A reader who has looked a Pennsylvania’s law on voter id passes along the following comments about one of the Pa. authorities relied upon by the trial court in today’s voter id decision:
In the course of my research, I found some interesting facts about those opinions, which might be of interest to the readers of your blog. Judge Simpson relies heavily on Paterson v. Barlow, 60 Pa. 54, an 1869 case, and on Winston, a 1914 case that adopted Paterson’s standard. The tagline that everyone remembers from Paterson is its “plain, palpable, and clear abuse” standard of review of registration laws. What people don’t know is that the opinion settling on that standard is a display of xenophobia and agrarian prejudice as startling as any you’ll find in an American reported decision. At issue in Paterson was a law patently designed to disenfranchise Philadelphians; among other things, it struck anyone who boarded at a hotel, tavern or sailors’ boarding house from the rolls, and only let them back in if they could supply affidavits from two homeowners in their voting district. But better yet, that rule, on the face of the statute, only applied to Philadelphia, along with a host of others. The court held that this differential treatment between Philadelphia and the rest of the state was constitutional because Philadelphians, simply, were bad people:“Where population greatly abounds vice and virtue have their greatest extremes. A simple rural population needs no night police, and no lock-up. Rogues and strumpets do not nightly traverse the deserted highways of the farmer. Low inns, restaurants, sailors’ boarding-houses, and houses of ill fame do not abound in rural precincts, ready to pour out on election day their pestilent hordes of imported bullies and vagabonds, and to cast them multiplied upon the polls as voters. In large cities such things exist, and its proper population therefore needs greater protection, and local legislation must come to their relief. The freedom and equality of the ballot-box must be protected from the local causes which mar and destroy a free and equal election.” 60 Pa. at 78.Later:“What crime have the freemen of Philadelphia committed, that their voice at the ballot-box may be stifled by the fraud or force which springs out of their local circumstances, and yet the legislature be powerless to relieve them? In the language of another, that would be “to place the vicious vagrant, the wandering Arabs, the Tartar hordes of our large cities, on a level with the virtuous and good man–on a level with the industrious, the poor and the rich.” Is that a wise and just interpretation of the Constitution which opens the polls of a large city to such imported hirelings and vagabonds without a home, by adhering to a uniformity of regulation unsuited to the city on the one hand, or to the country on the other?” Id.The court then goes on to speculate that without disenfranchising people who stay at hotels, the good householders of Philadelphia could go to the polls only to end up dead:“How then can the freedom and equality of election be secured in a great city if from the force of local circumstances the places of the real electors are usurped, if the ballot-box can be stuffed with impunity, or if suffrage can be exercised only at the risk of violence or life?” Id.This passage is especially colorful, with its imagery of urban voters “floating upon the rivers” like some sort of vermin or pestilential insect:“Where the population of a locality is constantly changing, and men are often unknown to their next-door neighbors; where a large number is floating upon the rivers and the sea, going and returning and incapable of identification; where low inns, restaurants and boarding-houses constantly afford the means of fraudulent additions to the lists of voters, what rule of sound reason or of constitutional law forbids the legislature from providing a means to distinguish the honest people of Philadelphia from the rogues and vagabonds who would usurp their places and rob them of their rights? I cannot understand the reasoning which would deny to the legislature this essential power to define the evidence which is necessary to distinguish the false from the true.” Id. at 82.And the conclusion, tellingly, brings the opinion’s two threads of bigotry and deference to legislatures together:“It is true there is a kind of liberty this registry law will destroy. It is that licentiousness, that adulterous freedom, which surrenders the polls to hirelings and vagabonds, outcasts from home and honest industry; men without citizenship or a stake in the government; men who will commit perjury, violence and murder itself. *85 To prevent this is the purpose of this law; and it should have the aid of fair men of all parties to give it a fair trial, and secure its true end. It may have defects–doubtless it has–and what system devised by the wit of man has not; but its defects, if any, should be remedied as they are disclosed by experience. The law is not unconstitutional. It is a part of the political system of the state, on which its offices, and its very continuance depends; and we, as a court, have no right to put our hands upon the whole system, on grounds of mere hardship, or for defects of regulation, which are not clear and palpable violations of the letter or very spirit of the Constitution.” Id. at 84-85.
The more things change….