We got word this morning that the Third Circuit Court will sit en banc to hear our student speech case B.H. and K.M v. Easton Area School District. This is our case on behalf of two middle school girls who were suspended for wearing “I ♥ Boobies” breast cancer awareness bracelets from the Keep A Breast Foundation.
The Third Circuit Court of Appeals is the federal appeals court for Pennsylvania, New Jersey, and Delaware. Most cases on appeal are heard by a panel of three judges, and rulings are either unanimous or by a 2-1 majority. When the court sits en banc (French for “full bench”), argument is heard by all of the active judges, plus any senior judge who has previously heard the case. Our en banc court will be the thirteen active judges of the Third Circuit plus Senior Judge Greenberg.
Our initial suit was in November of 2010. We were granted a preliminary injunction by the District Court in April of 2011, the other side appealed, and we argued before a three-judge panel of the Third Circuit this past April. Since then we’ve been awaiting a ruling, but instead we got this news.
Today’s news means that more than half of the Third Circuit judges believe this case warrants an en banc hearing. As we see it, that’s a good thing.
UPDATE: Listen to Vic Walczak, ACLU-PA’s Legal Director, talk about the voter ID case with Radio Times host Marty Moss-Coane.
It’s been a little more than 24 hours since we learned that the Pennsylvania Commonwealth Court ruled against us in our voter ID challenge. We’re still smarting, but we’re focused on the next step. There will definitely be an appeal to the PA Supreme Court. We are still analyzing Judge Simpson’s 70+ page decision and developing our appeal strategy, but we have a good idea about at least some of our argument. Because of the short time-frame before the election, we will ask the Supreme Court to expedite their process. In the past, the PA Supreme Court has heard cases and issued rulings in as little as a month. We cannot, however, predict their response. We also won’t speculate as to how they will rule.
In the day since Judge Simpson’s decision there have been a lot of theories as to why he ruled the way he did, especially considering the mountain of a case we put before him. I won’t get into all the theories and nuances, but here are a few key elements that will help you understand. It’s a lot of legalese, but I’m not a lawyer either, so bear with me as I try to explain it:
1. Strict Scrutiny
When challenging an action of the government, there are three levels of “scrutiny” a court may apply: “strict scrutiny,” “intermediate scrutiny,” and “rational basis.” This refers to the burden on the government to prove the need for a law, against an infringement on the rights of the people. Strict scrutiny puts the greatest burden on the government, and is usually applied in cases involving “fundamental rights,” as the court defines them. In these cases the government must demonstrate that there is an urgent need for a law, to the point it’s worth infringing on fundamental rights. The rational basis test, at the opposite end of the spectrum, is applied when government action does not infringing on key rights, and puts the burden on the challenger (rather than the government) to prove why a law is harmful. Intermediate scrutiny is somewhere in between, and is applied when (as the law defines them) “important” rights are on the line.
We argued that the right to vote represents a fundamental right, and that with somewhere between 100,000 and 1.5 million Pennsylvanians disenfranchised as of today, the court should apply strict scrutiny. In other cases where voting rights cases have been filed in state courts (including in Missouri, where the state constitution’s protection for voting is very similar to Pennsylvania’s), courts have applied strict scrutiny. Judge Simpson disagreed with our position, and said that he did not believe strict scrutiny was necessary. He went so far as to say in his decision that, if different scrutiny were applied, he might have come to a different conclusion.
This is something we have the opportunity to challenge before the PA Supreme Court. If that court agrees with us that strict scrutiny should have been applied, it may be our best opportunity at a win. We are not aware of any court in the United States that has ever held the right to vote to as low a standard as this ruling.
2. Facial vs. As-Applied Challenges
Since no voter has yet been turned away from the polls, it’s not possible for us to challenge the voter ID law “as applied.” Instead, we were filing a “facial” challenge, arguing that the PA voter ID law violates the PA Constitution by its nature (in other words, that there is no way the law as written could be enforced in a way that is constitutional). Judge Simpson disagreed. In his ruling, he suggests that an as-applied challenge would be better–meaning that individuals should try to vote on Election Day, and if they are turned away inappropriately, they can sue.
You can draw your own conclusions as to whether that’s a viable way to defend one’s right to vote. We certainly don’t think so.
3. State vs Federal Court
In his decision, Judge Simpson referred to Crawford v Marion County Election Board, a case in which the United States Supreme Court upheld the state of Indiana’s voter ID law. We find this a bit strange, and don’t think Crawford has any bearing on our case. We filed our challenge in Pennsylvania state court, arguing that the voter ID law violates the Pennsylvania constitution’s protection of voting rights, which is stronger than that provided by the U.S. Constitution. The PA Supreme Court is the highest authority on the state constitution, and a U.S. Supreme Court ruling really shouldn’t have any bearing. In our opinion, there are cases in other states–including Wisconsin and Missouri, both of which saw their voter ID laws suspended or struck down–that are much more appropriate comparisons. Not that those rulings apply in Pennsylvania, but the circumstances–including the wording of the state constitutions and the voter ID laws in question–were very similar.
