Pennsylvania Upholds Voter ID Law

Politics & Elections
341

Having said all that, and while still being of the opinion that this law is dirty pool, I think the Democrats should suck it up and do their best to have a “get out the voter ID” campaign and help as many people as possible get some form of acceptable ID.

I only wish that the court could have recognized that this law places an unfair burden on a significant fraction of the underprivileged quite close to election day, and delayed their ruling until after the election. This would at least have given folks several years to get everybody properly, er… identified.

342

The second part there sounds lke the road to My Eyes Glaze Over. But I would like to know a bit more about that first part. Seems to me that equal protection for access to voting would be hard to distinguish from convenience of voting. But I don’t know if that has any actual bearing on this. Perhaps you can expand on your point a bit?

It may seem to some small minded people that I’m simply enjoying someone telling Bricker where to step off. While I admit that may be some unmeasured part of my motivations, it certainly isn’t all of it. As well, I have a neutral justification here, the fight against ignorance, which means I totally get away with it.

343

it can protect against voter impersonation, and false claims of voter impersonation. Wow that’s truly amazing. Two types of problems that we have no evidence of their ever happening. I feel safer already.

Do the voter IDs also ward off tigers? We can’t have voters scared to go to the polls because of the threat of tiger attack.

344

I don’t agree that whichever way Justice Castille votes will prove much of anything about the wisdom of vote ID, whether the current approach of courts to facial voter challenges makes sense, or which legal arguments are most faithful to the Pennsylvania Constitution. If your position is limited solely to observing that the state courts permit this law, then it should be obvious that you’ll have to wait to hear how Justice Castille votes before staking that position.

Here’s my point, spelled out a bit:

Our federal system was set up such that states by and large determine whether and how they will allow their citizens to vote. We’ve made modifications at the federal level by constitutional amendment over time. If states choose to have their citizens vote to determine how the state’s electors will act in the electoral college, then they cannot disenfranchise only the black voters. Or the women. Or the 19-year-olds. Under the Fourteenth Amendment’s Equal Protection Clause, they cannot disenfranchise or even make it harder for anyone to vote for reasons disconnected with the person’s qualifications to vote (which includes ensuring that the correct person is voting). Like other laws analyzed under the Equal Protection Clause, those regulations are permitted but must be proportional to the legitimate need addressed.

That’s as far as the U.S. Constitution takes us. But state constitutions are, by design, where the real action on voting is supposed to be. There’s every reason for individual states to balance things differently than the Supreme Court. For one, and this point should be familiar to conservatives,* this is the state’s domain*. It is exactly consistent with how the constitutional order was created for state’s constitutional rules about how voting is set up to be more restrictive (i.e., less permissive of legislation regulating voting) than the federal standard.

Moreover, the federal protection for voting is chiefly concerned with equality. Everyone’s vote must be treated equally, and restrictions on voting must not treat anyone unfairly. But the state provisions are about the right to vote itself, not the equal protection of it. Because of that, the analysis is properly more about whether a particular law infringes on each individual’s right, and less about whether the needs of others (voters who want to be more confident in their vote, or whatever) are sufficiently important and legitimate. It’s the difference between asking whether punishment is cruel and unusual and asking whether that punishment is applied to everyone equally and responds to a legitimate need.

A third reason is that the text is different, and so is the historical understanding and history of that text, for those jurists concerned with such things.

So you have a legal provision that occurs in a structurally different context, with a different conceptual underpinning, embodied in different text with a different history. Whatever your philosophy on how cases should be decided, you cannot possibly believe in good faith that the Supreme Court’s ruling in *Crawford *is anything more than an interesting suggestion about how a different but related legal problem has been addressed.

345

Reading that over, I’ve just now understood your question elucidator.

The Supreme Court has not distinguished complete prevention of voting from making it harder. That’s not what **Bricker **meant. His point was that the Supreme Court has found that the extent to which voter ID made voting in Indiana harder was OK given the need for the law, under the Equal Protection Clause.

346

One more point of clarification, just for the triple-post award for long-windedness:

The reason this state judge did not consider the “making it harder” aspect and focused on outright prevention has to do with the timing of the case, not the rule for assessing a voting restrictions.

The judge held that because this was a preliminary injunction based on the text of the law alone, that meant that the plaintiffs had to show that they had a good chance of being prevented from voting altogether, in large part because if they can cast a provisional ballot, then any problem can be remedied after-the-fact.

