Thursday, August 16, 2012

Voter ID: Reviewing the ruling, and our next steps.

UPDATE: Listen to Vic Walczak, ACLU-PA's Legal Director, talk about the voter ID case with Radio Times host Marty Moss-Coane.

It's been a little more than 24 hours since we learned that the Pennsylvania Commonwealth Court ruled against us in our voter ID challenge. We're still smarting, but we're focused on the next step. There will definitely be an appeal to the PA Supreme Court. We are still analyzing Judge Simpson's 70+ page decision and developing our appeal strategy, but we have a good idea about at least some of our argument. Because of the short time-frame before the election, we will ask the Supreme Court to expedite their process. In the past, the PA Supreme Court has heard cases and issued rulings in as little as a month. We cannot, however, predict their response. We also won't speculate as to how they will rule.

In the day since Judge Simpson's decision there have been a lot of theories as to why he ruled the way he did, especially considering the mountain of a case we put before him. I won't get into all the theories and nuances, but here are a few key elements that will help you understand. It's a lot of legalese, but I'm not a lawyer either, so bear with me as I try to explain it:

1. Strict Scrutiny

When challenging an action of the government, there are three levels of "scrutiny" a court may apply: "strict scrutiny," "intermediate scrutiny," and "rational basis." This refers to the burden on the government to prove the need for a law, against an infringement on the rights of the people. Strict scrutiny puts the greatest burden on the government, and is usually applied in cases involving "fundamental rights," as the court defines them. In these cases the government must demonstrate that there is an urgent need for a law, to the point it's worth infringing on fundamental rights. The rational basis test, at the opposite end of the spectrum, is applied when government action does not infringing on key rights, and puts the burden on the challenger (rather than the government) to prove why a law is harmful. Intermediate scrutiny is somewhere in between, and is applied when (as the law defines them) "important" rights are on the line.

We argued that the right to vote represents a fundamental right, and that with somewhere between 100,000 and 1.5 million Pennsylvanians disenfranchised as of today, the court should apply strict scrutiny. In other cases where voting rights cases have been filed in state courts (including in Missouri, where the state constitution's protection for voting is very similar to Pennsylvania's), courts have applied strict scrutiny. Judge Simpson disagreed with our position, and said that he did not believe strict scrutiny was necessary. He went so far as to say in his decision that, if different scrutiny were applied, he might have come to a different conclusion. 

This is something we have the opportunity to challenge before the PA Supreme Court. If that court agrees with us that strict scrutiny should have been applied, it may be our best opportunity at a win. We are not aware of any court in the United States that has ever held the right to vote to as low a standard as this ruling.

2. Facial vs. As-Applied Challenges

Since no voter has yet been turned away from the polls, it's not possible for us to challenge the voter ID law "as applied." Instead, we were filing a "facial" challenge, arguing that the PA voter ID law violates the PA Constitution by its nature (in other words, that there is no way the law as written could be enforced in a way that is constitutional). Judge Simpson disagreed. In his ruling, he suggests that an as-applied challenge would be better--meaning that individuals should try to vote on Election Day, and if they are turned away inappropriately, they can sue.

You can draw your own conclusions as to whether that's a viable way to defend one's right to vote. We certainly don't think so.

3. State vs Federal Court

In his decision, Judge Simpson referred to Crawford v Marion County Election Board, a case in which the United States Supreme Court upheld the state of Indiana's voter ID law. We find this a bit strange, and don't think Crawford has any bearing on our case. We filed our challenge in Pennsylvania state court, arguing that the voter ID law violates the Pennsylvania constitution's protection of voting rights, which is stronger than that provided by the U.S. Constitution. The PA Supreme Court is the highest authority on the state constitution, and a U.S. Supreme Court ruling really shouldn't have any bearing. In our opinion, there are cases in other states--including Wisconsin and Missouri, both of which saw their voter ID laws suspended or struck down--that are much more appropriate comparisons. Not that those rulings apply in Pennsylvania, but the circumstances--including the wording of the state constitutions and the voter ID laws in question--were very similar.

4. Preliminary vs Permanent Injunctions

What we requested of Judge Simpson, which he declined, was a preliminary injunction suspending PA's voter ID law. A preliminary injunction is essentially a temporary hold on a law, to prevent any likely negative consequences while a more in-depth legal challenge is argued. Even though we lost, we can still go back after the election for a permanent injunction. At that point we would be able to show the actual, real-world impact of the voter ID law - but of course a lot of the damage will already have been done.

5. The State Supreme Court

As I said above, there will definitely be an appeal before the Pennsylvania Supreme Court. As to how they will rule, we cannot speculate - but there are two important things you should understand about this appeal.

a) The Supreme Court will rule on the law, not on the facts. It's up to the trial court (in this case, Judge Simpson) to decide what the facts of the case are. The "facts" include what impact the law is likely to have, how many people are affected, what the state is planning between now and the election, what they have done so far, etc. 

Appeals courts rarely dispute the lower court's findings of fact. If Judge Simpson's findings of fact were dramatically contrary to the evidence presented, that would be the one possible exception. Instead, the appeals court will decide whether Judge Simpson correctly applied the law - for example, did he apply the correct level of scrutiny, was he correct in recommending an as-applied challenge rather than a facial challenge, and so on. 

We are a bit frustrated by Judge Simpson's findings of fact, particularly with the way he dismissed the testimony of our experts, with no expert testimony to counter them. We will not, however, be introducing any new evidence or testimony to the Supreme Court. Instead, we will focus on application of the law.

b) The Supreme Court currently has six judges. Normally the court has seven judges, so a tie is impossible. But one of the judges was removed by her colleagues because she is facing criminal charges, and so the court currently has only six members hearing cases. In a 3-3 tie, Judge Simpson's decision will stand. 

Historically, it is rare for the Pennsylvania Supreme Court to overturn Commonwealth Court decisions. We do, however, believe that we have a strong argument, particularly on scrutiny. Keep your fingers crossed.

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Anonymous Anonymous said...

I'd like to call attention to this paragraph about Dr. Barreto's expert testimony (pages 13-14 of the opinion): "Further, to the extent the witness offered opinions on 'Public Knowledge of Voter ID Law in Pennsylvania,' … the opinions were determined not to be credible. On this last point, Dr. Barreto's opinions were contrary to testimony by most, perhaps all, of the lay witnesses who testified for Petitioners. They explained that they have been aware of Act 18 and have some idea whether their current IDs will meet the requirements of the new law." What? Dr. Barreto found that a substantial percentage of Pennsylvanians is unaware of Act 18, and that of those who did know about it, a substantial percentage wrongly believed themselves to possess identification documents that satisfied its requirements. Judge Simpson thinks the credibility of that finding is somehow undermined by the fact that lay witnesses (including plaintiffs!) in a lawsuit seeking to bar implementation of the law are aware of the law and understand its provisions? The group of people who are testifying in a trial about the law know about it, therefore all Pennsylvanians know about it? If that reasoning isn't clearly erroneous, I shudder to think what meets the standard.

1:14 PM  

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