Several Amicus Briefs Filed in Support of Appellants

According to the Supreme Court docket, nine individuals and entities filed amicus briefs in support of appellants last week.  Six of the briefs have been posted online.  While many of the briefs appear to be more or less the same as the amicus briefs filed by the same parties in the Commonwealth Court, two are new:

Amicus Brief of Several Pennsylvania Law Professors:  This brief argues that: (1) the Court should give deference to the cases from other states where the courts have stricken photo ID laws that are less restrictive than the Pennsylvania law; and (2) the Court should not give deference to the cases from other states where the courts have upheld photo ID laws because the laws at issue in those cases were not as restrictive as the Pennsylvania law.  The brief also distinguishes the Crawford case.

Amicus Brief of the Asian American Legal Defense and Education Fund:  This brief argues that the Photo ID Law will have a discriminatory impact on Asian American voters.

The amicus briefs filed by the City of Philadelphia, Common Cause, the SeniorLaw Center and a poll worker appear to be largely the same as the briefs filed by those same parties in the Commonwealth Court.

According to the docket, the AFL-CIO, the Senate Democratic Caucus and the Anti-Defamation League also filed amicus briefs, but I have not been able to find copies of them posted anywhere online.  (UPDATE 9/17/12: I found the AFL-CIO amicus brief and the ADL amicus brief).

Petitioners’ Request to Enjoin Enforcement of Photo ID Law Denied

The opinion is available here:

I will post a summary when time permits.

UPDATE (8/16/12)

Here is a summary of Judge Simpson’s opinion.  I have tried to include as little side commentary as possible, so that this will be as close as I am capable of getting to an unbiased recap of the opinion.

 

QUICK SUMMARY

I start with an executive summary and follow-up with more details:

Judge Simpson denied Petitioners’ request for an injunction because he concluded that:

• There is no evidence that anyone will be harmed by the law because almost everyone who does not already have acceptable photo ID will be able to get it, and those few who cannot have other options available to them under the law (such as absentee and provisional ballots).

• Given these other options available to voters who will be burdened by the law, the relief Petitioners seek — enjoining enforcement of the law in its entirety — is too broad.

• Enjoining the law would hamper efforts by the Commonwealth to make voters aware of the law and assure that any voter who needs a photo ID can get one.

• Petitioners are not likely to prevail on their claims that the Photo ID law violates the Pennsylvania Constitution because: (a) the legislature has broad discretion to pass election laws; and (b) Petitioners were required to but did not establish that the law is unconstitutional in every possible application.

• The Commonwealth’s interest in protecting public confidence in elections is a legitimate interest that is sufficient to offset any unequal burden that the law might impose on different classes of voters.

DETAILED SUMMARY

Judge Simpson divided his opinion into the following sections and subsections (since the opinion does not contain a table of contents, I have included page numbers so you can easily find any particular section in which you may be interested):

I.      Background (p. 3)
A.  Factual and Procedural History (p. 3)
B.  Act 18 (p. 5)
II.    Preliminary Injunction Standard (p. 9)
III.  Immediate and Irreparable Harm (p. 10)
IV.   Greater Injury from Refusing Injunction (p. 15)
V.     Success on the Merits (p. 16)
A.  Facial Challenge (p. 16)
B.  Count I – Undue Burden on Fundamental Right (p. 23)
1.  Pennsylvania Constitutional Provisions (p. 23)
2.  Legal Standard for Challenge (p. 37)
3.  Preliminary Determination (p. 58)
a.  Stated Commonwealth Interests Supporting Act 18 (p. 58)
b.  Burdens (p. 60)
c.  Preliminary Conclusions (p. 61)
C.  Count II – Equal Protection (p. 62)
1.  Equal Protection Analysis (p. 62)
2.  Preliminary Determinations (p. 64)
D.  Count III – Improper Additional Qualification to Vote (p. 65)
VI.   Injunction Reasonably Suited (p. 65)
VII. Summary (p. 68)

In Sections III-VI, Judge Simpson discussed the various elements for obtaining a preliminary injunction that he concluded Petitioners did not establish.  Since some of the same facts and legal analysis apply to more than one element, the opinion was, understandably, repetitive in places.  I have attempted to pull points that the Court repeated in different portions of the opinion together into a single discussion, so my summary will not precisely follow the order of the opinion, and some of the block quotes are pieced together from different sections of the opinion (I have omitted citations from quotes for ease of reading).

Introduction

Judge Simpson opened by summarizing the history of the case the details of the Photo ID Law (Act 18).  He concluded by noting that: “Importantly, Act 18 contains no references to any class or group.  Rather, its provisions are neutral and nondiscriminatory and apply uniformly to all voters.”

