The opinion is available here:
I will post a summary when time permits.
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.
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.
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).
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.”
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.”
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.
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.”
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.
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.'”
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.”
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.”