Federal case also waits in the wings...
By Brad Friedman on 8/6/2012, 12:59pm PT  

It's looking good for voters this year in the state of Pennsylvania, if opponents of the state Republicans' new polling place Photo ID restrictions are correct in their predictions, in any case.

Last week, on the heels of the Secretary of the Commonwealth of Pennsylvania, Carole Aichele (the woman in charge of implementing the new law in the Keystone State), admitting, under oath on the witness stand, that she didn't even "know what the law says," we predicted the statute was likely to "go down in flames", thanks to the legal challenge brought against it by the ACLU and other civil liberties groups on behalf of 10 plaintiffs who will have trouble casting their once-legal vote this November if the law is allowed to stand.

Aichele's admission followed a remarkable stipulation by the Commonwealth, before the trial began, that, in fact, "There have been no investigations or prosecutions of in-person voter fraud in Pennsylvania"; that they "are not aware of any incidents of in-person voter fraud in Pennsylvania and do not have direct personal knowledge of in person voter fraud elsewhere"; and that the state would offer no evidence "that in person voter fraud is likely to occur in November 2012 in the absence of the Photo ID law."

Of course, the extraordinarily rare case of in-person impersonation at the polling place remains the only type of voter fraud that can possibly be deterred by such laws, even as data from the state reveals that the once-legal votes of some 1.6 million formerly eligible Pennsylvania voters could be imperiled if the law is allowed to stand. By way of comparison, President Obama was said to have won the state in 2008 by just over 600,000 votes.

We're not the only ones with the sense that the GOP's voter suppression law is likely to "go down in flames" in this trial, which had its closing arguments last week.

Penda D. Hair, co-director of the Advancement Project, one of the several civil rights groups who cooperated in bringing the complaint against the state, believes "this should be a slam dunk victory for plaintiffs which should result in a preliminary injunction."

Based on what actually happened at this trial --- and didn't --- she may have good reason for that prediction...

Hair explains that "The state really put up very little defense: hardly any witnesses. Mostly they just said they should be able to do this because they’re the state, and I don’t think that’s going to be sufficient when you’re talking about the state constitution’s protection of the free exercise of the franchise."

The plaintiffs sued under state law, charging that the new restrictions on voting were in violation of the PA state constitution's guaranteed right to vote.

TPM's Ryan Reilly summarized the reasons for the plaintiffs' confidence, as detailed in an Advancement Project press release issued after closing arguments:

[S]tate officials admitted they underestimated the number of registered voters without acceptable photo ID, admitted the law will disenfranchise voters, admitted the law will hold different voters to different standards, admitted voters casting an absentee ballot will be able to vote without ID, Pennsylvania’s Secretary of State admitted she didn’t know details about the law’s requirements and Pennsylvania’s House majority leader made comments opponents of the law believe showed the law is politically motivated.

No matter the outcome of the case, the U.S. Department of Justice indicated just before the state trial, they too were probing the legalities of the law, indicating that they may make a federal case of it by filing their own complaint under Section 2 of the federal Voting Rights Act (VRA).

So, even if the law passes muster at the state level, it faces another potential big obstacle at the federal level.

The DoJ has taken action, of late, to block similar polling place Photo ID restrictions in Texas and in South Carolina. Both states, thanks to their long history of racial discrimination at the polls, are "covered jurisdictions" under Section 5 of the VRA, and thus have the burden of demonstrating that any new election-related laws are not discriminatory. (Both states are also appealing the DoJ's refusal to grant preclearance for their laws, after the DoJ found them discriminatory, to a panel of federal judges.)

But the DoJ has yet to file any Section 2 cases against Photo ID restriction laws in jurisdictions not covered by Section 5. Both sections of the federal statute prohibit discriminatory election laws, but whereas Section 5 covers only certain jurisdictions which are required to prove their laws do not discriminate, Section 2 covers all 50 states, while leaving the DoJ with the burden of proving, themselves, that the law will have a discriminatory effect.

In short, Section 2 cases are a heavier lift for the DoJ, but, as we argued in February, it's unconscionable that they have yet to bring such challenges in states like Kansas, Tennessee, Wisconsin and Pennsylvania, which have all recently passed disenfranchising Photo ID restrictions, but which are not covered by Section 5 of the VRA.

Pennsylvania would be a good start, if the law isn't already overturned under the state constitution, but the DoJ remains delinquent in protecting voters elsewhere in states not as crucial to an Obama victory this fall.

The good news for the moment, however --- if opponents of the PA law are correct --- is that it looks as if that law may face the very same fate that the nearly-identical law passed by the GOP in Wisconsin earlier this year did when it faced a similar state challenge. That is, it will be found in clear violation of the state's constitutional right to vote.

A verdict in the PA state case is expected next week, according to Commonwealth Court Judge Robert Simpson.

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