Immediate Harm / Reasonably Suited

Judge Simpson concluded that Petitioners failed to establish that the law would cause them immediate and irreparable harm, one of the factors for obtaining a preliminary injunction:

“Petitioners did not establish, however, that disenfranchisement was immediate or inevitable. . . . On the contrary, the more credible evidence on this issue was that offered through Commonwealth witnesses.  I was convinced that efforts by the Department of State (DOS), the Department of Health, PennDOT, and other Commonwealth agencies and interested groups will fully educate the public, and that DOS, PennDOT and the Secretaries of those agencies will comply with the mandates of Section 206 of the Election Code [requiring PennDOT to issue free photo IDs to those who need them to vote and requiring the Secretary of the Commonwealth to publicize the law]. Further, I was convinced that Act 18 will be implemented by Commonwealth agencies in a non-partisan, evenhanded manner.”

Judge Simpson also relied heavily on the recent steps the Commonwealth has taken to reduce barriers to obtaining a photo ID.  If you have been following this blog or the case generally, you will know that several of the Petitioners alleged that they did not have and could not obtain a copy of their birth certificates.  Since PennDOT requires voters to produce a copy of a birth certificate (among other documents) before it will issue the free non-drivers photo ID card offered by the state, several Petitioners alleged that they could not obtain the free ID card.  Several witnesses also testified that they would have difficulty obtaining a replacement social security card and/or that the name on their social security card does not match the name on their birth certificate.  To deal with these problems, in May the Commonwealth announced that it would no longer require voters born in Pennsylvania to provide a paper copy of their birth certificates; rather PennDOT would simply contact the Department of Health to confirm that the Commonwealth had a record of the voter’s birth in its system.  Petitioners pointed out that this change would not help the Petitioners and others who were born in other states.  Then, a week before the trial started, the Commonwealth announced that it will make available through PennDOT a brand new photo ID card — good only for voting — for those who, despite their best efforts, are unable to obtain a birth certificate (the “DOS ID”).  Voters eligible for the DOS ID could obtain one by providing their social security number, birth date, and two proofs of residence.  Judge Simpson concluded that these efforts by the Commonwealth made it unlikely that any voters would be harmed by the Photo ID Law:

“[C]onsidering the believable testimony about the pending DOS photo IDs for voting, and the enhanced availability of birth confirmation through the Department of Health for those born in Pennsylvania, I am not convinced any qualified elector need be disenfranchised by Act 18. . . . Because under the plain language of Act 18 the photo IDs are free, and under new procedures birth certificates with raised seals are no longer required for those born in Pennsylvania, the inconvenience of going to PennDOT, gathering required documents, and posing for a photograph does not qualify as a substantial burden on the vast supermajority of registered voters. . . . A somewhat heavier burden is placed on certain individuals, such as persons born out-of-state who may have difficulty obtaining a useful birth certificate. This burden is mitigated by the pending DOS ID, which will be available without the need to produce a raised-seal birth certificate.”

(For any lawyers in the audience, Judge Simpson rejected Petitioners’ legal argument that the promise to do something in the future — here, the Commonwealth’s promise to make the DOS ID available — is insufficient to defeat a request for an injunction, holding that the out-of-state case law upon which Petitioners relied was inapplicable to the matter at hand).

Judge Simpson then specifically addressed the two Petitioners who claim that the DOS ID would not solve their problem because they are unable, for medical reasons, to go to a PennDOT licensing center to obtain the ID:

“I thought it highly likely that these individuals, and others with similar obvious, profound infirmities, would qualify for absentee voting. Indeed, I would be shocked if that were not the case here. Moreover, if these individuals did appear to vote in person on Election Day, they would be able to cast provisional ballots even without photo ID. Thereafter, judicial relief is available on an individual basis to prevent an unconstitutional application of Act 18. . . . [B]ased on the availability of absentee voting, provisional ballots, and opportunities for judicial relief for those with special hardships, I am not convinced any of the individual Petitioners or other witnesses will not have their votes counted in the general election.”

Judge Simpson used a similar analysis when he concluded later in the opinion that Petitioners failed to establish one of the other factors necessary to obtain an injunction — that the requested injunction is reasonably suited to remedy the alleged harm.  He held that the relief requested (invalidating the entire Photo ID Law) was not a reasonably suited to cure the alleged harm.  For instance, for “the elderly and infirm who have difficulty traveling to PennDOT Drivers’ License Centers, and homeless persons [who] face a somewhat heavier burden . . . Petitioners’ request for relief is not tailored to meet the groups impacted by this somewhat heavier burden.”  Rather, Judge Simpson noted, any voter burdened by the requirement to obtain photo ID has other, less sweeping available remedies.  For instance, the voter can, if he or she qualifies, cast an absentee ballot.  The voter also can cast a provisional ballot and, if the county board of elections refuses to count it, that voter can sue to establish that the refusal infringes his or her constitutional rights.

