[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?”