The Parties' Pretrial Briefs

The Petitioners and the Commonwealth filed pretrial briefs in advance of next week’s hearing on Petitioners’ request that the Court preliminarily enjoin the Commonwealth from enforcing the Photo ID Law.

The Petitioner’s brief is available here.
The Commonwealth’s brief is available here.

My observations on the briefs follow:

Standard of Review

What struck me most about the briefs was the parties’ diametrically opposed views about the legal test that the Court should apply to determine whether the Photo ID Law passes constitutional muster.  Which test Judge Simpson chooses well could determine the outcome of the case.

Citing to Pennsylvania Supreme Court cases from 1868 and 2006, Petitioners argue that voting is a “sacred right” and a “fundamental right.”  Therefore, they argue, the Court must apply the “strict scrutiny” test, which means the Court must determine that the Photo ID Law is “narrowly drawn to accomplish a compelling governmental interest” in order to survive Petitioners’ challenge.  Petitioners cite to Pennsylvania Supreme Court cases from 2003 and 2002 that applied the strict scrutiny test when considering the constitutionality of laws that infringe other fundamental rights, and to a 2004 Pennsylvania Supreme Court case in which the Court stated that the strict scrutiny test applies to voting laws.  Petitioners conclude that, because the Commonwealth has conceded that there is no evidence of in-person voter impersonation fraud (the only type of fraud the law possible could prevent), the law will not protect the interests that the Commonwealth contends the law is designed to protect (preventing in-person voter impersonation fraud and increasing public confidence in the election system).  Therefore, Petitioners say, the Photo ID Law does not accomplish any government interest, let alone a compelling one, rendering it unconstitutional.

The Commonwealth, on the other hand, argues that “the right to vote is not a fundamental one.”  In support of this position, it cites to a 2000 case in which the Commonwealth Court stated that “the right of felons to vote is not a fundamental right.”  Therefore, the Commonwealth argues, the Court should apply the “rational relationship” test, meaning that the Court need only determine that there is a rational relationship between the law and some legitimate purpose, in order for the law to survive challenge.  The Commonwealth also argues that it is not required to explain what it sees as the legitimate purpose of the law (“[T]he party defending the statute need not even advance reasons to establish its rational basis.”).  Rather, the Commonwealth argues, as long as the Court concludes that (1) any basis for the law exists, and (2) the law relates to that basis in a rational way, it is constitutional.  The Commonwealth then cites to Crawford v. Marion County Election Board, for the proposition that the Photo ID Law passes the rational relationship test.  In Crawford, the case in which the United States Supreme Court upheld Indiana’s similar photo ID law, the Court concluded that the law served several rational interests even though Indiana was unable to come forward any evidence of in-person voter impersonation fraud.

An amicus brief filed by Judicial Watch on behalf of Representative Metcalfe, the sponsor of the Photo ID Law, and other Republican state representatives who voted for the law (the “Metcalfe Amici”) advocates yet another standard of review — the “gross abuse” standard.  According to the Metcalfe Amici, a Court only may strike down an election law where it concludes that the legislature has grossly abused its authority.

Notably, the Metcalfe Amici appears to contradict the Commonwealth’s argument that voting is not a fundamental right:  “[L]aws regulating elections . . . ‘should never be stricken down by the courts unless in plain violation of the fundamental law.’”  In any event, the Commonwealth’s rationale for why voting is not a fundamental right is weak at best.  The Commonwealth cites one case in support of its position — Mixon v. Commonwealth.  In Mixon, the Court held that felons do not have a fundamental right to vote.  But the Court made clear that felons lose their right to vote when they are convicted.  Indeed, the Mixon court cited a 1948 United States Supreme Court case for the proposition that: “[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”  Nowhere did the Mixon Court say that voting is not a fundamental right of law-abiding citizens.   Therefore, Mixon may well stand for the proposition that the Pennsylvania Constitution gives all qualified voters a fundamental right to vote, but that this fundamental right may be stripped from those who commit felonies as part of their punishment.

More On Crawford

As discussed above, the Commonwealth argues that it need not produce any evidence of in-person voter impersonation fraud because the Crawford Court already held that photo ID laws pass the rational basis test even in absence of such evidence.   If, as Petitioners argue, the strict scrutiny standard applies, the Crawford Court’s rational basis discussion will be irrelevant.  Petitioners also argue that Crawford simply does not apply to this case, as it presents no issues of federal law:

“The Court in Crawford rejected a challenge to an Indiana photo ID requirement raised under the United States Constitution; Petitioners in this case bring a challenge to the Photo ID Law under the Pennsylvania Constitution. The Pennsylvania Constitution contains express provisions protecting the fundamental right to vote, specifically, the requirement that elections are to be ‘free and equal,’ and that ‘no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.’ . . . The presence of these express provisions requires a higher level of scrutiny than in Crawford, which turned on plaintiffs’ failure to develop the record in key respects . . . . Petitioners will establish a well-developed record, in stark contrast to the record in Crawford.”

