I took the day off from work on Wednesday and went to Harrisburg to watch the opening arguments in the hearing on Petitioners’ request to preliminarily enjoin the Photo ID Law. Here is what I see as the highlights:
Judge Simpson opened up the session by noting that a key legal issue in the case is the level of scrutiny that the Court must apply to the Photo ID Law. As the Judge put it, he will need to decide whether to apply a “more robust” level of scrutiny, or whether he must largely defer to the Legislature. He has not yet decided that legal issue, but noted that he is working on it. Judge Simpson also discussed timing. The hearing is expected to continue through next Friday. At the end of the hearing, the parties will have 5 days to submit whatever additional briefing they wish to submit. Judge Simpson anticipated that he would issue his opinion sometime the week of August 13. Judge Simpson acknowledged that, no matter what he decides, a lot of people are going to be very angry with him. He said not to despair because he will not be the final word in the matter, but rather a way station on the way to the Pennsylvania Supreme Court.
Highlights from Petitioners’ Opening Statement: David Gersch, of the Arnold & Porter law firm, delivered the opening statement for Petitioners. Gersch started by pointing out that, if the election took place today, several of the Petitioners would not be able to vote. He noted that these petitioners are not alone, but rather that their stories are typical of a substantial number of voters in the state.
With respect to the repeated suggestion by supporters of the law that everyone has photo ID, Gersch responded that “nothing could be more wrong.” Petitioners’ expert, Professor Barreto, will, Gersch said, show that more than 1 million registered voters in Pennsylvania do not currently have one of the approved forms of photo ID under the law. He noted that the Commonwealth’s original estimate that only 89,000 Pennsylvanians lacked the necessary ID was a rushed, back-of-the-envelope guess, and that when the Commonwealth actually performed a study to check the numbers, it concluded that 759,000 registered voters in the state do not have a PennDOT ID . Gersch also noted that, although the 759,000 figure was widely publicized, another aspect of the study was not. The Commonwealth also concluded, but did not publicize, that an additional 600,000 registered voters in Pennsylvania have a PennDOT ID that will be not be acceptable photo ID in November because they will be more than 12 months expired. Therefore, Gersch concluded, the Commonwealth’s own numbers indicate that as many as 1.3 million registered PA voters do not have a PennDOT ID that they will be able to use to vote in November. Gersch also noted that Professor Barreto will testify that fewer than 1% of that group of voters has one of the other forms of approved photo ID under the law.
Gersch next focused on what he described as “irrational distinctions” in the law. For instance, Pennsylvanians who live in nursing homes need not jump through all of the hoops to obtain a nursing home photo ID card that a voter seeking to obtain a PennDOT photo ID card must. Gersch also noted that the nursing home ID card template that the Commonwealth sent to care facilities in the state (an 8.5″ x 11″ piece of paper onto which a photo can be stapled) is so simple that his “11-year-old could mock one up” in no time. Gersch also discussed another “irrational distinction” created by the law: Absentee voters need not satisfy the “rigors” that his clients must to obtain a photo ID card because absentee voters need only provide the last four digits of their social security number, and not a photo ID, when they apply for an absentee ballot.
Gersch next discussed the new voting-only photo ID card with relaxed documentation requirements (no birth certificate or social security card necessary) that the Commonwealth announced it would create last week. First, Gersch noted that documents Petitioners obtained from the Commonwealth in discovery show that, not long after the Petitioners filed their lawsuit, “the Commonwealth came to an understanding that it could not sweep this case under the rug” and its lawyers urged PennDOT to do something to help salvage the law. The new voter-only photo ID card is the solution they devised. Gersch argued that the Commonwealth may not use this last-minute effort as a basis to avoid the entry of an injunction because this new ID does not yet exist and, as Judge Simpson held in a prior case involving TAP Pharmaceuticals, a party may not avoid the entry of an injunction by making promises (I assume Gersch was referring to this case).
Gersch next discussed the rationales for the Photo ID Law advanced by the Commonwealth. With respect to the first supposed rationale — deterring voter fraud — Gersch projected onto the large screen set-up in the courtroom the Commonwealth’s Stipulation that there is no evidence of in-person voter impersonation fraud. Gersch claimed that the Commonwealth was forced to enter into the Stipulation when it became clear during discovery that in-person voter impersonation fraud does not exist. In his 30 years of practicing law, Gersch never has had an opponent make a concession as vast as the Stipulation.
Gersch characterized the Commonwealth’s fall-back rationale for the law — to increase voter confidence in elections — as a placebo. It only makes voters “feel better” if they do not understand the truth — that there is no in-person voter-impersonation fraud. If I may take the liberty of expanding Gersch’s analogy: The doctor (the Commonwealth) has incorrectly diagnosed the patient (the election system) with a disease (in-person voter impersonation fraud), and then has prescribed a placebo (the Photo ID Law) to treat the non-existent disease.