4. Preliminary vs Permanent Injunctions
What we requested of Judge Simpson, which he declined, was a preliminary injunction suspending PA’s voter ID law. A preliminary injunction is essentially a temporary hold on a law, to prevent any likely negative consequences while a more in-depth legal challenge is argued. Even though we lost, we can still go back after the election for a permanent injunction. At that point we would be able to show the actual, real-world impact of the voter ID law – but of course a lot of the damage will already have been done.
5. The State Supreme Court
As I said above, there will definitely be an appeal before the Pennsylvania Supreme Court. As to how they will rule, we cannot speculate – but there are two important things you should understand about this appeal.
a) The Supreme Court will rule on the law, not on the facts. It’s up to the trial court (in this case, Judge Simpson) to decide what the facts of the case are. The “facts” include what impact the law is likely to have, how many people are affected, what the state is planning between now and the election, what they have done so far, etc.
Appeals courts rarely dispute the lower court’s findings of fact. If Judge Simpson’s findings of fact were dramatically contrary to the evidence presented, that would be the one possible exception. Instead, the appeals court will decide whether Judge Simpson correctly applied the law – for example, did he apply the correct level of scrutiny, was he correct in recommending an as-applied challenge rather than a facial challenge, and so on.
We are a bit frustrated by Judge Simpson’s findings of fact, particularly with the way he dismissed the testimony of our experts, with no expert testimony to counter them. We will not, however, be introducing any new evidence or testimony to the Supreme Court. Instead, we will focus on application of the law.
b) The Supreme Court currently has six judges. Normally the court has seven judges, so a tie is impossible. But one of the judges was removed by her colleagues because she is facing criminal charges, and so the court currently has only six members hearing cases. In a 3-3 tie, Judge Simpson’s decision will stand.
Historically, it is rare for the Pennsylvania Supreme Court to overturn Commonwealth Court decisions. We do, however, believe that we have a strong argument, particularly on scrutiny. Keep your fingers crossed.
This morning we got word that Judge Simpson, of the PA Commonwealth Court, denied our petition for injunctive relief against Pennsylvania’s voter
suppression ID law. In plain English, that means voter ID stands. We are still reviewing the decision at present, but we’ll try to provide a layman’s explanation of the judge’s ruling as soon as we can.
In the meantime, you can read the full decision here.
This fight is not over. All along we’ve expected an appeal to the state Supreme Court – we just didn’t know if we’d be defending or appealing. Thanks to our partner organizations, to all of our members and donors who have provided the funding that makes this fight possible, and of course to all of you for standing by us in the fight against voter suppression.
The American Civil Liberties Union of Pennsylvania is holding its 2012 Bill of Rights Dinner, to be presented this year on October 10 at the National Museum of American Jewish History in Philadelphia. We are seeking an individual very experienced in events management to assist with planning and execution. The event is an annual awards banquet, this year recognizing Rep. Babette Josephs and Dechert LLP for contributions to protecting civil liberties. We expect about 275 people. The evening includes reception, silent auction, dinner and program. We need assistance with caterer, promotion, guest relations, program book, day-of-event, silent auction, and other tasks. This is a short-term, part-time, paid position in our Philadelphia office with flexible hours. Work on October 10, day of the event, is required. Interested individuals, please send letter and resume on or before August 27 to Bruce Makous at email@example.com; 215-592-1513 x118. ACLU of Pennsylvania is an equal opportunity/affirmative action employer. Women, people of color, persons with disabilities, ethnic and religious minorities, and LGBT persons are encouraged to apply.
Recent fellows have participated in trials, preliminary injunction hearings, Third Circuit briefing and arguments, and discovery, to name a few things. Fellows are expected to manage their cases in consultation with the staff attorney. It is, in short, excellent experience and will provide you with great war stories for years to come. It’s also a great springboard to other work – our fellows find good jobs, which is why we need more now!
We need a commitment of at least 2-3 months for fellows.
The ACLU-PA also needs lawyers for less time-intensive work, especially experienced lawyers to help supervise intake and inquisitive types to help with monitoring the Philly police under our stop-and-frisk consent decree.
If you are interested, please send a resume to firstname.lastname@example.org (and a writing sample, if you’re applying for a fellowship) along with a cover letter or email explaining your availability and interest.
Field report from Reggie Shuford, ACLU-PA Executive Director.
Today was closing arguments. No new testimony from witnesses about the inability to get ID, fraud or the huge number of people who stand to be disenfranchised if the law is allowed to stand. Just one lawyer from each side, summarizing the evidence that already has been presented and trying to persuade the judge why his respective side should win. ACLU of Pennsylvania Legal Director Vic Walzcak started the morning off for petitioners. He began by graciously thanking Judge Simpson for allowing the parties to make their case, without unnecessary restrictions. Vic then thanked opposing counsel for their professionalism and for being worthy adversaries. He thanked co-counsel from Public Interest Law Center of Philadelphia, the Advancement Project and the Washington, DC, law firm Arnold & Porter LLP for the incredible work they did on the case.
