Ruling upholding Pennsylvania's voter ID law misplaced its sympathy

Posted: August 17, 2012

A week ago I wrote that the state's voter identification law had proven in Commonwealth Court to be morally indefensible.

Well, morality doesn't seem to have much to do with the law, at least so far as Judge Robert E. Simpson Jr. was concerned. "I do not have the luxury of deciding this issue based on my sympathy for the witnesses or my esteem for counsel," he wrote in an opinion released Wednesday that upheld the voter ID requirement. "Rather, I must analyze the law, and apply it."

But what's been missing from the entire voter ID debate isn't sympathy, it's empathy. And it appears that Simpson - like a majority of the public - can't shake the mistaken assumption that most everyone who's legit already has ID, and that it's not a big deal for those people without to get one.

Photo ID to vote, Simpson wrote, "is a reasonable, nondiscriminatory, non-severe burden when viewed in the broader context of the widespread use of photo ID in daily life."

No doubt valid photo IDs are widely used in Simpson's social and professional circles. But his daily life bears little resemblance to the existence of many low-income Philadelphians who - not owning cars or judicial robes, and lacking the funds to travel by plane - have far less need for current state-issued photo ID than do the likes of Simpson.

And his finding that the law is "nondiscriminatory" is baffling in light of the state's own data, which show that there are far higher concentrations of voters without eligible ID in heavily minority voting districts, many of which are in Philadelphia.

Just as odd is Simpson's unexplained faith in the ability of state officials to issue IDs en masse and educate the public about the law before the Nov. 6 presidential election. Was Simpson not listening when Carol Aichele - the state's top voter ID official - said, under questioning from plaintiffs' attorneys, "I don't know what the law says"?

Indeed, Simpson seemed more worried about the sad plight of state officials in this whole episode than of those voters in danger of losing their ability to exercise one of citizenship's most fundamental rights.

Consider poor Jonathan Marks, who oversees administration of elections for the state. In court, Marks was asked how an injunction against voter ID would disrupt his planning. Marks responded equivocally.

A normal person might assume that not enacting sweeping change would be the easy way to go. But Simpson chose instead to peer into Marks' soul for the real answer. "Everyone in the courtroom could see his reaction: alarm, concern, and anxiety at the prospect of an injunction," Simpson wrote in his opinion. "His demeanor tells the story."

His demeanor? If only Simpson had managed to extend such empathy to the plaintiffs.

And yet this ruling is not particularly surprising. Getting an injunction against a law that hasn't taken effect is extraordinarily difficult. Plaintiffs seeking relief in such cases have the burden to prove, as Simpson put it, that the legislation "clearly, patently, and plainly violates the constitution of the commonwealth. On top of that, well-established law requires plaintiffs in such cases to show that the statute is unconstitutional in all of its applications" (my italics).

That's a high legal bar to clear and there's no compelling reason to think the state Supreme Court will decide that Simpson was wrong on the legal merits.

So what now?

Apart from the appeals, two options are left for voter ID opponents: a stepped-up campaign to get voters into PennDot licensing centers, and civil disobedience.

A number of low-level election officials have said they would not enforce the voter ID law. And it's certainly hard to imagine legions of community poll workers demanding to see the papers of neighbors they've known for decades and tossing them out if they're unable to show valid ID. But there probably will be less opportunity to flout the new law than many think.

State election law gives the big political parties the right to send two poll watchers to every voting station.

If Pennsylvania looks remotely competitive in the presidential election, you can probably depend on the Republican Party making sure its representatives keep a close eye on precincts in heavily Democratic African American and Latino districts, where voter ID problems are more likely to be common. And you can bet the GOP poll watchers will have the Attorney General's Office on speed dial.

"If Pennsylvania is in play, this is going to be a very emotionally charged election in Philadelphia," predicted Democratic City Commissioner Stephanie Singer, one of three elected officials who oversee voting in the city.

But at least Jonathan Marks won't be inconvenienced.


Patrick Kerkstra is a freelance journalist and former Inquirer staff writer. He can be reached at Patrick@PatrickKerkstra.com, or on Twitter @pkerkstra.

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