In any event, Gersch concluded, these supposed rationales for the law are mere pretexts. As the straight party-line vote for the law and Representative Turzai’s comments (that the Photo ID Law would allow Gov. Romney to win Pennsylvania in November) show, the purpose of the law is the pursuit of political advantage for the controlling party.
Highlights from the Commonwealth’ Opening Statement: Patrick Cawley, Senior Deputy Attorney General, delivered the opening statement for the Commonwealth. Cawley opened by saying that the hearing was about the prevalence of photo ID cards. Petitioners, Cawley argued, will be unable to show that a law asking them to adhere to a “common requirement of modern life” — showing photo ID — when they vote will cause them irreparable harm (one of the things a party seeking a preliminary injunction must show). Cawley said that the purpose of the hearing was not to determine whether the Photo ID Law is a good idea or even necessary. Rather, Cawley argued, if the Legislature “could imagine” a legitimate purpose for the law and the law reasonably relates to that purpose, the Court may not strike it down.
Cawley then addressed the Stipulation. He claimed that he entered into the Stipulation on behalf of his clients, the Respondents in the case (the Commonwealth, Governor, and Secretary of State) because whether or not his clients possess evidence of voter impersonation fraud is irrelevant. What matters, Cawley said, is what the Legislature thought. And since the Legislature is not a Respondent, Cawley said, the Stipulation does not speak for the Legislature. For all Cawley knows, the Legislature may well have been aware of evidence of voter impersonation fraud, but it would be improper to “re-engage in the Legislative process” by debating the Legislature’s basis for the law.
Cawley next suggested that it is not irrational to permit those who attend college or live in nursing homes to use ID cards from those institutions while requiring others to navigate through PennDOT’s procedures for obtaining an ID. Before they will issue an ID card, colleges and nursing homes, Cawley argued, require their students/residents to provide even more information than PennDOT requires. As Cawley put it, colleges and nursing homes have security concerns and will not just hand out ID cards willy-nilly.
Cawley argued that the number of people who do not have a photo ID today is irrelevant because they have plenty of time to get one before the election.
With respect to the new voting-only ID cards, Cawley said that they are not a mere promise. Rather, the state already hired a contractor to begin printing them. Due to these efforts by the Commonwealth to “remove hurdles” that people like the Petitioners (who Cawley characterized as “worst-case scenarios” purposely selected by the institutional petitioners and their lawyers) have faced when attempting to obtain a PennDOT ID, Cawley concluded by asking the Court to find that “nothing could be more rational than requiring voters to show ID.”
As a side note, Cawley did damage his credibility at one point in his opening. When giving examples of the many situations in which people are required to show ID as part of “modern life,” Cawley said that photo ID is required to enter this and every other courthouse. That simply is not true. When I entered the courthouse Wednesday morning, I had to pass through a security checkpoint with a metal detector, but I was not asked to show ID. Indeed, when Cawley made this statement, I noticed many people sitting in the crowded gallery turn to one another with quizzical expressions because no one had been asked to show a photo ID when they entered the courthouse. When questioning a witness later in the afternoon, one of the Petitioners’ lawyers made this point on the record by having the witness testify that she was not asked to show ID when she entered the building. At first, I couldn’t figure out how Cawley made such a glaring error — didn’t he come in through the same security checkpoint that I and everyone else had? On the way out of the building, I may have found the answer. There appeared to be a separate entrance (with no security checkpoint) for people who possessed government or Court IDs. So, I speculate that Cawley, who is a government employee, entered through that separate entrance and simply assumed, incorrectly, that the people who entered through the main entrance were required to show photo ID.
General Impression From the Questioning of Witnesses: After opening statements, Petitioners began to call witnesses. From that questioning, I gleaned the strategy that each side is going to pursue. The Petitioners spent a great deal of time putting on evidence showing that, for some, obtaining a birth certificate (which is required to obtain a PennDOT photo ID card) is incredibly difficult if not impossible. In other words, Petitioners are ignoring the new voting-only photo ID card announced by the state last week (which does not require voters to provide a birth certificate) and proceeding with the case they would have tried had the Commonwealth not announced the new card. On cross-exam, the Commonwealth basically asked each witness the same three questions: (1) You can get to your polling place, right?; (2) You can get to a Driver’s License Center, right?; and (3) You know your social security number and have documents proving your place of residence, right? The witnesses answered each of these questions in the affirmative. So the Commonwealth is going to argue that every Petitioner and every witness possesses the wherewithal, information and documents necessary to obtain the newly announced voting-only ID card, meaning no one will be disenfranchised. Whether Judge Simpson lets these new ID cards factor into his analysis, then, may play a significant role in the outcome of Petitioners’ request for a preliminary injunction.