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Pennsylvania Voter ID Case Could Upend GOP War On Voters In Swing State

Compared to 2008, voting rights lawyers appear to have the edge in court.
 
 
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When the dust settles after the November election and all sides in 2012’s voting wars look back, a lawsuit now before a Pennsylvania court over that state’s harsh new voter ID law may be a key turning point in a season where civil rights advocates and the Justice Department turned back the GOP’s latest voter suppression efforts.

The case brought by a coalition of voting rights groups—led by the American Civil Liberties Association’s Pennsylvania chapter—is doing several things in court that were not done four years ago, when liberal civil rights groups failed to stop Indiana’s new voter ID law before the U.S. Supreme Court.

First, the ACLU-PA put into evidence testimony from real people about real-life circumstances attesting to the hardship of meeting the new ID law—which wasn’t done before the Supreme Court in Indiana, where that court found no-one had been harmed because that law had not yet taken effect. In the Harrisburg court, the judge heard a handful of elderly people, newly eligible voters who are disabled and registered voters without drivers’ licenses, say why they could not obtain the newly required IDs. They lacked a mix of original documents, transportation to get it, time to get reissued birth certificates, and funds to get paperwork that is a precursor to a state  photo ID card. 

Moreover, the testimony by Pennsylvania state officials defending their new voter ID law has been like a scene from an existential novel about kangaroo courts under Communism. Before the trial started, the state’s attorneys agreed in a stipulation that nobody had been found in the state to be impersonating other voters—the GOP’s political ‘justification’ when adopting the new ID law. They also said in that stipulation that they did not have any "direct personal knowledge" of voter fraud elsewhere. (That was followed by video-taped statements by Pennsylvania’s Senate Republican leader bragging the law would help Romney win).

But the eyebrow-raising testimony was by lawyers for top state election administrators saying that they did not know how many people would be affected by the new ID law. The state’s estimates keep changing, first being 89,000, then 759,000, and then possibly another 600,000 people who are legal voters but lack specific photo IDs. Even though these figures are changing, state election officials essentially are telling the court to, ‘Trust us, we’ll get it right,’ but not demonstrating any confidence to do that.

By Thursday’s closing arguments, the state had not called a single witness to make its case or rebut the civil rights groups. The state’s lawyer said the Legislature has the power to pass laws and that tough voter ID requirements were not a problem in other states.

So, unlike the Indiana voter ID case before the Supreme Court four years ago, there is a factual record of real burdens to individuals who would be affected by the new ID law, no evidence that there is a statewide ballot security problem, and testimony stating the new ID law will complicate voting in ways that cannot even be clearly predicted—because the state keeps changing its plans on how it will implement the law this fall.

Finally, by all accounts the state judge hearing the case is fair-minded, not ideological, and although he ran and was elected as a Republican, he has issued voting rights rulings that have gone against his party. In other words, he apparently is a judge who looks at the facts and the law, rather than reaching an ideological decision regardless of either.     

People observing the trial said Commonwealth Court Judge Robert Simpson seemed as concerned by how the new law could create chaos on this fall as he was about whether the Legislature overstepped and his court should overturn or delay the law.  

There is one other factor that underscores why this case could be a tipping point in the GOP’s 2012 war on Democratic voters. If the judge issues an order suspending the law—as many increasingly expect he will in mid-August—it will undoubtedly be appealed to the state’s Supreme Court. But because one judge on that seven-member court is now involved in a campaign finance scandal and is not sitting on the bench, the Pennsylvania Supreme Court will be evenly split between Democrats and Republicans.  

While is dicey to predict judicial outcomes, if Pennsylvania’s Supreme Court deadlocks on a likely appeal, as local newspapers have implied it would, then the ruling that from Judge Simpson will stay in effect through the election.

Election Day is a long way off—and voting can be a messy and complicated affair. But there are emerging signs that the frontline of the GOP’s 2012 war on voters—barriers to voting—is beginning to crumble.

The Department of Justice has rejected new voter ID laws in Texas and South Carolina, and those states are not likely to see their challenges to the DOJ settled in federal court before Election Day, according to election law scholars, meaning those laws cannot be implemended. A Wisconsin judge declared that state’s new voter ID law unconstitutional, in a ruling suspending the law—which was appealed to that state’s Supreme Court.

Similarly, Florida’s efforts to purge 10s of 1000s of alleged ‘non-citizens’ on its voter rolls continues to face legal setbacks, with the DOJ filing papers this week saying that the poised purge would violate fedeal voting rights laws. Meanwhile, another federal lawsuit was filed in Florida this week challenging a new law that curtailed early voting—which historically has served communities of color in southern Florida.

These are all good signs, suggesting that the momentum is slowly but surely shifting toward the direction of sustaining voting rights. Let’s hope it keeps going.

Steven Rosenfeld covers national political issues for AlterNet, including America's retirement crisis, the low-wage economy, democracy and voting rights, and campaigns and elections. He is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).