Judge Simpson also discussed the evidence presented with respect to the number of voters who may lack a valid form of photo ID.  Professor Barreto, an expert retained by Petitioners, conducted a survey of Pennsylvanians  and concluded that about one million voters lacked an acceptable form of photo ID.  Judge Simpson held that, “for the most part, [Professor Barreto's] opinions were not credible.”  Based on the evidence presented, Judge Simpson estimated that “the percentage of registered voters who did not have photo ID as of June, 2012, is somewhat more than 1% and significantly less than 9%” and “rejected Petitioners’ attempts to inflate the numbers in various ways.”

Greater Injury

Judge Simpson determined that Petitioners failed to establish another factor in the preliminary injunction analysis; namely that greater injury would result if the Court refused to issue the injunction that if it granted it.  Noting that the Commonwealth presented evidence that it currently is in the process of implementing and publicizing the Photo ID Law and that it would be difficult and burdensome to stop and restart that process, he held as follows:

“I determined that granting a preliminary injunction between now and the time an appeal is likely resolved would result in great injury. Conversely, I do not expect anyone to vote between now and the time an appeal is resolved.”

In other words, Judge Simpson is essentially saying that, had he enjoined the law, and had the Pennsylvania Supreme Court later reversed him, the Commonwealth would have been forced to scramble to make up for lost time, which would have imposed a serious hardship on the Commonwealth.  Because he expects the Pennsylvania Supreme Court to hear an appeal from his order well before the election, Petitioners, by contrast, will suffer no harm if the Supreme Court determines that he should have enjoined the law.

As Applied vs. Facial Challenge

Judge Simpson first noted that the law requires him to presume that any law passed by the legislature is constitutional unless and until a challenger meets the heavy burden of proving otherwise.  He then described the difference between a “facial challenge” and an “as applied challenge” to the constitutionality of a law:

“A statute is facially unconstitutional only where no set of circumstances exist under which the statute would be valid. Thus, a petitioner must show ‘the statute is unconstitutional in all of its applications.’   On the other hand, ‘[a]n as-applied attack … does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.’  Significantly, ‘as-applied challenges require application of the ordinance [or statute] to be ripe, facial challenges are different, and ripe upon mere enactment of the ordinance [or statute].’”

Because the Photo ID Law has yet to be enforced, Judge Simpson concluded that the Petitioners necessarily were bringing a facial challenge.  But, he concluded:

“Petitioners are unlikely to prevail on a facial challenge to Act 18, for several reasons. First, they do not acknowledge the extremely rigorous legal standard for facial challenges requiring a demonstration that there are no set of circumstances under which the statute may be valid. Indeed, they did not mention the legal standard at all, not in the pre-hearing brief, not in the opening address, not in the closing argument, and not in the post-hearing brief.  Worse, they do not indicate what evidence meets the standard. On review, it appears that the majority of the evidence offered by Petitioners may be appropriate to an ‘as applied’ challenge, because it relates to the impact of the law on specific individuals, but not to a facial challenge. . . . In short, Petitioners primarily proved an ‘as applied’ case, but they are seeking a ‘facial’ remedy. This legal disconnect is one of the reasons I determined that it is unlikely they will prevail on the merits.”

Standard of Review

After reviewing the case law analyzing the provisions of the Pennsylvania Constitution on which Petitioners based their claims, Judge Simpson conducted a detailed analysis of the federal and state case law to determine what standard of review applied to Petitioners’ challenge.  For anyone interested in the details of his analysis, the discussion spans pages 23-58 of the opinion.  In a nutshell, Judge Simpson:

“conclude[d] that the ‘strict scrutiny’ approach advocated by Petitioners is not the appropriate measure for this facial challenge. Instead, a more deferential standard should be employed.”

To determine the exact contours of that more deferential standard, Judge Simpson concluded that the standard the United States Supreme Court used in the Crawford case (the case challenging Indiana’s similar photo ID law) should apply here.   Specifically, quoting Crawford, Judge Simpson held that: “A facial challenge must fail where the statute has a ‘plainly legitimate sweep.’”  Judge Simpson noted that, even if this federal court standard did not apply in a Pennsylvania court, the Pennsylvania case law would require the application of a similarly deferential standard — the “gross abuse” standard.  That standard is derived from the case Winston v. Moore, 244 Pa. 447, 91 A. 520 (1914), in which the Pennsylvania Supreme Court held that: “[N]othing short of gross abuse [by the legislature] would justify a court in striking down an election law demanded by the people, and passed by the lawmaking branch of government . . . .”  Judge Simpson noted that “[t]his line of Pennsylvania authority distinguishes Pennsylvania from those states [Missouri and Wisconsin] that declared their respective voter ID laws unconstitutional on state constitutional grounds, utilizing a strict scrutiny analysis.”  Judge Simpson wrapped up this portion of his analysis with the following:

“In sum, the federal courts, and most state courts, do not employ a strict scrutiny analysis to assess the constitutionality of state voter ID laws. More importantly, this Court applies a very deferential standard to assess Election Code and voter qualification challenges. Despite the initial appeal of a strict scrutiny methodology based on the right to vote, there is no clear, relevant Pennsylvania authority to support that approach.”

