law into effect in the last few months before the election, because there is no evidence of in-person voter fraud in Pennsylvania, nor even a clear hypothetical example of how it could be accomplished beyond a handful of votes without the help of dozens or hundreds of Judges of Elections (at which point the Voter ID law is worthless, too). Thus, there’s obviously plenty of harm in letting the new law be applied and no harm in just restoring the status quo in following the voting rules that have been used in Pennsylvania for as long as anyone can remember, and thus ample grounds for an injunction this election while the larger constitutional questions are sorted out.

But that’s not how Judge Simpson saw it. 

Lest anyone think I have a political bone to pick, Judge Simpson was on my 2011 Pennsylvania Judicial Election Guide, where I noted that he was “a stickler for clean, clear rules,” which he appeared to apply to everyone equally, from a late-filed unemployment appeal to a late-filed MCARE malpractice coverage request (he thought both should lose). Seeing no reason to knock him out of office for just doing his job in good faith, I included him in my general recommendation that all voters can safely vote “yes” for retention of Commonwealth Court judges.

As Adam Bonin summarized, Judge Simpson’s decision to deny an injunction prohibiting enforcement of the law largely rests on three conclusions:

  1. He rejected “strict scrutiny” as standard of review for infringement of a fundamental right, and instead held the court was simply looking for a “gross abuse” of powers by the Commonwealth.
  2. Because it was a “facial challenge” to the constitutionality of the law, rather than an “as-applied” challenge, most of the examples of how the law could disenfranchise voters were irrelevant.
  3. Voters burdened by the law had remedies in the form of absentee ballots, provisional ballots, and judicial relief.

Summed up in a single sentence of Judge Simpson’s own words, “Petitioners did not establish, however, that disenfranchisement was immediate or inevitable,” and “based on the availability of absentee voting, provisional ballots, and opportunities for judicial relief for those with special hardships, I am not convinced any of the individual Petitioners or other witnesses will not have their votes counted in the general election.

I don’t think it’s worth going into the deeper aspects of Judge Simpson’s decision — I certainly think strict scrutiny was appropriate, and Judge Simpson’s cramped view of “facial challenge” would render much of constitutional litigation impossible — because there’s a problem right on the face of it, the problem at the core of the whole lawsuit, the elephant in the room: how are people like Viviette Applewhite supposed to vote?

Viviette Applewhite, you might recall, is the lead plaintiff in the case. She’s 93-years-old, worked as a welder in World War II, marched with Martin Luther King, has 18 grandchildren, great-grandchildren, and great-great grandchildren, and, for no good reason, has been denied photo identification by the Commonwealth of Pennsylvania several times. She is one of the main plaintiffs, who are representative of hundreds of thousands more, who simply cannot obtain adequate photo identification under the law. It’s not just a matter of expense or of burden, which Judge Simpson brushed aside, but a matter of sheer impossibility.

What’s she supposed to do? She can’t vote in person and can’t file an absentee ballot because she doesn’t have the photo identification for that, either. Under Judge Simpson’s reasoning, she’s supposed to show up and cast a provisional ballot — but then what? The purpose of a provisional ballot is to allow the voter time to obtain their photo ID and present it to the county board of elections, but she can’t do that.

Judge Simpson has no answer, other than:

For example, there is judicial review of a county board of elections’ decision not to count a provisional ballot. 25 P.S. §3050(a.4)(4)(v). This procedure presents an opportunity for judicial intervention to avoid unconstitutional applications of Act 18 to individuals.

Wait a minute: that’s like saying a wrongfully arrested and prosecuted person has “an opportunity for judicial intervention” merely because they get a trial where they might or might not be convicted.

The law merely “presents an opportunity for judicial intervention” after the fact, after disenfranchisement has happened? What happened to Judge Simpson’s holding that the plaintiffs failed to prove “disenfranchisement was immediate or inevitable?” Viviette Applewhite has quite plainly been disenfranchised, but that apparently isn’t enough to justify relief for her or for anyone like her because she has “an opportunity” to file a lawsuit after the election — but to what end? To have a court affirm she still can’t get photo ID and thus affirm the decision to disenfranchise her?

What about everyone else who can’t get proper ID because they don’t have birth certificates (like Ronald Reagan didn’t until he was in his 30s) or because the Commonwealth or some other state has bungled their paperwork? When I was in high school, my brother was admitted to, enrolled in, and then expelled for non-payment from a state university he never applied to in the first place, a school he repeatedly told to get its act together and remove him from attendance; all bureaucracies, including state governments, make mistakes. Lots of mistakes.

Judge Simpson’s dismal ruling ordinarily would not be a problem, because he was simply sitting as the trial judge here, and everyone knew and expected the case would be appealed to the Pennsylvania Supreme Court and decided before the election. The problem, however, is that the Pennsylvania Supreme Court is at the moment locked in a dysfunctional state in which it has an even number of Justices because Justice Orie Melvin doesn’t have the sense of responsibility to resign and let the rest of the state get on with its business. If the Supreme Court locks horns, 3 to 3, then Judge Simpson’s decision remains controlling law.

Which means Viviette Applewhite still can’t vote, not in any sense that you, me, William Penn, or Ben Franklin would have understood the term. After she can’t vote, she (and others like her) can file a provisional ballot, appeal the decision to the board of electors, hire a lawyer, file a lawsuit, and then litigate it for weeks, months, or years and then maybe, just maybe, her vote will be counted. Does anyone consider the process Judge Simpson has imposed upon the people without adequate photo identification to be anything less than an undue burden on the right to vote?

I don’t. Since when is a prolonged bureaucratic appeal process and an uncertain lawsuit against the government equivalent to actually voting? And would anything have convinced Judge Simpson that “disenfranchisement was immediate or inevitable?”

