PENNSYLVANIA RECORD

A state appellate court judge has refused a petition for a preliminary injunction seeking

to block Pennsylvania’s new Voter ID law from taking effect, upholding the constitutionality of the controversial piece of legislation.

Commonwealth Court Judge Robert E. Simpson’s decision came after oral arguments were held in a case brought by the American Civil Liberties Union of Pennsylvania on behalf of a handful of plaintiffs who contended that the law would disproportionately affect a certain segment of voters, namely, the poor, the elderly and minorities.

In his 70-page opinion, Simpson said that while the petitioners’ counsel did an excellent job of “putting a face” to those affected by the requirement to show photo identification at the polls, “at the end of the day, however, I do not have the luxury of deciding this issue based on my sympathy for the witnesses or my esteem for counsel.

“Rather,” he continued, “I must analyze the law, and apply it to evidence of facial unconstitutionality brought forth in the courtroom, tested by our adversarial system.”

The ACLU has publicly stated that it is planning to promptly appeal to the Pennsylvania Supreme Court.

The outcome, however, could be interesting, given that the high court currently has an even number of justices due to the suspension of Joan Orie Melvin, who remains off the bench pending her trial on public corruption charges.

A spokesman for the Administrative Office of Pennsylvania Courts said if Simpson’s ruling was affirmed by the high court, or if the Supreme Court had a split decision, the lower court ruling would stand.

The petitioners, registered voters who claimed they would be disenfranchised by the law’s requirements to obtain identification solely for the purpose of exercising their right to vote, had filed their challenge to the law in early May, less than two months after the enactment of Act 18, also known as the Voter ID law.

They had also filed an application for special relief.

Supporters and opponents of the law seem to fall along party lines, with Republicans generally saying it’s about preventing incidences of voter fraud and Democrats claiming it’s a disguised attempt to keep minorities, senior citizens and poor voters from casting ballots, especially in a hotly contested presidential election year.

Opponents of the law pointed to a speech given by state House Republican leader Mike Turzai that was captured and posted to the video-sharing website Youtube as proof that the law isn’t about clamping down on voter fraud, but rather about disenfranchising mostly Democratic voters.

In the clip, Turzai is heard saying, “Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania, done.”

Simpson spends much of his ruling laying out the difference between a “facial” challenge and an “as applied” challenge, going so far as to say that it is a legal distinction not only unknown to many lay persons, but to legal professionals as well.

Simpson wrote that the starting point of his legal analysis is the “presumption of constitutionality that all legislative enactments enjoy under both the rules of statutory construction and the decisions of our courts.

“Any party challenging a legislative enactment has a heavy burden, and legislation will not be invalidated unless it clearly, patently, and plainly violates the Constitution of this Commonwealth,” Simpson wrote.

The jurist wrote that a statute is facially unconstitutional only where no set of circumstances exist under which the statute would be valid, thus a petitioner must show that the law is unconstitutional in all of its applications.

An “as applied” challenge, however, doesn’t contend that a law is unconstitutional as written but that its application to a particular person under certain circumstances deprived that person of a constitutional right.

Simpson wrote that in constitutional challenges to other states’ voter ID laws, the courts have generally viewed such challenges as facial rather than as applied.

In the current case, Simpson concluded that the petitioners are unlikely to prevail on a facial challenge to Act 18, or the Voter ID law, for various reasons.

First, the judge wrote, the petitioners don’t acknowledge the “extremely rigorous legal standard for facial challenges requiring a demonstration that there is no set of circumstances under which the statute may be valid.”

“Indeed, they did not mention the legal standard at all, not in the pre-hearing brief, not in the opening address, not in the closing argument, and not in the post-hearing brief,” the ruling states.

Simpson went on to write that the petitioners never indicated what evidences meets the legal standard.

“On review, it appears that the majority of the evidence offered by Petitioners may be appropriate to an ‘as applied’ challenge, because it relates to the impact of the law on specific individuals, but not to a facial challenge,” the judge wrote. “This is not to say I ignored the testimony of any witness; rather, I carefully listened to and considered all the evidence. However, I am unsure how to assess much of the evidence offered by the parties with the burden of proof without more guidance from them.”

Simpson stated that if problems arise from the Voter ID law, they could be remedied on an individual basis.

“Speculation about these situations does not support invalidation of all lawful applications of Act 18,” he wrote.

“On its face, Act 18 applies equally to all qualified electors: to vote in person, everyone must present a photo ID that can be obtained for free,” he continued. “Act 18 does not expressly disenfranchise or burden any qualified elector or group of electors. The statute simply gives poll workers another tool to verify that the person voting is who they claim to be.”

Simpson wrote that on first view, the law appears to be legitimate.

“… Considering the statute’s broad application to all Pennsylvania voters, it imposes only a limited burden on voters’ rights, and the burden does not outweigh the statute’s plainly legitimate sweep,” he wrote. “My preliminary conclusions are consistent with those of federal and state courts rejecting facial constitutional challenges to voter ID laws.”

Simpson wrote that while the petitioners may have proved an “as applied” case, they are seeking a “facial” remedy.

“This legal disconnect is one of the reasons I determined that it is unlikely they will prevail on the merits,” he wrote.