Pennsylvania Supreme Court faces key question on voter ID appeal

Posted: September 12, 2012

Many opponents of the state's voter ID law, like Bea Bookler of Devon, were shocked when Commonwealth Court Judge Robert E. Simpson Jr. upheld the law in a ruling last month.

"My first reaction was unprintable," Bookler, 94, one of the plaintiffs trying to get the law overturned, said in a telephone interview. "My second reaction was to get in bed and say I don't want to be alive in a world where people are prevented from voting."

While Simpson turned down a bid to stop the new voter ID requirements from taking effect with the Nov. 6 election, his opinion made clear that the judge was looking over his shoulder to an appeal in the state Supreme Court, however he ruled.

Simpson himself teed up what could be the a major point of contention facing the six Supreme Court justices when they hear that appeal Thursday in their Philadelphia courtroom on the fourth floor of City Hall.

The issue: What level of judicial scrutiny should be applied to the legislature setting new, more stringent rules for potential voters showing up at their polling places? A relatively flexible standard, deferring to the legislature's authority to set the rules for running Pennsylvania elections? Or a strict standard, recognizing the right to vote as a fundamental civil right and putting a burden on the state to justify any new laws that might interfere with individuals trying to vote?

"[T]he appropriate level of scrutiny raises a substantial legal question," Simpson said in his opinion. "Indeed, if strict scrutiny is to be employed, I might reach a different determination on this prerequisite for a preliminary injunction."

In legal briefs filed with the Supreme Court in advance of Thursday's hearing, supporters and opponents of the voter ID law provide sharply different answers to that question.

"Voting is a fundamental right," argues the appeal brief filed by David P. Gersch of the Washington law firm Arnold & Porter L.L.P., representing opponents of the law along with the American Civil Liberties Union, the Public Interest Law Center of Philadelphia, and the Advancement Project.

"The challenged law imposes significant burdens on the exercise of that right," Gersch's brief continues. "The law must be assessed with strict scrutiny, under which it cannot survive a constitutional challenge because it is not narrowly tailored to service any compelling Commonwealth interest."

But the State Attorney General's Office and the Philadelphia law firm Drinker Biddle & Reath L.L.P., representing the Corbett administration, defended the law in separate legal briefs, saying that Simpson properly interpreted the law as an appropriate exercise of the legislature's authority over elections.

"[T]he appellants have mischaracterized what is at issue by describing the statute as if it were an assault on the fundamental constitutional right to vote. It is not," said the Drinker brief, submitted by Alfred W. Putnam Jr. and D. Alicia Hickok.

"The statute does not disenfranchise any class of voters; it merely tightens the voter identification requirements applicable to all voters in order to increase public confidence that only legally registered voters are voting."

They continued: ". . . What is at issue in this case is a policy judgment about the degree of security appropriate to protect a constitutional right, and it is for the General Assembly to make that policy judgment. The Commonwealth Court was right not to apply strict scrutiny."

When Republican lawmakers and the Corbett administration were pushing the voter ID bill through the State House and Senate in March, they contended it would help ensure the integrity of state elections. "The requirement of a photo ID is a tool to detect and deter voter fraud," the state said in June, at the outset of the court case.

The state conceded there have been no recent investigations or prosecutions in Pennsylvania against anyone for trying to impersonate a voter.

Simpson took note of that stipulation, as well as a statement by House Majority Leader Mike Turzai (R., Allegheny) telling a Republican State Committee gathering that the new voter ID law would allow the GOP's presidential candidate, Mitt Romney, to win Pennsylvania.

"Ultimately, however, I determined that this evidence did not invalidate the interests supporting Act 18 [the voter ID law]," Simpson ruled, citing a U.S. Supreme Court decision that upheld a similar voter ID law in Indiana despite a similar absence of proven in-person voter fraud in that state.

There are no reliable figures on how many Pennsylvania voters will be required to obtain photo IDs because of the new law. Even state officials acknowledge the number will run into the tens of thousands, many of whom are elderly and unable to drive, since having a driver's license would meet the law's requirements.

The State Attorney General's Office, which successfully defended the law in the Commonwealth Court case, said in its Supreme Court brief that the election code covered an assortment of topics, "as diverse and sometimes minute as the dates for elections, the time and place of voting, the requirements for getting on the ballot, the manner of presenting ballot questions, the way votes are casts and counted, and the way of establishing that a voter is legitimate."

"Even though these regulations can be thought of as 'burdening' or even denying the vote to somebody, they have not, for obvious reasons, been subject to strict scrutiny. Rather, courts have always extended a substantial level of deference to those legislative judgments."

The law requires would-be voters in November to show poll workers a specified form of photo ID: either a Pennsylvania driver's license, a PennDot-issued nondriver ID, a U.S. passport, U.S. military ID, government employee ID, or photo ID with an expiration date from an accredited Pennsylvania college or licensed care facility.

Just before Simpson opened hearings, state election officials announced that PennDot would issue a new form of free photo ID, good for voting purposes only, for registered voters who can provide their birth dates, Social Security numbers, and evidence of their current address, such as utility bills.

There is no time frame for the Supreme Court to decide the case, but a ruling would be meaningless if delayed until past the November election.


Contact Bob Warner

at 215-854-5885 or warnerb@phillynews.com.

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