347

That’s not a complete summary of what I said.

I’ll explain again, but why should I continue to type things if you plan to simply ignore them?

Voter ID also allows the prosecution a much stronger case when trying to convict a non-citizen who voted, or a felon who voted. Those are not impersonation cases.

Why didn’t you mention those?

348

The Pennsylvania Supreme Court is, I hope you’ll agree, the final authority on the meaning of the Pennsylvania Constitution. You were the one who raised the spectre that state constitutional guarantees in this case could not be divined by referring to federal law - a point I absolutely concede.

But what you now seem to be hinting at is that even the Pennsylvania Supreme Court is not the final word on the issue. Who is? Justice Debbie Wasserman-Schultz?

Agreed. Crawford is illustrative, but hardly controlling.

But the Pennsylvania Supreme Court IS controlling – right? They rule, and there’s no more waffling about how their decision is illegitimate, correct?

349

Yes, of course. Just as you’d agree that it is not the final authority on the categories I expressly enumerated, namely " the wisdom of vote ID, whether the current approach of courts to facial voter challenges makes sense, or which legal arguments are most faithful to the Pennsylvania Constitution." You could quibble with my wording of that last category, but I meant to express that while the Court is the final say on the law, we’re free to argue that this binding decision is more or less faithful to our preferred interpretations.

I intended no such hint. What I intended was to point out two things. Not only is an argument about what the law is an extremely narrow argument that misses most of what others are arguing about in this thread, we do not even know the answer to that artificially narrow question yet.

My reference to Justice Castille’s deciding vote was meant to underscore the fact that while one man’s swing vote will decide the law, it should be obvious that one man’s vote doesn’t mean very much about who has the better side of the argument in this thread. If your argument in this thread is purely a prediction of how that man will vote, then you’re absolutely right that his vote will settle the matter. And if your argument is about what is legal and illegal, then again you’re absolutely right that his vote will settle the matter once it is cast.

I daresay you have no opponents in that argument.

350

That acknowledgment is quite remarkable in light of the frequency with which you have presented it to us as settled law, typically with a comment of the nature of “It’s legal! Ha, ha, suck on it, Dems!”

351

I think that’s overstating it, actually. When the Seventh Circuit Court of Appeals interprets a federal statute, that is “illustrative, but hardly controlling” as to the Third Circuit Court of Appeals’ interpretation of the same statute.

The relationship here is more akin to the relationship between the legal analysis of inter-racial marriage and gay marriage.

352

I did. The defense in those cases is to claim voter impersonation. “I didn’t vote illegally, the signature on the log book was someone impersonating me.”

The Voter ID will allow the prosecution to refute false claims. Since we don’t have any evidence of any claims of voter impersonation to begin with, I’m not particularly concerned about the epidemic of false voter impersonation claims our judicial system needs help to deal with.

353

When Laila Stones sent a letter to the Commonwealth of Virginia requesting a copy of her birth certificate, the response was jarring: “They say I don’t exist,” she recounts under oath.
Stones is testifying against the Commonwealth of Pennsylvania. According to her[ testimony, Virginia says Stones wasn’t born in Virgina. They have no record of her being born there. They didn’t say she doesn’t exist. They said she doesn’t exist in their records. She could probably produce a letter from Illinois, Idaho, and California saying they have no record of her being born there either.

Was Laila Stones born in Virginia?

Does Pennsylvania require a copy of a birth certificate for students who enter its public school system?

354

I’m assuming, based on my vast experience with Perry Mason re-runs and that one John Grisham novel, that the Court implicitly recognized that hindering voting was a negative, something than ought not be done without some compelling need?

Does that mean that the state must prove such a compelling need, or is only required to assert it? Does their decision mean that “voter confidence” is accepted at the highest possible level, and is thereby immune to argument? Which would be handy as hell, given the subjective nature of “voter confidence”.

And don’t worry about being long-winded, hoss. We are often exposed to points that a brief, concise, and entirely misleading. If it takes a thousand words to speak the truth, rock on.

355

They have explicitly recognized that there must be some legitimate need in order to make voting harder. But we have to be careful with the language here, since terms like “compelling need” have specific legal meanings. Under the Supreme Court’s approach, the need must be “sufficient,” which is every bit as circular as it sounds. Unlike many areas of the law, the Supreme Court has not set out a specific criterion for how important the need must be. Much of the debate in *Crawford *was over that issue, and the majority did not really address it.

