Breaking News: Thoughts on the Pennsylvania Voter ID Decision

In a careful and well-written 70-page opinion, which is almost certainly going to lead to Pennsylvania’s use of its new voter id law in the November elections, state court judge Robert Simpson has rejected a preliminary injunction to bar use of the voter id on grounds it violates the state constitution.

In essence, the judge determined the following: the new voter i.d. law is likely to affect more than 1% but significantly less than the alleged 9% of Pennsylvania voters who plaintiffs alleged lacked the i.d.  He thought it credible that state officials could get i.d.s into the hands of most voters who wanted them on election day. Many of the plaintiffs brought into the case to “put a face” on the case will have other means of voting, such as through absentee balloting. For those relatively few voters who will have significant difficulties getting voter id, and who cannot vote with an absentee ballot., they may well be entitled to an order, as applied to these voters only, barring the use of the id law as unconstitutional. Under the Supreme Court’s Crawford case (which is not strictly applicable in this case, decided under state law, but which is persuasive authority to the court), invalidating the law in the entire state is too broad of a remedy; the focus should be on those voters facing special burdens.

In terms of the state’s interests, the judge did acknowledge that some Republican legislators may have passed the law for partisan reasons, but he did not impute that intent to most legislators. In any case, following Crawford, the judge said the fact that there were also neutral justifications for the law, such as preserving election integrity, which justified the law regardless of partisan motivations. The judge acknowledged it was undisputed that Pa. had no evidence of a problem with impersonation voter fraud, the only kind of fraud which a voter id law can prevent. But again, following Crawford, the judge said proof of an actual problem is not required. Finally, the judge said that if he had to apply “strict scrutiny” to the case (he concluded he did not), he might have reached a different decision.

A few reactions:

1. This is a careful opinion by a judge who struggled with the evidence and the law and, as I expected, issued a thoughtful, non-ideological and well-done decision.  I disagree with the decision’s bottom line (more on that below) but there is no doubt this is a judge acting in good faith applying the law and facts as he found them.

2. This decision is almost certain to stand. The case will go to the Pa. Supreme Court, which is currently divided 3-3 between Democrats and Republicans. On the merits and given deference to trial court preliminary injunction decisions, the state Justices are unlikely to break on party lines in this case. But even if they did, a 3-3 tie leaves the lower court opinion in place. I don’t expect there would be any fuller ruling on the merits in this case before November or that any such ruling would lead to a different result.

3. The PA court should be the last stop for this case, which raises only state law issues—no U.S. Supreme Court review.  While there is a chance that the U.S. Department of Justice would now try to get preliminary relief enjoining the use of the voter i.d. law in November infederal court raising a violation of section 2 of the Voting Rights Act, I think that such a remedy would be unlikely to be granted at this time.

4. I am surprised by the ruling, mostly because the press reports made me think that Pa. officials were not ready to implement the law in time to actually get i.d.’s into the hands of people who need them. There were also concerns raised about whether local election officials would implement the law evenly and fairly. The judge, who was there (as I wasn’t) to judge the credibility of witnesses reached the conclusion that Pa. officials were ready, and in fact for most people it won’t be a great burden to get the i.d.

5. I disagree with the ruling on the merits on a couple of grounds.  First, the judge seemed to downplay the burden placed on voters needing to go out and get the voter i.d., such as the costs to poor voters of getting the underlying documents. While burdens on voters would be justified if the law actually served an important purpose, the fact that there is no evidence of impersonation voter fraud to justify a voter i.d.—a point which cannot be emphasized enough—the law would be imposing a burden on voters for no good reason.  And of course it is being imposed for a bad reason: these laws have been favored almost exclusively by Republican legislators likely out of the belief that it will cause a modest decline in Democratic turnout.  But the judge followed the lead of Crawford, and the blame should be with the Supreme Court and not with this judge.  Finally, the judge points to “as applied” challenges as the solution.  But these are expensive and difficult to bring—people who lack an i.d. are going to be among the least connected to the legal system, and there is no doubt that most of these voters will now fall through the cracks.  Again, if there were a solid reason for requiring the i.d., this cost would be more justifiable.  But there isn’t.  I put all of this in context in chapters 2 and 3 of The Voting Wars.

 

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