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  • http://www.litigationandtrial.com/ Max Kennerly

    The Commonwealth did not dispute that over 400,000 citizens lack adequate documentation to obtain a photographic ID under the law, and that there were zero verified cases of in-person voter fraud in Pennsylvania. When I think of the word “reasonable,” I think “based upon a rational application of impartial reasoning.” What you think is “reasonable” about the restriction? We know for a fact that the “problem” it is supposed to solve does not exist, and that it will certainly create a hardship for hundreds of thousands of citizens, burdening their right to vote.
    No rational application of impartial reasoning would lead a person to conclude that this law was necessary or appropriate. In fact, it’s quite clear that the law is not rationally related to any legitimate government objective, much less narrowly tailored to a compelling government interest. It’s a simple tactic for burdening certain classes of voters.
    To the extent anyone thought otherwise, the Commonwealth admitted by issuing an identification to Ms. Applewhite, who still lacks adequate documentation. It’s apparently okay for a random PennDOT clerk to override the law’s strict requirements as a means of mooting a lawsuit or gaining points in the media; yet, the locally elected Judge of Election, who has been sworn to uphold the voting laws under threat of criminal penalty and who is observed at all times by members of both parties, cannot be trusted with this same power to waive the law once satisfied of the voter’s true identity. Please explain how that difference is “reasonable.”

    • gts109

      You ask why I think this is reasonable. I’ll turn to the U.S. Supreme Court for my answer. Justice Stevens, who authored the majority opinion in the U.S. Supreme Court decision on this issue (Crawford), cited with approval a Federal Election Reform Commission Report (a bipartisan effort chaired by Jimmy Carter and James Baker), which found that our elections would not “inspire public confidence” without “safeguards… to confirm the identity of voters.” These types of laws are overwhelmingly popular (well into the 70 percent range in the polling reports I’ve seen), because nearly everyone is able to comply with photo ID requirements in their daily lives with minimal effort.

      You focus heavily on that 400,000 figure (by the way, I believe you, but I couldn’t find the 400,000 number in the opinion — perhaps I overlooked it in the 68 pager, which overused block quotes). The Commonwealth Court, however, found that the credible evidence showed that only about 1% of registered voters didn’t already have an acceptable photo ID as of June 2012, and that number was likely to go down in the face of considerable efforts by the Commonwealth to get everyone else compliant by the 2012 deadlines.

      Just because no case of in-person voter fraud has been prosecuted doesn’t mean that it’s not an actual risk or that it doesn’t happen. We’ve all heard the stories, and with Black Panthers standing outside Philadelphia polling places wielding billy clubs, it’s easy to believe that it happens, and in every election. It’s exceedingly easy to game this system, and perhaps even easier to get away with it. The photo ID requirement makes all that much more difficult.

      Getting back to Mrs. Applewhite, I’m sincerely curious, does she receive Social Security payments? If so, I would think she could acquire a photo ID under this law. As for the other 400,000 who supposedly can’t get photo IDs, are they indigents? If so, they don’t need a photo ID under the law, if they vote provisionally and then file some simple paperwork after the election. Also, very few (or of almost none) of the 400,000 are registered to vote (otherwise, the Court’s 1% figure makes no sense, given Pennsylvania’s registered voter count). It seems that this law further burdens a right that unregistered have chosen not to avail themselves of under existing requirements. So, the members of that group are unlikely to be affected by the requirements of the law since they cannot vote anyway. On a facial challenge, it’d be hard for the judge to pay much mind to them.

      I’m not trying to say that you’ve raised no legitimate concerns. Surely, people like Mrs. Applewhite may struggle, and they deserve our sympathies and assistance to vote. I do not think, however, that their tales are a reason to discard what are sensible, easy to meet, and widely popular requirements to protect against possible voter fraud.

      • http://www.litigationandtrial.com/ Max Kennerly

        But these “safeguards” are admittedly meaningless. The Commonwealth didn’t bother to produce any evidence they would do anything whatsoever to reduce the possibility of fraud. In-person voter fraud here would occur exactly the same way it would before: by having a Judge of Elections and inspectors in on the fraud. Absent that, in-person fraud isn’t going to happen. The burden is on the Commonwealth to prove the utility of these burdensome restrictions, and they wholly failed to do so.
        Ms. Applewhite was an ideal plaintiff because of the reason she couldn’t get a Voter ID: there wasn’t one. The Commonwealth just kept refusing her for no reason at all — and it turns out all she had to do was hire a team of lawyers to litigate her case through trial, all the while enjoying national media attention. Can’t everyone do that?
        Of course not. Has the government every made a mistake with your paperwork? Now multiply that mistake for millions of citizens. Now add in the number of people who have mistaken perceptions about the law — like how some college IDs work while others do not — plus the number of people with legitimate issues such as lacking a birth certificate (which is common for the elderly) and you end up with hundreds of thousands of people being denied the right to vote… for what? For nothing. The Commonwealth admitted the law serves no purpose, is as evaded as easily as the old law, and can be subverted by unsupervised, unelected, unsworn PennDOT clerks, but not corrected by an elected, sworn, supervised (by both parties) Judge of Elections.
        That’s simply not rational. A rational Voter ID law would not have been rushed through but instead would have been run through at least a whole election cycle. A rational Voter ID would permit Judges of Elections to deal with problems on the spot, leaving the burden upon the political parties — which are observing the process the entire time through their own appointed inspectors, as well as their poll watchers — to challenge any allegedly fraudulent votes. A rational Voter ID law would not put the burden on the ACLU to scramble and file hundreds of thousands of individual lawsuits a few months before the election, which is what the Commonwealth — and, sadly, Judge Simpson — has proposed.