After that, however, the gloves came off. Vic quickly got into the heart of things by explaining why the evidence presented over the course of the past week demonstrated the folly of the voter ID law, how it treats similarly situated people differently and threatens to disenfranchise roughly one million voters, and why the judge should issue an injunction to stop the law. Vic made five main points:
- First, the voter ID law is a solution in search of a problem. The whole basis for passing the law was ostensibly to prevent in-person fraud. But there is no problem with fraud in the commonwealth, and the commonwealth itself stipulated to that. So, without fraud as a basis for the law, the question becomes, Why was the law enacted in the first place? There is certainly evidence of partisan gamesmanship (e.g., Mike Turzai), and the commonwealth has never been able to give a good reason, let alone a compelling or very important reason, which the law requires for interfering with a fundamental right like voting. Forced to admit that fraud is not a problem in Pennsylvania, the commonwealth changed horses mid-stream, ultimately arguing that the law is necessary to protect the integrity of the democratic process by modernizing elections and enhancing public confidence in them.
- Second, a major part of the commonwealth’s argument was essentially, “What’s the big deal? Everybody has an ID.” It’s true that most people do have ID, but not everybody does and certainly not the limited forms of ID now required to vote in Pennsylvania. Even using the commonwealth’s own numbers, at least 9% of Pennsylvanians don’t have valid ID, all told roughly one million people. And the burden falls disproportionately on the shoulders of the elderly, the young, minorities, women, and those without a lot of education or wealth. Moreover, while ID is required in many aspects of modern life, as Patrick Cawley, counsel for the state argued, boarding a plane or buying beer is not a constitutional right, no matter how forcefully someone might argue to the contrary. In Pennsylvania, all that is required to vote is to be: (1) a citizen of the United States, (2) at least 18 years of age, and (3) a resident of Pennsylvania for at least 30 days. Requiring photo ID impermissibly adds another qualification to the Pennsylvania constitution.
- Vic next argued that, while the commonwealth has taken no meaningful steps to figure out just how many people will be disenfranchised if the law is allowed to stand, one can safely say that “a lot” of people will be. The commonwealth itself, more or less corroborated by expert testimony put on by petitioners, puts that number at close to a million people. It’s hard to see how the integrity of elections is enhanced when so many people threaten to be turned away at the polls in November.
- Vic’s next point was that not a single witness for the commonwealth could guarantee that those currently without proper ID, including many of the petitioners, will be able to vote on election day. Even the new, more streamlined ID from the Department of State would only reach a few thousand people. Well, what about the other 990,000 or so others without ID? Moreover, the new ID is skimpy on details and the date of its availability keeps changing, pushing it closer and closer to election day. And it’s not automatically available. To get it, you have to jump through a number of hoops to show that you can’t get the original voter ID.
- Finally, Vic argued that the new law is going to result in absolute chaos on election day. Testimony from trial indicated there will be longer lines and wait times, and arguments between election officials and those who won’t know until they get to the polling site that they don’t have the right ID, which is roughly 12% of eligible voters (or about one million people) in Pennsylvania.
On behalf of the commonwealth, Cawley’s argument can be summed up like so: What’s the big deal? Most people have IDs. Sure, the law is burdensome on certain people, like the elderly and the disabled, but that’s essentially the price we pay for living in a democracy. While conventional wisdom is that voting is a fundamental right, it really isn’t. And even though the commonwealth was forced to abandon its fraud argument, given the lack of any evidence of it whatsoever, it still could happen. Finally, nothing the commonwealth does or has tried to do to make getting voter ID easier will satisfy petitioners.
Actually, there is something: get rid of the stupid voter ID law.
Judge Simpson has promised a decision the week of August 13. Let’s hope he grants the injunction.
Tamara Manik-Perlman at Azavea compiled a great study of the disproportionate impact of voter ID in the Philadelphia region, using data provided by City Commissioner Stephanie Singer, the PA Department of State, and the 2010 Census. It’s very much worth reading, and shows some interesting [read: disturbing] trends.
In particular, the geographic distribution of voters lacking ID is startling. The large purple splotch on the map above is the area around University City, known for high populations of college students and African Americans – two groups targeted for suppression by voter ID laws. The dark purple shows that, according to the Department of State’s figures, sixty to eighty percent of voters in those districts may not have valid ID for voting.
The map makes clear that the spatial distribution of those who lack ID is non-random. Voters without ID are heavily concentrated around the University of Pennsylvania and Drexel University in West Philadelphia, as well as parts of North, West and Southwest Philadelphia. The rates of voters without ID are relatively low in the Northeast, Northwest, Southeast and Center City.
Note that ACLU-PA had nothing to do with this study (in fact we only learned about it today, when Ms. Manik-Perlman tweeted it at us) and that, unlike most of the material we’ve been sharing in the last ten days, this study was not entered into evidence in our legal challenge against the voter ID law.