Penn. Resists Voter Suppression

By William Boardman, Reader Supported News

30 August 12

Reader Supported News | Perspective

 

Partisan voter suppression outsmarts the law, for now.

cross the media, the headlines got it wrong when they claimed "Judge Upholds Voter ID Law in Pennsylvania," or some variation of that assertion. The judge didn't strike down the law, and it's still very much under challenge in the courts.

Even though it took Commonwealth Court Judge Robert Simpson some 70 pages to explain his decision, the decision did not "uphold" the law. The decision in Applewhite v. Commonwealth only denied the plaintiffs' application for a preliminary injunction. The grounds were as simple as they were legalistic: Judge Simpson found no basis for suspending the law at once because the plaintiffs' could not show it would be unconstitutional in every conceivable circumstance.

The legal issue is "facial constitutionality," or whether the voter ID law is unconstitutional on its face, which is a hard standard to meet. All other questions of substance remain untouched by this decision and remain to be litigated in further court actions, especially any that consider the law "as applied," or as it works in practice.

That's what the judge meant in the summary of his decision: "Petitioners' counsel did an excellent job of 'putting a face' to those burdened by the voter ID requirement. At the end of the day, however, I do not have the luxury of deciding this issue based on my sympathy for the witnesses or my esteem for counsel. Rather, I must analyze the law, and apply it to the evidence of facial unconstitutionality brought forth in the courtroom, tested by our adversarial system. For the foregoing reasons, I am constrained to deny the application for preliminary injunction, without prejudice to future 'as applied' claims." [Emphasis added.]

In other words, Judge Simpson's decision on the injunction has no weight whatsoever in any future challenge to the law and any claims of actual harm it may cause.

The judge's ruling is a grand example of where the law takes leave of reality. Majestically, logically, correctly perhaps - but insanely - the law here protects the deliberate, planned perpetration of injustice - Republican suppression of voting groups more likely to vote for Democrats.

This is not a matter of dispute. The voter ID bill was partisan and passed on a partisan vote, with no Democrat in the legislature voting for it. The Pennsylvania House Majority Leader Mike Turzai, a Republican from Allegheny, made the political strong arming crystal clear last June: "Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done."

Since Judge Simpson, 61, is an elected judge, he has a clear, apparent interest in how his decision might affect the electorate that put him in office. He did not discuss this possible conflict in his decision. He is also a Republican, serving a ten-year term that ends in December 2021, leading to speculation that his decision may have been partisan.

Other than that circumstance, however, there's no evidence to support suspicion, and at least one legal writer has looked at the question in detail for the Los Angeles Times and given the judge a pass.

The partisan nature of voter suppression isn't subtle. This isn't politics as usual. Both sides don't do it. Democrats used to suppress the black vote back when the "solid South" voted Democratic. But for at least the past fifty years, Democrats have worked to expand the vote. Perhaps because it has something to do with democracy.

Ever since 1964, the South has been increasingly safe for Republicans and there's an ugly racial element to that. Richard Nixon made that explicit with his so-called southern strategy, and Ronald Reagan affirmed it when he started his 1980 campaign in Philadelphia, Mississippi, while that community was still protecting the murderers of Civil Rights workers there in 1964.

Since January 2011, Republican majorities in eleven state legislatures have passed voter ID laws designed to skew the vote toward Republican candidates in those eleven states. The Brennan Center for Justice tracks these laws through its Democracy Program that "seeks to change the ways in which citizens participate in their government by fixing the systems that discourage voting, hinder competition and promote the interests of the few over the rights of the many."In Texas and South Carolina, with their long histories of suppressing minority voting, the US Justice Dept. has intervened to block both states from implementing their voter ID laws. In Wisconsin, Dane County Circuit Judge Richard Niess ruled in July that the Republican-passed voter ID law was unconstitutional on its face, writing in part: "A government that undermines the very foundation of its existence - the people's inherent, pre-constitutional right to vote - imperils its legitimacy as a government by the people, for the people, and especially of the people.... It sows the seeds for its own demise as a democratic institution. This is precisely what 2011 Wisconsin Act 23 does with its photo ID mandates." So saying, he issued a permanent injunction against the State of Wisconsin, preventing the state from further implementing the law. The state has appealed the decision.

Republicans promoting these voter ID laws - and lately it's only Republicans who promote them - argue that the purpose is to prevent voter fraud. Preventing voter fraud is a laudable goal. In reality there is virtually no voter fraud in the United States, especially voter fraud that would be cured by voter ID. In the rare instances where voter fraud occurs, it's much more likely the Indiana Secretary of State, the state's top election official, Charlie White, convicted on six felony counts in January, who commits voter fraud - not some 95-year-old black woman with no birth certificate who had been voting for fifty years after half a lifetime of exclusion. White, while he was still in office, had been an ardent defender of voter ID laws to prevent voter fraud.

Voter fraud is rare in the United States, at least voter fraud by individual voters. Even in the Pennsylvania case, the state admitted before trial that it has no cases of voter fraud to offer as evidence of the need for a voter ID law. Voter fraud is only slightly more common than tsunamis in Arizona - the easiest cure for both non-existent problems is to do nothing. Unless, of course, you have some other purpose in mind, as Pennsylvania House majority leader Turzai made plain.