First, keep in mind what I said above that almost all of the precedent here is just on what the Equal Protection Clause requires, which was not the basis for the case being discussed in this thread.

That said, even under that provision, your questions have no settled answer. Judging by *Crawford’s *treatment of the state’s asserted interests, it is not necessary for the state to prove anything to prevail on a facial challenge. It need only present “legitimate” and “sufficiently weighty” reasons. As to voter confidence, the Court simply observed that this is indeed a nice thing to promote.
That approach is consistent with the rest of the Equal Protection Clause as applied to rights not protected by the Constitution (as voting is not protected in the way, say, free speech is). Restrictions must simply be reasonable and we don’t inquire too much into whether the restrictions perfectly track the scope of the problem of whether the legislature’s factual basis is correct.

356

I have done no research on this point – perhaps you have. Some states have bodies of caselaw that incorporate their own state constitutions in the same way as the federal constitution – they may say that Virginia’s prohibitions against unreasonable search and seizure are coterminous with the Fourth Amendment’s.

If Pennsylvania’s relevant state constitutional provisions derive any guidance from the federal analogs, then I don’t agree it’s overstating it.

In any event, I am willing to patiently wait until Pennsylvania fully and finally decides the issue.

What do you think will happen then? Calm acceptance of their decision?

357

If I understand this correctly, then, “compelling need” is a higher order than “sufficient”? And it need not rise to the level of compelling need, simply to a sufficient need? And the actual meaning of “sufficient” is left as a playground for lawyers to frolic in? (groan)

.

Which is to say, then, that “voter confidence” may be sufficient, but they are not saying that it is?

I’m wrestling with this, and have lost two out of three, so far. (Ever see that statue of the Greek guy wrestling the snakes?) Does this mean that the problem may not actually exist, but if the remedy is “reasonable”, then it still stands? Because they need not prove the problem exists, only need apply a reasonable remedy?

(Mind, I mean no argument here, certainly not with you, your clarifications are welcome even if somewhat depressing…)

358

That’s often true of analogous provisions (e.g., speech protections). And it is true with respect to Pennsylvania’s equal protection standard, I believe. But my whole point is that there is no analogous federal provision enshrining a right to vote. To my knowledge, the PA Supreme Court has never said that the PA right to vote clauses should incorporate SCOTUS equal protection jurisprudence, and it would be a very odd thing to hold for all the reasons given above.

No, I don’t expect calm acceptance on either side regardless of the outcome.

But just to be sure we’re on the same page, do you understand why you should not expect the decision to lead to calm acceptance of these laws? It has nothing to do with accurate understanding of the rule of law, or the desire to de-legitimize the court system. I know you appreciate the distinction between something that is unwise and something that is illegal. I think you also know the distinction between is and ought.

Yes, that’s basically correct. Again though, very unsettled. It might be more accurate to say that we don’t know exactly what the test is.

(I got to see Laocoon at the Vatican this summer, actually. Pretty awesome.)

Yes, that’s also basically correct, but again not at all settled or well-developed. What you describe is the law of rational basis review under the Equal Protection Clause. Generally, the inquiry under the Equal Protection Cause does not examine the accuracy of so-called “legislative facts,” that is, the facts underlying the reasons given by the legislature.

But like all things law, these general principles are only true in the abstract, and are only true until they are false. For example, in the gay rights context, courts have challenged “legislative facts” with increasing frequency (such as that permitting gay marriage harms child development). The reason for this is the intuition that gay rights are different from the rights of people with pink hair or the rights of people who own trucks–i.e., they are deserving of more careful protection. Voting rights, or at least marginal burdens on those rights, may or may not fall into a similar category in which techically we’re just examining the connection between the reason and the burden and not testing the accuracy of the reason, but in practice we’re also going to require something more than hand-wavery to justify a restriction.

359

Ramon Cue?

Of course, getting that conviction would be tough. But with a picture ID, Cue’s argument gets very weak and a conviction gets much more likely. (“Three other people have my same name, birth date, and face!”)

360

If you’re feeling really masochistic elucidator, here’s a nice review of the concept of deference to legislative fact-finding: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1083&context=ilj