Voting Wars: PA Voter ID Law May Be Tossed, But Rove's Donors Stay Secret

Tuesday has bought good and bad news in the election law world. In the good news department, the Pennsylvania Supreme Court has told a lower court to reconsider its decision upholding that state’s new draconian voter ID law, paying attention to voter suppression. That is a voting rights victory, although the final chapter in that swing state’s voter ID war is not yet written.

In the bad news department, a federal appeals court in Washington has ruled that 2012’s most secretive political organizations—run by the likes of Karl Rove—do not have to reveal the multi-million dollar donors, rejecting a public-interest lawsuit that sought to pry open the door to disclosure. That ruling almost certainly will help the GOP fund more negative ads as the Romney campaign teeters.

Good News: Pennsylvania Voter ID Law May Be Suspended

The Pennsylvania Supreme Court sent a controversial lawsuit over the swing state's strict new voter ID law back to a lower court in Tuesday, telling it to take another look at impediments that voting rights activists have said may block hundreds of thousands of Pennsylvania voters from getting a ballot in November.

Tuesday's ruling is a temporary victory for voting rights advocates, who sued the state and had argued that the preparations by Pennsylvania's state government to issue hundreds of thousands of new state ID cards--primarily to people who did not have driver's licenses in the state's cities and on college campuses--was flawed, clumsy and would interfere with the right to vote.

In its ruling, the state's Supreme Court agreed with this argument, telling a lower Commonwealth Court to take a second look at the state's preparations for issuing the newly required voter ID cards, and instructing it to pay closer attention to voting rights and issue a new ruling by Oct 2. 

"We think the Commonwealth Court will have trouble [upholding the voter ID law for November] no matter what, given the high standard that the [state] Supreme Court has imposed," said David Gersh, of one the attorneys working on the ACLU-PA suit.

The fight over Pennsylvania's new voter ID law is not over, but this is a big reversal for the state's GOP, which recently passed the ID law, or Act 18, and where party leaders then bragged that it would help Romney to win the state in November.  

Here are key excerpts from the ruling, affirming the right to vote and sending the case back to the lower court:

"Overall, we are confronted with an ambitious effort on the part of the General Assembly to bring the new identification procedure into effect within a relatively short timeframe and an implementation process which has by no means been seamless in light of the serious operational constraints faced by the executive branch. Given this state of affairs, we are not satisfied with a mere predictive judgment based primarily on the assurances of government officials, even though we have no doubt they are proceeding in good faith.

"Thus, we will return the matter to the Commonwealth Court to make a present assessment of the actual availability of the alternate identification cards on a developed record in light of the experience since the time the cards became available. In this regard, the court is to consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards. If they do not, or if the Commonwealth Court is not still convinced in its predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth’s implementation of a voter identification requirement for purposes of the upcoming election, that court is obliged to enter a preliminary injunction.

"Accordingly, the order of the Commonwealth Court is VACATED, and the matter is returned to the Commonwealth Court for further proceedings consistent with this Order. The Commonwealth Court is to file its supplemental opinion on or before October 2, 2012. Any further appeals will be administered on an expedited basis."

Bad News: Karl Rove’s Secret Donors Stay That Way

But Tuesday also was a bad day for American Democracy. A federal appeals court in Washington ruled in a complex case that non-profits groups that are raising millions in anonymous donations from millionaires in 2012 and not-so-secretly spending it on political attack ads do not have to reveal their donors.

The ruling by the DC Court of Appeals cements the reality that there are two kinds of campaigns in American politics: one playing by the rules and limits established by Congress, where donations are capped and disclosed in order to prevent the appearance or occurence of corruption, and another one where those rules do not apply and the super rich can secretly back candidates without telling the public.

The case, Van Hollen vs. FEC, sought to force disclosure of the mega-donors bankrolling political organizations that were organized as non-profits under federal tax law, such as Karl Rove's Crossroads GPS and the pro-Obama Priorities USA. These groups, particularly on the GOP side of the aisle, have been spending tens of millions on campaign ads in the presidential and congressional races. Because they are non-profits and not political committees, they do not have to disclose their donors.

While the IRS has been investigating whether these groups and dozens like them have violated their federal charter as non-profits, it wasn't expected to reach a final conclusion in the weeks before the November election. Thus, this lawsuit, brought by a coalition of progerssive campaign finance reform groups, sought to force the political non-profits to all disclose their donors by citing recent Supreme Court rulings favoring disclosure and federal campaign finance disclosure laws.

Coming against the backdrop of an embattled and sinking Romney campaign, the ruling will be cheered by the GOP as they are likely to double down on their top sponsors to spend even more for negative ads to unseat Obama and try to have majorities in Congress.  

Here's a statement from Gerald Hebert, executive director of the Campaign Legal Center, which sued to force the non-profits to disclose their donors:

"Today’s decision by the DC Court of Appeals is disappointing in that it will allow the continuing wholesale evasion of disclosure laws passed by Congress and upheld by the courts. At issue in this case is an FEC regulation that resulted in an almost complete failure by groups making “electioneering communications” to publicly disclose their contributors.

"The district court had found that the FEC had created a gaping loophole in the disclosure requirement when it issued a regulation in 2007 that required disclosure only of donors who had given “for the purpose of” funding “electioneering communications.”  Today’s decision sends the case back to the trial court, which had overturned the FEC regulation. The Court of Appeals has directed the lower court to provide the FEC an opportunity to revise the regulation in a rulemaking proceeding.  If the FEC fails to issue a new rule, then district court will decide whether the existing rule is arbitrary and capricious, as Representative Van Hollen has argued.

"This order effectively means that there will be no disclosure of the donors funding the tens of millions of dollars being spent on political advertising by 501(c)(4) groups like Crossroads GPS and Priorities USA in the 2012 election cycle.  In the wake of this decision we are once again left with all of the unlimited spending unleashed by the Supreme Court’s Citizens United decision, but with virtually none of the disclosure promised by the narrow five Justice majority in the case.
"The Campaign Legal Center is part of the legal team representing Rep. Van Hollen in this case, which is led by Roger Witten of WilmerHale.  The legal team also includes lawyers from WilmerHale, Democracy 21 and Public Citizen."


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