Judge Simpson then went on to apply this deferential standard of review to Petitioner’s challenge to the Photo ID Law:

“I preliminarily conclude Act 18 has a plainly legitimate sweep. [C]onsidering the statute’s broad application to all Pennsylvania voters, it imposes only a limited burden on voters’ rights, and the burden does not outweigh the statute’s plainly legitimate sweep. My preliminary conclusions are consistent with those of federal and state courts rejecting facial constitutional challenges to voter ID laws.”

And, again, in a different portion of the opinion:

“Employing the federal ‘flexible’ standard discussed in Crawford in the context of a very similar state statute in Indiana, I reach the same conclusions the United States Supreme Court reached. Thus, the photo ID requirement of Act 18 is a reasonable, nondiscriminatory, non-severe burden when viewed in the broader context of the widespread use of photo ID in daily life. The Commonwealth’s asserted interest in protecting public confidence in elections is a relevant and legitimate state interest sufficiently weighty to justify the burden. Alternatively, employing a ‘substantial degree of deference/gross abuse’ standard referenced by our Supreme Court in Winston, and by this Court in Rogers, I cannot say that a constitutional violation is evident.  The burdens associated with Act 18 serve substantial interests to protect the integrity and reliability of the electoral process. The requirements of Act 18, while enhancing the procedural burdens associated with the voting process, are not sufficiently unreasonable. Petitioners do not offer any analysis based on this standard.”

Judge Simpson also concluded that, under  the “plainly legitimate sweep” and “gross abuse” standards, the varying requirements the law imposes on different categories of voters (for instance, absentee versus in-person voters) do not rise to the level of equal protection violations.

Notably, Judge Simpson concluded with the following:

“Nevertheless, the appropriate level of scrutiny raises a substantial legal question. Indeed, if strict scrutiny is to be employed, I might reach a different determination on this prerequisite for a preliminary injunction.”

This would appear to be Judge Simpson’s way of flagging the issue for the Pennsylvania Supreme Court and telegraphing that, if the Supreme Court determines that he applied the incorrect legal standard and sends the injunction request back to him for analysis under that more demanding standard, he well could reach a different conclusion on the question of whether Petitioners are likely to succeed on the merits of their claims.

Reasons for the Law

Judge Simpson mentioned the Stipulation by the Commonwealth that is aware of no evidence of in-person voter impersonation fraud and noted that “Respondents’ efforts to minimize these stipulated facts were not convincing.”  However, Judge Simpson continued:

“[I]n Crawford the United States Supreme Court upheld a nearly identical Indiana voter ID law despite the absence of any evidence of in person voter fraud occurring in that state.  Accordingly, I conclude that the absence of proof of in-person voter fraud in Pennsylvania is not by itself dispositive.”

Judge Simpson also:

“considered allegations of partisan motivation for Act 18 in general, and the disturbing, tendentious statements by House Majority Leader Michael Turzai to a Republican party gathering in particular. Ultimately, however, I determined that this evidence did not invalidate the interests supporting Act 18, for factual and legal reasons. Factually, I declined to infer that other members of the General Assembly shared the boastful views of Representative Turzai without proof that other members were present at the time the statements were made. Also, the statements were made away from the chamber floor. Legally, the United States Supreme Court stated in Crawford that ‘if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.’”

Article VII, Section 1

With respect to Petitioners’ argument that the Photo ID Law improperly adds to the qualifications to vote set forth in Article VII, Section 1, of the Pennsylvania Constitution, Judge Simpson held that:

“Act 18 does not attempt to alter or amend the Pennsylvania Constitution’s substantive voter qualifications, but rather is merely an election regulation to verify a voter’s identity. . . . [The Article VII, Section 1] claim has no merit whatsoever [and] Petitioners seemed to abandon this claim at trial.”

Closing

Judge Simpson closed with the following:

“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 evidence of facial unconstitutionality brought forth in the courtroom, tested by our adversarial system.”

Post-Trials Briefs and Closing Argument Transcript

The parties filed their post-trial briefs yesterday and today.

Petitioners’ Post-Trial Brief is here.

Respondents’ Post-Trial Brief is here.

In addition, you can find the transcript of the closing arguments (as well as the transcripts from every day of the hearing) here.

I hope to add some analysis of the arguments and briefs in the next few days.

