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.