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Thursday, September 13, 2012

Voter ID gets its day in Supreme Court

Posted By on Thu, Sep 13, 2012 at 3:40 PM

The state's controversial Voter ID law came before the state Supreme Court today, and observers seem to agree ... the state did not have an easy time of it.

Two Democrats on the Court's current 6-member roster -- Seamus P. McCaffery and Debra McCloskey Todd -- seemed openly hostile to the measure. "Could it be politics?" McCaffery asked about the motivations behind the bill, raising House Majority Leader Mike Turzai's now-infamous remarks that the law would help Mitt Romney win the state in Novemeber. Both he and Todd asked state lawyers, "What's the rush?" They noted that the state had previously acknowledged that it had no evidence that fraud was likely in the coming election.

Attorney David Gersch, who represented plaintiffs seeking a preliminary injunction to put the law on hiatus, played up to that argument. He argued that a photo ID requirement was not, in itself, unconstitutional -- provided the state take adequate steps to ensure that no one was disenfranchised. "The vice is not requiring ID," he argued. It was, instead, requiring ID "that people don't have and have a hard time getting." Gersch noted that other states that had implemented voter ID laws, like Virginia and Georgia, had phased the measure in over a period of years. (By contrast, Pennsylvania's legislature passed the law this past spring, to go into effect this November.) And while a photo ID requirement was recommended by a bipartisan election commission, that commission too recommended a phase-in over a couple election cycles.

By contrast, attorneys for the state were questioned sharply, resulting to some pugnacious exchanges with Alfred Putnam, representing the Corbett administration. Putnam took issue with estimates that a million or more Pennsylvanians' voting rights could be at stake. Putnam called such figures "newspaper tricks," while arguing that the legislature "had a lot of evidence of voter fraud" when passing the bill. (As I've written here previously, while state officials have previously acknowledged a dearth of fraud investigations, they have never said that fraud never happens.)

Several of the judges seemed dubious. In addition to McCaffery and Todd, Justice Thomas Saylor -- a Republican -- had some pointed questions about the somewhat improvisational way in which the law was being implemented. (The state had, for example, created a special for-voting-purposes-only ID that only became available late last month.) "The difficulty with this case is that it's a moving target," offered Justice Max Baer, a Democrat.

But as Putnam reminded the justices, their job wasn't to determine whether Voter ID is good policy. They were ruling on a lower-court decision to deny a preliminary injunction against the law ... and as a rule, preliminary junctions are supposed to be hard to get. Putnam noted that Commonwealth Court Judge Robert Simpson "wasn't persuaded" by worst-case scenarios of widespread voter disenfranchisement. And while such a scenario "may happen, I suppose," basing rulings on such speculation is "not what you're supposed to do."

Another attorney for the state, John Knorr, observed that the original plaintiffs int he case against the law had either since obtained IDs, or were on the way to doing so. The plaintiffs, he said, "couldn't come up with one actual human being who would be harmed by this statute."

Of course, one could argue that the whole Voter ID bill was itself based on speculation about worst-case scenarios -- allegations of massive voter fraud. Putnam told the justices that legislators passed the bill because "they were concerned about declining confidence in our electoral system ... They wanted to send a message ... that the public can trust the system." That argument conveniently omits the role that Republican legislators especially have played in creating that crisis of confidence. But in any case, he argued that it wasn't the court's job to "tinker" with policy, like trying to decide questions of timing.

He seemed to have at least one ally: Justice Michael Eakin harrumphed at those casting doubt on the existence of voter fraud, contending that the practice dated back to the time of George Washington. And it will take four of the court's justices to overturn Simpson's ruling. I'm not an experienced enough court watcher to make a prediction here, but based on what I saw today, Saylor is the most likely swing Republican. Chief Justice Castille was fairly restrained. If a Democrat were going to beak hearts here, it would be Max Baer, who had some sharp questions for both sides ... and later in the day dished out some grief to Democrats arguing against a legislative district map. More on that fracas later.

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