[Update: the Petition to Intervene was rightfully denied.]

If you’ve been following the press on Pennsylvania’s new voter identification law, then you’ve likely already heard about the plaintiffs. Joyce Block, an 89-year-old woman, who committed the ‘crime’ of getting a marriage license in Hebrew and then registering to vote in her married name; 84-year-old Nadine Marsh, born near Pittsburgh and has lived her whole life in Pennsylvania, but whose birth certificate can’t be found; and, the worst of the worst, the ringleader, 93-year-old Viviette Applewhite, who worked as a welder in World War II, who marched with Martin Luther King, and who has 18 grandchildren, great-grandchildren, and great-great grandchildren, and who for no good reason has been denied photo identification by the Commonwealth of Pennsylvania.

These are some of the people on whose behalf a group of public interest organizations, including the American Civil Liberties Union (ACLU) of Pennsylvania, the Public Interest Law Center of Philadelphia (PILCOP), and the Advancement Project, and the Washington, D.C. based law firm Arnold & Porter have filed a lawsuit in the Commonwealth Court of Pennsylvania seeking to have Pennsylvania’s Photo ID voting law voided. The law, one of Governor Tom Corbett’s signature bills, is one of the strictest “voter ID” laws in the country, forbidding all kinds of identification — from utility bills, to Veteran IDs, to student IDs without an expiration date, out of state driver’s licenses — in favor of only a very limited list of acceptable identification, including driver’s licenses, state issued photo identification, student IDs issued by Pennsylvania schools with expiration dates (only a handful of schools have them) and passports. The Committee of Seventy has some details on what works. Expired passports, military dependent, or government employment IDs? They’re all obviously you, expired or not, but none of them work under PA’s new voter ID law.

Supporters of the law, which will cause havoc at the polls for legitimate voters by adding several steps to the voting process, haven’t been able to provide any examples of anyone actually voting more than once (or voting under the wrong name) in Pennsylvania, but the General Assembly and Governor Corbett figure the confusion created by the law and its onerous requirements would deny the vote to college students, the impoverished, and the elderly, so they fought hard for it while slashing funding for Child Care Works, the T.E.A.C.H, scholarship program, Pennsylvania Pre-K Counts and the Head Start Supplemental Assistance Program.

But it’s a truism of American politics that, for every bad idea, there’s a half dozen people who want to take it even further, and the dishonor this time falls to state Rep. Thomas Killion (R., Chester) and several other individuals who, represented by Buchanan, Ingersoll & Rooney, filed a petition in Commonwealth Court to intervene in support of the new law. 

The Philadelphia Inquirer reported it, and Free and Equal PA has a copy of the Petition. If that sort of claim sounds strange to you, it’s because it is strange: defending the laws is the duty and prerogative of the Executive branch, not private citizens. So how do they get around that? The Petition claims:

The Petitioners in this case allege that they are challenging the Voter Identification Law to protect their fundamental right to vote.  Intervenors seek to participate in this litigation to protect that same right. . . . The Commonwealth’s voter identification requirements directly protect the voter Intervenors’  fundamental right to vote by helping to safeguard against the submission of fraudulent ballots or ballots from ineligible voters, thereby preventing the voter Intervenor’s legitimately cast votes from improperly being diluted, canceled out, and effectively nullified.

Of course, we all have an interest in our votes not being “diluted” by fraudulent votes (of which, as I said above, there are no known examples), but that doesn’t mean that you, me, and everyone in the Commonwealth of Pennsylvania can all intervene in the Applewhite case, or intervene every time a taxpayer disputes their bill, or a landowner opposes an eminent domain proceeding, or any other ordinary challenge of governmental action.

The Intervention Petition doesn’t make clear exactly what they want — the Petitioners say they want to raise “defenses” on behalf of the law, and they obviously don’t have standing to come in and raise defenses for the Commonwealth, so I have to presume they intend to bring a declaratory judgment action seeking to prove the constitutionality of the law. But there’s an elephant in the room: Whitehall Township v. Oswald, 400 Pa. 65, 161 A.2d 348 (1960).

In Whitehall Township, the Pennsylvania Supreme Court stated quite plainly that nobody, not even a township, has standing to bring a declaratory judgment claim seeking an order confirming that a law is constitutional:

Would anyone contend that, by virtue of the above quoted statutory provision, the legislature conferred upon the Commonwealth a right to resort to a declaratory judgment proceeding to have an act of assembly construed or validated? To what end could such a procedure be designed? For what purpose would an ordaining public body subject to judicial scrutiny its own legislative enactments which are presumptively constitutional as a matter of law? And, it has been expressly recognized that “The same presumption of constitutional validity that attends an act of the legislature is equally applicable to municipal ordinances whether they be enacted by the council of a city, town or borough or by the supervisors of a township”: Bilbar Construction Company v. Easttown Township Board of Adjustment, 393 Pa. 62, 71, 141 A. 2d 851. So long as an ordinance is unquestioned, its constitutional validity remains established. The plaintiff township was, therefore, without standing to invoke the jurisdiction of the court below for the purpose of having the constitutionality of its trailer ordinance adjudicated in a declaratory judgment proceeding.

Rep. Killion’s Petition is thus frivolous on its face. You can’t sue to prove a law constitutional.

Shockingly, this isn’t the first time in recent memory that conservative activists have tried to sue in Pennsylvania courts to deny someone else’s rights. Back in 2004, two men in a committed relationship tried to get a marriage license in Bucks County and were denied — and were then inexplicably and inexcusably sued by a dozen representatives and a company named (I’m not kidding) Creative Pultrusions. The result? The Bucks County Court of Common Pleas dismissed them for lack of standing, citing Whitehall Township.

All of which is to say that the Killion Petition is nothing more than a crass political stunt, a deliberate waste of taxpayer-funded court time filed for the sole purpose of delaying the Applewhite case. It’s exactly the sort of abusive conduct the tort of Abuse of Process is intended to prohibit and make compensable.

It would all be funny and merely embarrassing if it wasn’t so insidious and spiteful: what lawyer wakes up, brushes their teeth, heads into the office, grabs a cup of coffee and cheerfully says, “today I hope to deny someone their right to vote?” Apparently that’s how they practice law at Buchanan, Ingersoll & Rooney.