UPDATE (8/10/12)

I reviewed the transcript of the closing arguments and the post-hearing briefs.  Here is a summary:

The Petitioners’ Closing

Witold Walczak, Legal Director for the ACLU of Pennsylvania, delivered the closing argument for the Petitioners.  The Petitioners are asking the Court to preliminary enjoin enforcement of the Photo ID Law.  To prevail on a request for a preliminary injunction, the party seeking the injunction must establish several factors.  Walczak walked through those factors in his closing as follows:

1)  The Petitioners must prove that they will suffer “irreparable harm” if the injunction is not granted, which means the harm they suffer cannot be compensated by money damages.  Or, put differently, Petitioners must show that the case is not about money.  Walczak claimed that Petitioners easily satisfy that factor:  “If they are not able to cast that vote, there’s no amount of money that’s going to replace that.”

2)  The Petitioners must prove that the relief requested will restore the status quo as it existed before the law.  Walczak explained that that is exactly what Petitioners are requesting here — they are asking the Court to order the Commonwealth to enforce the election laws as they existed before the Legislature passed the Photo ID Law.

3)  The Petitioners must prove that they are likely to succeed on the merits of their claims.  On this factor, Walczak argued that the Court must apply the strict scrutiny test  to the Photo ID Law.  First, Walczak characterized the Commonwealth’s argument that the right to vote is not a fundamental (and, therefore, that the strict scrutiny test does not apply) as “offensive” and “dead wrong.”   Walczak noted that, in the sole case on which the Commonwealth relies — Mixon v. Commonwealth — the Commonwealth Court held that felons do not have a fundamental right to vote.  He then distinguished that holding from the case at hand:

“It doesn’t says the right to vote is not fundamental. It says the right of felons to vote is not fundamental. That follows a long line of law, both in the Federal Courts and in the Pennsylvania courts, that felons have forfeited their right of the franchise by virtue of what they did. That is completely different. [Petitioners] are not felons and they should not be treated as such or held in that standard. There is no other case that the Commonwealth points to for the proposition that voting is not a fundamental right.”

Whatever test the Court applies, Walczak noted that the Commonwealth must establish that the law serves some purpose.  But, Walczak said:  “Not a single witness for the Commonwealth took that stand and testified as to why we need this law.  It so important because? There has been zero testimony about that.”

Walczak next argued that the Petitioners are likely to succeed on their claims because the law creates irrational distinctions between voters.  For instance, some voters (such as the Petitioners) must jump through hoops to obtain one of the “secure” IDs from PennDOT, while other voters (like absentee voters) need not.  Voters who live in nursing homes that agree to issue IDs will be able to easily obtain a non-secure ID acceptable for voting, while those who live in nursing homes that do not agree to issue IDs will have to jump through hoops to obtain a secure PennDOT ID.  Students at colleges that print expiration dates on their IDs will be able to use their non-secure student IDs to vote, while students who attend colleges that do not include expiration dates on their IDs will have to jump through hoops to obtain a secure PennDOT ID.  Walczak also used the hypothetical of a dog catcher in “Podunk Borough” who will be able to use his municipal employee ID to vote, while a veteran will not be able to use his VA card to vote because it does not contain an expiration date.  This disparate treatment of voters, Walczak argued, shows that the law is irrational.  In fact, according to Walczak, the law is so irrational that even if the Court applied one of the less stringent standards advocated by the Commonwealth (intermediate or even minimal scrutiny rather than strict scrutiny) the law still would not survive Petitioners’ challenge.

As for Petitioners’ claim that the Photo ID Law impermissibly adds an additional qualification to the voter qualifications set out in Article VII, Section 1 of the Pennsylvania Constitution, Walczak noted that the Petitioners are likely to succeed on that claim because the Secretary of the Commonwealth essentially conceded the point during her trial testimony:

“Your Honor heard from Secretary Aichele, and she kind of voluntarily added this on a question. She said for purposes of voting in Pennsylvania, you only need to be a resident 18 years of age or older or a citizen.  And then Mr. Gersch [one of Petitioners' attorneys] attempts to ask a question right, so you don’t need — and then she adds and now you need a photo ID because of the new law. I don’t think six lines could more clearly demonstrate that Pennsylvania has created a new qualification for people to be able to vote.”

4)  The Petitioners must establish that greater harm will result if the Court does not grant the injunction than if it does grant the injunction.  On this point, Walczak argued that, because the Commonwealth, pursuant to the Stipulation, offered no “evidence or argument that in person voter fraud is likely to occur in November 2012 in the absence of the Photo ID law,” it conceded that no harm will result if the Courts grants the injunction.  Petitioners, by contrast, will be harmed if the law is not enjoined and they are prevented from voting.  Therefore, Walczak concluded, the harm that will befall Petitioners if the injunction is not granted necessarily will outweigh the non-existent harm to the Commonwealth.

