Karen Heller: Counting the votes ... in court

Union members (from left) Denise Sharper, Jacqueline Coles, and Karmella Sams at a rally Thursday across from City Hall, where the state Supreme Court met.
Union members (from left) Denise Sharper, Jacqueline Coles, and Karmella Sams at a rally Thursday across from City Hall, where the state Supreme Court met. (MICHAEL BRYANT / Staff)

Justices' every word in the photo ID case is seen through an election lens.

Posted: September 17, 2012

How fitting that the state Supreme Court heard arguments Thursday on Pennsylvania's punitive voter ID law in Philadelphia, and how striking that the city was barely mentioned during oral arguments, except as the birthplace of our democracy and the nation's oldest appellate court.

Because, make no mistake, though lawyers literally talked geographic circles around the commonwealth's largest city - mentioning rural counties without PennDot offices and others with limited hours - this law disenfranchises the poor, young, elderly, and people of color of Philadelphia, discouraging Obama voters from four years ago from returning to the polls in November. My concern is the law will deter people from even trying to vote.

The law is the Republican-controlled legislature's attempt to make Philadelphia irrelevant on Election Day, and its swift passage and enforcement in a presidential election year is a purely cynical and political move.

So observers in the ornate City Hall courtroom looked for clues as to how the justices may vote. How could they not? Pennsylvania's Supreme Court is one of only seven in the nation where candidates run on partisan lines. The court is evenly split between three Republicans and three Democrats.

"What's the hurry?" asked Justice Seamus McCaffery, the sole person who brought up House Majority Leader Mike Turzai's claim to state Republicans that the law would "allow" Mitt Romney to win Pennsylvania.

It was at this point that NAACP national president Benjamin Jealous asked me about the judge, "Is he. . .?"

"Yes, a Democrat," I answered.

"Could there be politics, maybe?" McCaffery asked of the law's quick enforcement to a packed room, inviting a rare interlude of laughter.

"How much better could we do to implement the law in two years?" Justice Debra McCloskey Todd asked. "What's the rush? What's the rush?"

Todd is a Democrat, too.

When making crucial legal decisions, six is a lousy number, a situation that has been true of the high court since May. That's when Joan Orie Melvin, of the scandal-tinged Pittsburgh Ories, was suspended after being charged with nine criminal counts that she used judicial staff for campaign reelection work. So politics has directly affected this court, too.

"Six is a catastrophe," said Duquesne law professor Bruce Ledewitz, an authority on the state Supreme Court. "The people of Pennsylvania deserve a seven-person court. It's ridiculous that this case might be decided on a 3-3 split."

With a tie, the court of last resort would not be one. In that instance, Commonwealth Court Judge Robert E. Simpson's ruling upholding the law would become the final word for this election.

As for politics, "the U.S. Supreme Court is much more partisan than the Pennsylvania Supreme Court. This wasn't the court that decided Bush v. Gore," Ledewitz noted. "I don't think justices will uphold this law because it will help the Republican Party. On the other hand, we don't belong to political parties for no reason."

Politics was everywhere in the courtroom, and to say otherwise would be foolish. Members of the packed, standing-room gallery booed when chief deputy attorney general John G. Knorr 3d told the court: "Most people can get photo IDs quite easily."

Todd challenged Knorr's assertion that any voter rejected for inadequate ID could cast a provisional ballot and then obtain the proper card within six days, given that PennDot will be closed two of those days. "It sounds a little bit like a nightmare," Todd said.

The Democratic justices stressed the state's admission that there has been no evidence of in-person voter fraud. An exasperated J. Michael Eakin, a Republican, insisted that "there will always be fraud. There was fraud since George Washington ran and there will be fraud in 200 years." There wasn't - Washington was unanimously chosen twice by the Electoral College - but that's clearly his view.

Attention centered on the three Republican jurists who remained relatively quiet during the debate. Some found it significant that Republican Justice Thomas Saylor introduced a new wrinkle in a law that has plenty of them: whether PennDot could comply before Nov. 6 with the provision of issuing a nondriver photo ID card - frankly, a far more useful document - to any registered voter swearing it's necessary for voting. Knorr, to the surprise of many, admitted that the agency could not fully comply.

Chief Justice Ronald Castille, the former Philadelphia district attorney, spoke little during the almost hour and a half of arguments, though his decision is widely viewed as mattering most. (That is, until Saylor raised the ID issue.) That's because in January, he stunned court followers by breaking with fellow Republicans to send the Republican-engineered redistricting map back to the legislature.

The court is expected to issue its decision soon. President Obama leads in Pennsylvania polls by an average of almost 8 points, though, as always, it's worth noting that nobody votes in September. The election is seven weeks away, and to enforce the voter ID law before then remains punitive, obstructionist, and wrong.

As Justices McCaffery and Todd rightly asked: What's the rush?

Contact Karen Heller

at 215-854-2586 or kheller@phillynews.com, or follow on Twitter at @kheller.

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