On August 30, Petitioners filed a brief in their appeal to the Pennsylvania Supreme Court from Judge Simpson’s denial of their request to enjoin enforcement of the Photo ID Law.
In his decision, Judge Simpson noted that “Petitioners raised a substantial question as to the level of scrutiny to be applied,” but concluded that Petitioners “failed to persuade me that they will prevail on the merits” of their claims. Petitioners latched onto Judge Simpson’s holding that the proper level of scrutiny is a “substantial question,” and used that holding as the foundation for their argument on appeal.
Specifically, a party seeking an injunction normally must demonstrate, among other things, that he is likely to prevail on the merits of his claim. Petitioners, however, note that the Pennsylvania Supreme Court has held that where “substantial legal questions must be resolved to determine the rights of the respective parties,” the petitioner need not show that he is likely to prevail on the merits of his claim, but rather only must show that: (1) “the threat of immediate and irreparable harm . . . is evident” (2) “the injunction does no more than restore the status quo” and (3) “the greater injury would result by refusing the requested injunction than granting it.” See Fischer v. Department of Public Welfare. Petitioners argue that they satisfied all three factors required under Fischer:
- With respect to factor No. 2, Judge Simpson held that the injunction would do no more than restore the status quo.
- With respect to factor No. 1, Petitioners argue that Judge Simpson incorrectly held that “immediate and irreparable harm” must be harm that is “inevitable.” Petitioners contend that “immediate and irreparable harm” means harm that is “imminent,” and cite to several cases in which the Pennsylvania Supreme Court found that a showing of possible imminent harm — not inevitable harm — is sufficient to satisfy factor No. 1. Petitioners contend that, even under Judge Simpson’s own estimate of the number of voters in Pennsylvania who lack photo ID, a substantial number of voters will be disenfranchised by the Photo ID Law. Therefore, contrary to Judge Simpson’s conclusion, Petitioners did establish the threat of “immediate and irreparable harm.”
- As for factor No. 3, Petitioners note that Judge Simpson punted on the issue. Judge Simpson held that the Commonwealth would suffer the greater injury if he enjoined the law before the appeal was decided because, had the Supreme Court reversed an injunction, the Commonwealth would have had little time to complete preparations to implement the law, whereas no one would vote before the appeal was resolved. The Supreme Court, however, now must address the issue that Judge Simpson did not — whether greater injury will result if the law is not enjoined before the next election. On that issue, Petitioners argue, there is no question that the harm to voters will outweigh any harm to the Commonwealth. Voters who do not have and cannot obtain an acceptable photo ID will be disenfranchised. By contrast, the Commonwealth, having stipulated that there is no evidence that in-person voting fraud will occur in November if the Photo ID Law is enjoined, will suffer no injury if the Court enjoins the law.
As for what level of scrutiny Judge Simpson should have applied, Petitioners contend that the answer to that question rests on whether the constitutional right allegedly infringed is a fundamental right. Petitioners note that Judge Simpson dodged this question entirely, never saying whether the right to vote is a fundamental right. Petitioners argue that the right to vote is as important as, if not more important than, the right to free expression, which the Pennsylvania Supreme Court repeatedly has held is a fundamental right that must be analyzed under the strict scrutiny standard of review. For instance, the Pennsylvania Supreme Court has held that government restrictions on expressive conduct such as nude dancing must be analyzed under the strict scrutiny standard. If laws regulating nude dancing must be analyzed under the strict scrutiny standard, how can laws regulating voting possibly be analyzed under any lesser standard? Petitioners then explain how the cases cited by Judge Simpson for the proposition that laws impacting the right to vote are subject to a lesser standard of review are distinguishable from the case at hand.
The Petitioners also explain that, even if they were required to prove that they are likely to prevail on the merits of their claims, the evidence they presented at trial did so.
The Commonwealth’s response to Petitioners’ appellate brief is due on September 7.