Walczak also discussed the extent of the harm that the law may inflict.  He noted that Petitioners’ expert, Professor Barreto, testified that approximately 1 million voters lack an acceptable ID.  Walczak noted that the Commonwealth did not rebut the results of Professor Barreto’s survey and, regardless, according to the Commonwealth’s own witnesses, somewhere between 500,000 and 1.4 million voters lack acceptable ID.  Walzcak also noted the trial testimony of election officials explaining how the law likely would wreak havoc at the polls.  Walczak summed up this portion of his presentation as follows:

“So Your Honor, on the harm, what we have shown on the Petitioners’ side of the scale is not only individuals, numbers of hundreds of thousands, maybe a million people under this law.  Plus the mess, the chaos on election day. And why? Why? For a law that we don’t really need because even if the Court issues the injunction, the Commonwealth has stipulated that it will not increase the danger of fraud.”

5)  Petitioners must show that the requested injunction is reasonably suited to cure the offending activity.  On this factor, Walczak argued that “we don’t see any remedy that would be effective that’s short of enjoining the entire law so the request is reasonably suited to the harm here.”

6)  Petitioners also must establish that the public interest will not be harmed if the injunction is granted.  On this point Walczak argued that:  “[T]he Commonwealth has already stipulated that if the injunction is granted, they will not argue that there’s going to be a problem with voter fraud. So the public interest also weighs in favor of the Petitioners.”

Other points:  With respect to the new voter ID card that the Commonwealth has announced it will soon make available, Walczak argued that “it is not a silver bullet” because it is not ready yet, there is no guarantee it will be ready in time for voters to obtain it before the election and the prerequisites to qualify for the card are burdensome.  In addition, Walczak noted that two of the petitioners do not have and will not qualify for any of the acceptable forms of photo ID, including the upcoming voter ID card, and therefore “definitely will not be able to vote” if the law is not enjoined.

The Commonwealth’s Closing

Senior Deputy Attorney General Patrick Cawley delivered the closing for the Commonwealth.  His overarching theme was that the photo ID law applies equally to everyone:  “Act 18 requires a photo ID of all voters and its language does not impose any special burden on any class of voters.”  Cawley also made the following points:

Arguing that “[t]he law is clear that we in Pennsylvania follow the federal standard when it comes to equal protection analysis,”  Cawley took the position that the analysis from the Crawford case (the case in which the U.S. Supreme Court rejected a challenge to Indiana’s photo ID law on federal equal protection grounds) should control here.

To prevail on their challenge to the constitutionality of the law, Cawley argued, the Petitioners must, but did not, “eliminate any and all legitimate interests that the legislature may have had when it enacted the challenge[d] statute.”  He repeated this same argument again later in his closing:  “[T]he Petitioners bear the burden to eliminate every imaginable valid purpose that the legislature may have had when it enacted Act 18.”

Cawley argued that several of the Petitioners will not be disenfranchised by the law once the Commonwealth starts issuing its new voter ID card:

“Petitioners Lee, Marsh, Applewhite, Bookler and Cuttino each testified that they lack either a birth certificate or a Social Security card, which are, of course, required to obtain a PennDOT ID. They all testified, however, that they know their Social Security numbers, that they have proofs of residence in the form of government benefit or utility bills and they have no trouble getting transportation to a PennDOT driver’s license center. For these Petitioners, the Department of State voter ID card will be available and will allow them to vote.”

Cawley argued that, given time, many of the hiccups in implementing the law will be ironed out:  “Unanswered questions will be resolved as both government and nongovernmental organizations work on implementing this law during the next three months.”

Cawley argued that photo ID laws “work . . . well to prevent multiple voting. If New York had a photo ID requirement, I suspect that Professor Minnite [one of the Petitioners' experts] would have a good deal of trouble voting there with her brand new New Jersey driver’s license.”  [On this point, Cawley is plain wrong.  With the exception of an a driver's license, none of the forms of photo ID acceptable under the law contain the voter's address.  So, for instance, a voter could use a passport as ID to vote in two states.  Therefore, contrary to Cawley's argument, the Photo ID Law will not prevent multiple voting.]

Cawley challenged the reliability of Professor Barreto’s survey by noting that, when the Commonwealth researched the PennDOT records to determine how many people in Pennsylvania lack photo ID, “they already accounted for more voters with ID than Professor Barreto says there are in Pennsylvania.”  Cawley also claimed that, because Professor Barreto works regularly with the ACLU and the Brennan Center and has testified against photo ID laws in other states, “he is not a neutral and unbiased academic.”  In addition, Cawley argued that:

“If widespread disenfranchisement had actually occurred in the states that have had photo ID requirements, like the one before this Court, since 2005, Professor Barreto would have told this Court about it. He did not. Because there had been no widespread disenfranchisement because of photo ID requirements.  What that should indicate to this Court is that it is highly unlikely that widespread disenfranchisement will occur in November. It hasn’t happened elsewhere. It won’t happen here.”

