PENNSYLVANIA RECORD

Pennsylvania’s highest court on Sept. 13 listened to oral arguments in the case of

Applewhite v. Commonwealth, the challenge to the state’s recently enacted Voter ID law.

The six justices – Joan Orie Melvin currently remains suspended from the bench pending her trial on public corruption charges – listened as the appellants, represented by civil rights attorneys and members of the ACLU of Pennsylvania, explained why the controversial legislation requiring all voters to show photo identification at the polls would disenfranchise a certain segment of the electorate, and counsel representing the commonwealth, the governor and the secretary of state sought to show how the legislature carried out its legitimate role in crafting the measure.

The first person to address the court, which was holding session in Philadelphia, was plaintiffs’ attorney David Gersch, of the Washington, D.C. law firm of Arnold & Porter.

Gersch started by reiterating to the justices the appellants’ main argument – that Act 18, which is the law’s formal name, at its core “impermissibly” violates the right to vote.

“This was the central error of the Commonwealth Court below in failing to enter preliminary relief …,” Gersch said, referring to a lower court ruling that let the law temporarily stand as is.

In upholding the law, Commonwealth Court Robert Simpson previously ruled that the law, on its face, seems constitutional.

It was a challenge to that lower court’s ruling that led to Thursday’s session before the state Supreme Court.

While the commonwealth has argued that the legislature has a legitimate role in regulating elections, Gersch stated that Act 18 is not “mere election regulation.”

“The act is not narrowly tailored toward its legitimate goals,” Gersch told the justices.

Come November, voters will be faced with what Gersch called the “serious threat” of being denied the right to vote if they don’t have the proper identification, something that has proven problematic for some.

The crux of the problem, Gersch said, is that especially given the short time frame – the general election is just over a month away – there exists the difficulty in obtaining the proper photo ID for some Pennsylvania residents, namely, the poor, elderly and some minority voters.

Gersch conceded that if the law wasn’t rushed through, but rather was rolled out over a longer period of time, the whole case might be moot, since people would have a longer time by which to obtain the proper form of identification.

The plaintiffs take issue with having to scramble to get their IDs soon before an election, and a presidential one at that, Gersch said.

Under questioning by Justice Seamus McCaffery, Gersch conceded that the act of requiring an ID is not in itself unconstitutional.

But, Gersch said, it “must be the case that all qualified electors will be able to get the identification.”

McCaffery posited that if everyone was able to get the ID, it doesn’t seem there would be an issue, to which Gersch still replied, “there’s no need to rush the implementation.”

The GOP-pushed bill was designed to deter voter fraud, its authors claim.

Opponents of the law, however, claim it was a back-door way of preventing those who typically voter Democrat from being able to cast ballots in a crucial upcoming federal election.

The segment of the voting bloc most likely to lack photo IDs tend to vote Democratic.

Gersch and his team say they’re after a preliminary injunction preventing the law from immediately taking effect because it’s still not known exactly how many potential voters could be negatively affected by the law come November’s election.

At this point, Gersch said, the plaintiffs are asking for the law to be temporarily enjoined pending a full trial on the law’s merits.

Under questioning by the justices, Gersch said that in order for Act 18 to be lawful, the commonwealth has to prove that it would ensure that all eligible voters could obtain the proper identification without being overly burdened.

“If the commonwealth has a process by which everyone can get ID this case wouldn’t be necessary,” Gersch said. “The vice is requiring ID that people don’t have and have a hard time getting.”

Justice J. Michael Eakin interjected, saying the problem with this argument is that there will never be a point where everyone can get what the legislature requires.

“There will always be someone burdened by it,” Eakin said.

Gersch argued that the law should be more narrowly tailored, with provisions that would make it easier for people to obtain photo identification from the state.

Other states, such as Georgia and Virginia, which passed similar Voter ID laws, have done just that, Gersch said.

Georgia, for example, has a provision that allows voters who don’t have the proper ID on Election Day to cast ballots by signing an affidavit that states they are who they say they are, Gersch said.

Those people would be able to show an ID at a later time.

And Virginia will mail IDs to voters, Gersch said.

Here, under Pennsylvania’s Voter ID law, people have to get themselves to a Pennsylvania Department of Transportation facility in order to obtain their identification cards.

And the fact that some counties have no PennDOT offices, while others have PennDOT buildings that are only open one day a week, proves the burdensome nature of the law, Gersch argued.

Justice Max Baer, however, said he doesn’t believe what Gersch is really arguing for is a narrowing of the law.
“The act didn’t say you have to use PennDOT … it said get photo IDs,” Baer said.

The Pennsylvania Department of State, which oversees elections, has since said it will issue special Voter ID cards specifically designed for use at the polls.

The commonwealth was represented during the hearing by John Knorr, who is with the state Attorney General’s Office.

Knorr said his office believes the Commonwealth Court was correct to deny a preliminary injunction at this stage of the litigation, saying that he believes the plaintiffs have failed to demonstrate irreparable harm.

“The right to vote at its core is obviously a fundamental right, but not everything that affects that right is fundamental,” Knorr said. “The right to vote and having elections in their nature cannot exist without pervasive state regulation and fashioning that regulatory framework is the job of the legislature.”

Knorr said the legal standard known as the “plainly legitimate sweep” comes into play when there is a facial challenge like this – when a determination must be made if a law is on its face constitutional – and “I think clearly that on its face the statute plainly meets those tests.”

Questioning by some of the justices signaled that they may find problems with some aspects of the law.

“You’re creating, through Act 18, a specific form of ID which to me seems like it creates an additional requirement to get into the voting booth,” Justice McCaffery said. “If that’s the case it seems unconstitutional.”

McCaffery later said part of his role is to look for the “public harm,” and questioned whether or not “politics” could have been behind the legislation, a claim made by the law’s opponents, and not simply a legitimate goal of the legislature to attempt to eliminate voter fraud.

Without mentioning him by name, McCaffery seemed to make reference to state Rep. Mike Turzai, one of the lawmakers behind Act 18, who was caught on video saying he believes the law could help lead toward a Mitt Romney presidency.

Opponents of the law jumped on that comment as proof that there was an ulterior motive behind the law’s passage.

Justice Debra Todd seemed to take issue not with the law itself, at least not at this juncture, but with the time frame by which the law was rolled out.

“How much better could we do, though, if we had two years to implement this, not fifty five days,” Todd asked Knorr, the lawyer representing the commonwealth. “What’s the rush.”

Todd said while the court often gives a great degree of deference to the legislature in election matters, that degree might lessen when it’s a case like this where a federal, not just a state, election is just around the corner.

“What if you had given us a week … would you agree then that the … deference we afford to the legislature would be dissipated,” Todd asked Knorr.

Knorr responded that in a case like that, it could be argued that the legislature abused its discretion.

It was not clear when the court would render its decision.

The fact that Justice Orie Melvin is on suspension, however, could prove problematic; if there is a 3-3 vote, the lower court’s ruling denying an injunction would stand.