Applewhite v The Commonwealth of Pennsylvania, the case now under review by the state Supreme Court, is named for one its plaintiffs, Viviette Applewhite. A group of lawyers headed by the ACLU represented her and several other plaintiffs in July before PA Commonwealth Judge Robert Simpson. They asked for the law, which establishes strict new identification requirements for voters, to be struck down. The plaintiff’s group asserts that the law’s requirements for voter ID are unnecessarily strict; that they are so specific and demanding that some registered voters will be barred from voting the polls.
Applewhite is 93 and does not have a driver's license or Social Security card. The plaintiff was adopted at a young age, and the name on her birth certificate is Viviette Brooks. Applewhite is unable to locate adoption records from the 1920's showing her name change. Under the new law, Applewhite, who has been voting for decades, would not be allow to cast a vote for President on November 6th. In a decision announced on August 15th, Judge Simpson declined to strike down the law. The current case is an appeal to that one.
(A couple of days after losing her case, Applewhite was awarded a photo-ID card at a PennDOT Driver’s License Center. The Department of State boasted that this was an example of the kind of "case-by-case" decision they have always insisted might be helpful to some. For voters now trying to get ID, there is no comfort knowing that the subjective decision of a PennDOT clerk could determine whether or not they vote this year.)
The plaintiffs are asking the Court to halt the implementation of the law before November 6th. They say the law is not necessary to prevent voter fraud, and that it is simply not possible for all registered voters to be informed about the new requirements and provided with the necessary ID in time for the election.
Supporters of the law feel that it will prevent voter impersonation. They acknowledge that there is no evidence that voter impersonation is occurring, but cite concerns about public confidence in the security and integrity of the ballot. They feel that requiring every voter to present a current, government-issued photo ID at the polls is a reasonable expectation, and that most voters should not have any difficulty obtaining the right ID.
This state Supreme Court has only six members currently – a seventh is sitting out due to a fraud investigation unrelated to this case. Of the six, three are Republican and three are Democratic. In the case of a split decision, the law will stand.
The Chief Justice is a Republican, Ronald Castille. The other Republicans are Justice Michael Eakin, and Justice Thomas Saylor. The Democrats are Justices Max Baer, Debra Todd, and Seamus McCaffery.
ACLU attorney David Gersch represented the plaintiffs on Thursday. The Commonwealth of Pennsylvania was represented by John Kerr, and attorney Alfred Putnam appeared as Council for Governor Tom Corbett.
David Gersch, arguing for plaintiffs, asserted that the Voter ID law will "disenfranchise (completely prevent from voting) many voters, and burden others." Gersch stated that the harm to the Commonwealth of upholding the law is negligible, while the harm to the electorate is immediate and irreparable. He stated that the severity of the burden in the original case was not correctly analyzed, and that by rushing the law into effect, there will be eligible, registered voters who cannot vote in this election.
Several Justices telegraphed a reluctance to overturn the law simply because the law was passed by the legislature and signed by the Governor, and because the legislator has a right to regulate electoral processes, and because Judge Simpson has already upheld the law once. Chief Justice Ronald Castille commented that the fact that the State may be "rushing" to implement the law is not a legal reason by which the Court can overturn the first ruling. (It appears possible the decision may turn mostly on these questions, although the Justices went on to entertain some discussion of the merits.)
Gersch claimed that the “vice” of the law is in its failure to guarantee that its expectations could be met by all voters. He stressed that for the law to be constitutional, all electors (voters) must be given or be able to obtain the necessary ID to vote. Gersch argued emphatically that is simply not possible to do so in time for this election. He asked for relief by status quo (keeping things the way they have been.) He gave examples of the how just the stress placed on the PennDOT system to try to provide all those new ID’s makes the law unfeasible.
Justice McCaffery’s questions placed emphasis on the cost/benefit question: if there no fraud present, why should the State hurriedly put the law in place when some voters will be left out? He brushed aside the question of how many would be affected, stating that whether it is 90,000, 9000, or 900, no registered voter should be blocked from voting for lack of a government-issued photo-ID. He provided the sobering observation that his own PA Supreme Court identification card, "signed by Chief Justice Castille," would not suffice as ID at the polls under this law, because it has no expiration date.