Cawley argued that granting an injunction will harm the public interest because it will disrupt the Commonwealth’s efforts to inform voters about and implement the law and will create confusion.

Cawley closed with the following:

“The Petitioners may make an emotional appeal may play well to the cameras or those untrained in the law. Pennsylvania law, however, does not support their request for a preliminary injunction, and their request must be denied.”

Petitioners’ Post-Hearing Brief

Petitioners made two main arguments in their post-hearing brief:

1)  The Commonwealth’s promise that it will made a voter ID card available to voters who lack a birth certificate and/or social security card is not sufficient to defeat Petitioners’ request for a preliminary injunction.  The Petitioners cited several cases for the proposition that a party cannot avoid an injunction by simply promising to fix the problem.  In any event, Petitioners argue, it is not at all clear that the proposed new voter ID card will actually fix the problem.

2)  The Commonwealth, in defense of the law, has argued that voters were not disenfranchised when Georgia enacted its photo ID law.  Petitioners point out that, unlike Pennsylvania, Georgia put its law in place over a longer time period and made it much easier for voters to obtain ID.

The Commonwealth’s Post-Hearing Brief

The Commonwealth makes three arguments in its post-hearing brief:

1)  Because “courts have not considered [voting] a fundamental right for purposes of weighing equal protection challenges to laws that have to do with the conduct of elections,” the Court should apply “no stricter scrutiny than the balancing test used by the United States Supreme Court in Crawford . . . .” or the rational relation test that some Pennsylvania courts have used when evaluating voting laws.

2)  The Court should find that the law serves a valid interest because (a) the Crawford Court held that photo ID laws serve a valid state interest; and (b) the Legislature heard evidence that photo ID laws serve a valid state interest in the hearings leading up to the law.

3)  Enjoining the law will disrupt the Commonwealth’s efforts to implement it smoothly.

The Commonwealth also attached to its brief a chart showing the identification requirement for various assistance programs, but I fail to see how the chart advances the Commonwealth’s argument.  The chart shows that each program accepts forms of ID that cannot be used to vote under the Photo ID Law:

• To obtain Temporary Assistance for Needy Families, General Assistance, or a State Blind Pension, the following IDs, among others, are acceptable:  a social security card, selective service card or voter registration card.  None of those IDs can be used to vote.

• To qualify for the Supplemental Nutrition Assistance Program, the following IDs, among others, are acceptable: a social security card, selective service card, voter registration card, pay stub, library card, mail delivered by the postal service, ID issued by a public housing authority, ID issued by a social welfare agency or contact with a third party who can identify the client.  None of those IDs can be used to vote.

• To qualify for Medical Assistance, an applicant must show one of numerous forms of ID set forth in this federal regulation, many of which cannot be used to vote.

• No ID is required to apply for the low-income home energy assistance program or the state supplemental payment program.

Two additional amicus briefs were filed after closing arguments.  One by the Pennsylvania Senate Democratic Caucus, arguing that the Petitioners have satisfied the requirements to obtain a preliminary injunction, and one by a poll worker arguing that the Photo ID Law subjects poll workers to potential criminal liability.

UPDATE (8/13/12):  Chelsa Wagner, the Allegheny County Controller, also filed an amicus brief.  The brief notes that, even if you estimate conservatively the number of voters in Allegheny County that lack ID, it is likely that tens of thousands of voters will show up at the polls without ID and will have to submit provisional ballots.  The County will be forced to hire many additional workers to process all of those ballots within 20 days of the election, as required by the Election Code.  Wagner argues that: “The cost of implementing the Voter ID Law statewide has been estimated at more than $10 million dollars, with no aid coming from the state.  Essentially, the Commonwealth has created an unfunded, and unbudgeted for, mandate that will cost taxpayers millions of dollars to cure a problem that they admit does not exist.”

AFL-CIO and SeniorLAW Center Amicus Briefs

Two additional amicus briefs were filed in support of the challenge to the Photo ID Law:

AFL-CIO:  The AFL-CIO’s amicus brief mirrors the Petitioners’ general legal arguments, but contains some interesting nuances.  Specifically:

(a) The Commonwealth appears to be putting most of its eggs into the “Crawford basket.”  In other words, the Commonwealth is arguing that it need not provide evidence that in-person voter impersonation fraud actually happens because the United States Supreme Court, in Crawford, held that such evidence was not necessary to prove that photo ID laws serve a legitimate purpose.  Presumably in response to that argument, the AFL-CIO relies heavily on Commonwealth v. Edmunds.  In Edmunds, the Pennsylvania Supreme Court held that, in a case such as this one, where the Pennsylvania courts are asked to interpret only provisions of the Pennsylvania Constitution, the courts are not bound by the decisions of the United States Supreme Court but rather must conduct an independent analysis of the Pennsylvania constitutional issues.  In short, the AFL-CIO is arguing that the Court should simply ignore the Crawford case.  The AFL-CIO then, for good measure, also distinguishes Crawford (footnote 8).