Disputes over voter ID laws are no small matter, no distraction from more important issues. Voter ID laws are a Republican effort to keep a minority party in office by keeping minorities from voting, an effort to rig the system itself.

The Republican victory dance when Pennsylvania's controversial voter ID law survived its first court test may prove premature, since the law still faces at least three other likely legal challenges.

The Public Interest Law Center of Philadelphia has already filed an appeal to the Pennsylvania Supreme Court, seeking to reverse the August 15 decision of Judge Simpson, denying an injunction to prevent the law from taking effect. At the same time, his decision in Applewhite v. Commonwealth expresses misgivings about both the statute and the legislative process that produced it.

Barring further impediment, the law goes into effect on September 17, well ahead of the November 6 election. Designed to suppress the Democratic vote, the law may disenfranchise more than 750,000 otherwise eligible voters from casting ballots, about ten per cent of the Pennsylvania electorate.

Reports vary as to the effectiveness of the Pennsylvania Dept. of Transportation's implementation efforts so far, but it is clear that there is much confusion about the ID law among officials and public alike. According to one report, 80 percent of Pennsylvania personnel who were supposed to help get voters their free ID failed to tell voters that their ID was free. The same report indicated that 29 percent of recipients had to pay to get their free IDS.

Regardless of however many voters end up losing their vote, Republicans think the number could be enough for them to win elections they would otherwise lose. That's the clear meaning of Mike Turzai's comment last June: "Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done." Judge Simpson, while finding in Turzai's favor on the injunction issue, nevertheless felt the need to call Turzai's remarks "troubling" and "tendentious."

In their appeal filed August 16, the Law Center asked the Supreme Court to hear the case on an expedited basis, before the law takes effect, and the court has agreed. The court has scheduled hearings to begin September 13, the Pennsylvania Cable Network will carry them live in their totality. This is likely to be the most watched court proceeding since Chief Justice Ron Castille decided about a year ago to let cameras in the courtroom.

The September hearing date is a rebuff to Pennsylvania Governor Tom Corbett, who argued for waiting till October. The Supreme Court currently comprises six justices, three Republicans and three Democrats. A tie vote would leave the law in place.

On a separate track, there's a another lawsuit pending in Pennsylvania's second-most populous county, Allegheny, which is majority leader Turzai's home county. In contrast to Applewhite v. Commonwealth which sought an injunction on behalf of voters who would lose their right to vote, the Allegheny County challenge was brought in June by county officials, following a 2-1 party-line vote by the county election board to challenge the law. The county executive and county controller argued that the law violates both the Pennsylvania constitution and federal laws protecting the right to vote. That suit is still pending.

Additionally, the county officials say the law will cost $11 million to implement, with the state paying none of it. "So the governor is creating another unfunded mandate for all 67 counties," Allegheny county controller Chelsa Wagner said.

Allegheny County also filed a friend-of-the-court brief in Applewhite v. Commonwealth, making three arguments in support of petitioner Applewhite. The brief argued that the voter ID law violated two sections of the Pennsylvania Constitution, that it created an unfunded mandate that would cost taxpayers money while depriving some of them of their right to vote, and that it placed an unnecessary burden on the county to implement the law. "What is more," the brief argued, "no compelling state interest exists (indeed there is no state interest that has been identified) to justify these new burdens imposed on Pennsylvania voters."

The third legal challenge to Pennsylvania's voter ID law comes from the US Dept. of Justice, which has asked the state to respond to concerns that the partisan law discriminates against minorities. The Justice Dept. has asked the state for data on the Pennsylvania electorate, with a deadline that has now passed. Refusing to cooperate with the Justice Dept., Gov. Corbett says the probe is politically motivated and outside the department's authority. Corbett's general counsel cites the decision in Applewhite v. Commonwealth in defense of the voter ID law and offered to share all the state's documents prepared in defense of the law, on the condition that the Justice Dept. sign a confidentiality agreement.

The Justice Dept. could file a federal lawsuit under the 1965 Voting Rights Act, although that could prove controversial. The Mercury newspaper of Pottstown editorialized on August 24 in favors of Gov. Corbett's refusal to cooperate with "Attorney General Eric Holder's race-baiting Department of Justice." The paper argues that Judge Simpson "said the law is clearly constitutional" and that the Justice Dept. has "misapplied" the Voting Rights Act.

Meanwhile, an umbrella group called the Pennsylvania Voter ID Coalition, with 70 or more members, has hundreds of people on the ground educating voters and helping them get valid ID, which is more complicated that one might think. Even Governor Tom Corbett admitted he didn't know what would be a valid ID.

And if this coalition of unions and churches and lawyers and civil rights workers and many more is successful, then even if the courts fail to intervene, maybe enough people will be able to vote and frustrate the Republican effort to tilt the election unfairly.

So there's still a chance Pennsylvania will live up to the expectations of the state constitution's Article 1, Declaration of Rights, among them that "Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."

---

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.