Additional Observations from Petitioners’ Brief

•  As previously reported, a study by the Commonwealth determined that more than 750,000 registered voters in PA do not have a PennDOT ID.    Petitioners commissioned a survey which indicates that the number is even higher.  According to the survey results, approximately one million registered voters in Pennsylvania not only lack a PennDOT ID, but also do not have any of the other forms of ID deemed acceptable under the law.

•  In response to the Commonwealth’s argument that one of the purposes of the law is to ensure public confidence in the election system, Petitioners say:  “The best antidote to voter suspicion would be for the Commonwealth to publicly acknowledge what it has confessed in its Stipulation, namely, that in-person voter fraud is non-existent in Pennsylvania.”

•  Petitioners also allege that the Commonwealth’s stated rationales for the law — to prevent voter fraud and ensure public confidence in elections — are pretexts:

“If the gaping facial dissonance between the purported goals of the Law and its effects were not plain enough, there is the unabashedly partisan nature of the Law evidenced by the party line vote, Representative Turzai’s candid boast that the Law will give the election in Pennsylvania to Governor Romney, and the expense of a law that appears to accomplish so little at a time when money is so dear that it fairly raises the question: what is there of such value that the legislature thought it was buying?”

Additional Observations from the Commonwealth’s Brief

•  Several of the petitioners alleged that they cannot obtain the “free” photo ID cards issued by PennDOT because they do not have and cannot obtain copies of their birth certificates, which PennDOT requires to issue a photo ID card.  In its brief, the Commonwealth acknowledged that there are “significant barriers to the acquisition of a photo ID to vote.”  It then announced the creation of a brand new state-issued voter ID card that each of the petitioners who do not currently possess photo ID (and anyone else similarly situated) would be able to obtain without providing a birth certificate:

“Beginning in August, 2012, the Department of State will begin issuing through PennDOT driver license centers a Department of State voter ID card (‘DOS Voter ID’). Although some registered voters may not be able to locate or obtain the documentation required for the secure PennDOT products, the DOS Voter ID will be provided free of charge and for voting purposes only to any registered voter  who does not have another acceptable form of photo ID.  In order to obtain the DOS Voter ID, a person must know their Social Security number and provide at least two proofs of residency (e.g., utility bills, lease or mortgage documents).”

The Secretary of State later issued a press release with additional details about the new card.

•  The Commonwealth notes that Petitioners are asking the Court to order the Commonwealth to revert back to the preexisting law.  It then points out that, under the preexisting law, first-time voters in a precinct were required to show ID (thought the list of acceptable IDs was longer).  The Commonwealth then says that:  “It is entirely unclear why Petitioners’ argument [as to why the law is unconstitutional] would not apply with equal force to the requirement of proof of identity for first-time voters before Act 18.”   There is a simple explanation for this, though:  The first-time voter ID requirement was mandated by federal law — the Help America Vote Act.  Federal laws have supremacy over contrary state laws.  So a first-time voter ID requirement mandated by the federal government overrides any bar that the Pennsylvania Constitution might place in the path of a similar state-mandated law.

•  In Count III of the Petition, Petitioners allege that the Photo ID Law violates Article VII, Section 1, of the Pennsylvania Constitution, the section that defines the qualification of voters, by imposing a new qualification — possession of one of the approved forms of photo ID.  The Commonwealth argues that “[t]he flimsy logic advanced by Petitioners in Count III would, for example, preclude the legislature from establishing a procedure of voter registration, because the list of qualifications in Article VII, Section 1 is silent with regard to that process or any other mechanism of enforcement.”  However, this argument ignores the clear text of Article VII, Section 1, which provides that voters who meet certain qualifications (as to citizenship, residency and age) shall be entitled to vote “subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact.”  In other words, Petitioners’ legal theory would not preclude the legislature from establishing registration procedures because Article VII, Section 1, specifically gives the legislature the power to regulate registration.  The real issue is this:  If the drafters of Article VII, Section 1, intended to give the legislature free rein to pass laws impacting who can vote (such as ID requirements) rather than laws relating only to voter registration, why did they explicitly say that the qualifications to vote are subject only to laws “requiring and regulating the registration of electors”?

•  The Commonwealth also contends that:  “The photo ID requirement does not add a qualification, but simply confirms each voter’s existing qualifications.”  That is not true.  To qualify to vote, a voter must be a U.S. citizen, at least 18 years old and a resident of Pennsylvania.  But not a single one of the photo IDs deemed acceptable under the law confirms that a voter possesses all of the qualifications necessary to vote in Pennsylvania.  For instance, drivers’ licenses, student ID cards, and personal care facility cards are available to non-citizens.  Student ID cards from Pennsylvania institutions of higher learning are available to students who go to school in but do not reside in Pennsylvania and students who are under 18.  Non-Pennsylvania residents and those under 18 also can obtain a passport.  And government workers who are not Pennsylvania residents would possess an employee ID card that qualifies as acceptable photo ID under the law.

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