(b) The AFL-CIO discusses in detail the cases in which courts in Missouri and Wisconsin struck down photo ID laws in those states, and explains the similarities between those cases and this case.

(c) The AFL-CIO also puts the Photo ID Law in historical perspective by discussing the history of Pennsylvania’s Constitution and noting that the Commonwealth was a trailblazer in expanding the right to vote to all citizens, thereby making the government responsive to the popular will.  It then concludes:

“Now the General Assembly has taken the abhorrent step of enacting a statute which attempts to reverse over two hundred years of Pennsylvania political and constitutional history and whose effect and purpose is to disenfranchise hundreds of thousands of Pennsylvanians.  The notion that a Legislature, created through the sovereign will of the people by the adoption of a state constitution, could turn around and diminish the people’s right to vote is preposterous.  It assumes that a Legislature may destroy the very thing that made its existence possible, and that it may amend the state constitution by mere statute.

It is this rich tradition of popular sovereignty in our Commonwealth that should guide this Court to the conclusion that the Pennsylvania Constitution does not permit what the Legislature with the Governor’s signature sought to achieve.”

SeniorLAW Center:  The SeniorLAW Center, along with the AARP and several other groups that serve the interests of older voters also filed an amicus brief in support of Petitioners’ challenge to the Photo ID Law.  The brief provides statistics indicating that the Photo ID Law may disproportionally burden elderly voters because they lack photo ID at higher rates than other segments of the population and are the least capable of traveling to get one.  Noting that there are more than 9,000 polling places in Pennsylvania but only 71 Drivers License Centers, the SeniorLAW Center concludes that “each trip to the Drivers License Center will be drastically more of a burden than the trip to the polling place because of the limited number and less accessibility of the Driver License Centers.”

The SeniorLAW Center also suggests that the Commonwealth’s proposed new voter ID card may not be a workable solution for many elderly voters.  According the Commonwealth, while voters will not need to show a birth certificate to obtain one of the new voter ID cards, they still will have to provide two documents proving residence.  The SeniorLAW Center notes, though, that:

“[A]pproximately 188,700 Pennsylvanians 65 years or older live in a household in which they are not the owner or tenant of the household and are not married to the owner or tenant.  This population will not have a mortgage or lease to present as documentation of their residency.  Likely for the same reason, they will not have utility bills in their name.  Although a W-2 would be acceptable in lieu of a mortgage, lease or utility bill, 84.3% of Pennsylvanian 65 years or older are out of the labor force.”

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.

Reaction to Intervenors’ Preliminary Objections (Part II) — Isn’t It A Bit Early For Crawford?

Intervenors’ preliminary objections cite repeatedly to the Supreme Court’s opinion in Crawford v. Marion County Election Board.  The intervenors’ heavy reliance on Crawford at this stage of the proceedings is perplexing.

In Crawford, the Indiana Democratic Party sued in federal court to strike down Indiana’s photo ID law, alleging that it violated the Fourteenth Amendment of the U.S. Constitution.  In the trial court, the parties took discovery, after which the state moved for summary judgment.  In a summary judgment motion a defendant essentially says:  “Taking into account all of evidence developed during discovery, no reasonable jury possibly could conclude that the plaintiff is entitled to the relief it is seeking.”   The trial court granted the motion for summary judgment, and the Seventh Circuit Court of Appeals affirmed that decision.

The Supreme Court also affirmed.  Notably, though, the Court specifically and repeatedly stated that it affirmed because the plaintiff had failed to develop sufficient evidence to support its case during discovery.  For instance, the Court made the following statements:

• “We are . . . persuaded that the District Court and the Court of Appeals correctly concluded that the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute . . . .”

• “[O]n the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters” — those who “cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office after voting” — “or the portion of the burden imposed on them that is fully justified.”

• “[T]he evidence in the record does not provide us with the number of registered voters without photo identification.”

• “[T]he deposition evidence presented in the District Court does not provide any concrete evidence of the burden imposed on voters who currently lack photo identification.”

• “[S]everal of these [plaintiffs] . . . have not indicated how difficult it would be for them to obtain a birth certificate.”

• “From this limited evidence we do not know the magnitude of the impact [the Indiana photo ID law] will have on indigent voters in Indiana.”

• “In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters.”

Based on these comments, one conclusion seems inescapable:  If the plaintiffs in the Crawford case had developed a sufficient factual record to support their claims, the Court would have at least considered whether those facts supported plaintiffs’ constitutional challenge to the law.

Here, by submitting preliminary objections, the intervenors are asking the Commonwealth Court to dismiss the Applewhite case before petitioners even attempt develop, through the discovery process, the factual record necessary to support their claims.  To the extent intervenors are relying on Crawford, their request seems premature.