Justice Todd’s questions brought out her concerns about the law crossing legal boundaries. By going beyond simply asking the voter to establish identity, to requiring such specific forms of ID, the law adds an “additional qualification to vote,” a violation of federal election law. When challenged on that point by another Justice, Todd held firm, explaining that an elections board can impose qualifications to register, but not to vote. Justice Todd acknowledged that the SSC should show deference to the state legislature. But she questioned at what point that deference should be outweighed by concerns about the real feasibility of implementation. Todd asked several versions of one sticking question: “what’s the rush?” She asked hypothetically, "what if they'd said, put it in place in one week?” The Justice raised the possibility of stretching out implementation time to perhaps two years, or even two federal election cycles (four years). She grilled Knorr on the stipulations the State had been willing to make in July on the lack of any identifiable fraud in Pennsylvania.
Knorr insisted that stipulating that no cases had been identified did not mean there were none, and in a less-than-constructive contribution, Chief Justice Castille observed that "there has been fraud since George Washington." (That observation may stir protective feelings about the ballot, but it is so vague a reference it could apply to anything from ballot stuffing to buying votes. Individual voter impersonation would have had no more chance of actually impacting an election back then than does now.)
Justice Baer came across as especially concerned about the question of what this Court’s standard of review of the lower court decision should be. He may be leaning towards doing nothing, which would mean letting the law stand. He expressed confidence in the implementation of the law, noting that he had been “reading in the paper every day about (the Department of State’s) efforts to put ID's in people's hands." Baer questioned the SSC's right to "tell the Commonwealth how to do their job." He stressed their right to substantially regulate functions of government so that they operate in "fair, effective, and orderly" fashion.
Justice Saylor gave support several times to a concept stressed by attorneys Knorr and Putnam: no law can ever be implemented 100%, so we just have to do our best and hope most people can vote. He used some of the popular language of voter ID movements across the country, citing concerns about "public confidence in the system". He mused that “if we were to tinker" with the implementation process we could make it better, but no system is perfect.
Justice Eakin asked very few questions.
Issues to Consider
It’s hard to tell if a majority of the Court will deem the stakes here high enough here to justify their intervention. The questions and comments of Castille, Baer and Saylor don’t indicate that they put much stock in the growing number of stories that bring into focus the plight of some voters. Even once engaged in the process of seeking the approved forms of ID, some have faced difficulties, and at the time of this trial on Thursday, there was plenty of anecdotal evidence available about snags in the process leaving voters in limbo. Additionally many are just now learning about, or trying to understand and meet, the new expectations. There will undoubtedly be numerous voters who find out about the new law the day the walk in to the polls, too late to cast their ballot.
But because each of the nine plaintiffs in the original case has since been awarded with photo ID’s, Knorr audaciously stated that the plaintiff’s council had “not been able to produce one single person who has not been able to obtain photo ID.” It is hard to say whether the Justices listening can or will examine the veracity of that remark.
But the fact is, many thousands of voters in Pennsylvania are counting on these six people to recognize that the burden of this law on the electorate is enough to justify the proactive step of blocking its implementation. It would be easier to trust them to get this right if they appeared less skeptical about emerging evidence of the risk that legitimate voters will be barred from voting, and more skeptical about the threat of the phantom voter impersonator.
It was disturbing to note that Knorr and Putnam at least appeared to have an impact on some of the Justices with their “common sense” rhetoric about the idea that “most” voters will get to vote in November. Indeed, several of the Justices seemed – based on their own phrasing - very comfortable with the idea that if by and large, the main number of folks can get the ID they need in time to vote, well that’s the best we can hope for, and that’s good enough. Sure, Knorr answered to one of Justice Todd’s questions, if we had another year to implement the law we could do better. “If we had ten years, “ he added, “we could do even better.”
Saylor asked if there was any legal directive that could ever be completely complied with.
Perhaps Justices Todd and McCaffery can remind the rest of the Court that it is not “most people” that usually must turn to the court for redress, and that it’s their very job to decide how close a particular law must come to full implementation in order to remain law.
The court is expected to make a decision by the end of September. It’s possible that there are four or more Justices who will agree to impose a longer timeline on implementation of the law. They’ll have to prevail over those who want to defer to a duly-elected legislature and Governor who have said, "Do it now."
If the Court does uphold the law, its opponents can still look for relief from the federal Department of Justice, who has requested information from the PA DOS in order to evaluate whether the law is in compliance with the Voting Rights Act.
Barring that, volunteers with the Pennsylvania Voter ID Coalition and other groups will continue their daily efforts across the state. They are racing against the clock to inform and assist registered voters to get the ID they need in time for Election Day.
See my series on Voter ID laws.