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Judge Allows Pennsylvania Voter ID Law to Go Forward

A judge in Pennsylvania upheld the voter ID law that could disenfranchise hundreds of thousands of legal voters in the state.

Commonwealth Court Judge Robert Simpson said he wouldn’t grant an injunction that would have halted the law requiring each voter to show a valid photo ID. Opponents are expected to file an appeal within a day or two to the state Supreme Court as the Nov. 6 presidential election looms.

Simpson didn’t rule on the full merits of the case, only whether to grant a preliminary injunction stopping it from taking effect.

The original rationale in Pennsylvania’s Republican-controlled Legislature for the law — to prevent election fraud — played little role in the case before Simpson since the state’s lawyers acknowledged that they are “not aware of any incidents of in person voter fraud.” Instead, they insisted that lawmakers properly exercised their latitude to make election-related laws when they chose to require voters to show widely available forms of photo identification.

Judge Simpson agreed with this in his 70-page ruling, saying that the standard had not been reached for a preliminary injunction. Simpson decided that the disenfranchisement of hundreds of thousands of Pennsylvania voters would not rise to the level of “irreparable harm” but would instead just add up to an inconvenience for voters, one that could be solved by the obtaining of proper ID.

This is a legal and not a practical determination. There aren’t enough workers at the various outlets to obtain ID between now and the election to accommodate all the eligible voters who don’t have it. Nor does every voter in Pennsylvania have knowledge about what IDs are viable and where they can obtain them. Nor do they all have the supporting documents – in some cases, birth certificates long since destroyed – or the ability to travel to obtain ID, or the money needed to do so.

Simpson dismissed this, saying that he was “convinced that efforts by the Department of State, the Department of Health, PennDot, and other Commonwealth agencies and groups will fully educate the public, and that DOS, PennDot and the secretaries of those agencies will comply” with the law. This is a very Panglossian view of the world. The far more likely outcome is chaos.

As Dave Weigel noted, Simpson dismissed the Republican House leader in Pennsylvania’s boast that the voter ID law would “win the state for Mitt Romney” by saying that “I declined to infer that other members of the General Assembly shared the boastful views” of the Majority Leader. So basically, Simpson tried his best to avoid any possibility that the law wasn’t passed for nakedly partisan reasons, to disenfranchise voters of a particular party.

The ACLU and other entities which sued for the injunction plan to file an appeal with the state Supreme Court. Here things get interesting. Right now, there are only 6 Justices on the Pennsylvania Supreme Court; Joan Orie Melvin, a Republican, is under a suspension because of a corruption case. The court is equally divided, then, between Republicans and Democrats. One of the three Republicans would have to cross over and side with all of the Democrats to overturn the ruling; in the event of a tie, Judge Simpson’s ruling would stand. The Chief Justice, Ronald Castille, is seen as a Republican moderate, who would be most likely to flip.

The Justice Department could also challenge the law, but the US Supreme Court has already ruled on the Constitutionality of voter ID laws, and there are no pre-clearance restrictions in Pennsylvania, so that’s a tough road.

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David Dayen

David Dayen