Challengers seeking to stop the new voter ID law from taking effect for the November elections will make their case Thursday before the Pennsylvania Supreme Court.
It is the final venue for the lawsuit under the state Constitution after a lower court in August declined to halt the requirement that voters show certain forms of photo identification at the polls. The Pennsylvania law is only one example of the heightened voter identification requirements that have gained traction nationwide, but it has attracted notice for its location in a populous state that has been treated as a swing vote in presidential elections.
As in other states, the voter ID law in Pennsylvania was supported by Republicans who argued it would protect the integrity of elections, while Democrats countered that the requirement would keep eligible voters from the polls. The American Civil Liberties Union of Pennsylvania and other groups bringing the suit argue that many Pennsylvania voters -- and particularly those who are poor, uneducated, elderly and Hispanic -- lack a driver's license or other acceptable identification.
After a week of testimony about how the law would impact on a number of witnesses, the state's efforts to implement it and the prevalence of photo identification, a Commonwealth Court judge found that obtaining and presenting identification is not an unconstitutional burden on voters. The groups contesting the law argue in briefs filed in their appeal that the lower court used the wrong legal standard to assess the potential harm of the law.
The outcome rests with a Supreme Court occupied by three Republican and three Democratic justices after the suspension of Justice Joan Orie Melvin, a Republican who faces criminal charges. A 3-3 tie would affirm the decision of the lower court.
The voter ID law faces separate scrutiny in a review by the U.S. Department of Justice for discrimination against minorities. In recent weeks, a federal court struck down a Texas voter ID law on the grounds that it discriminates against poor minority voters, while the Justice Department said it would not stop a New Hampshire law from taking effect.
Observers of the Pennsylvania suit divide in their assessment of the constitutionality of the law and the factors the high court is likely to consider. Bruce Ledewitz, an expert in the state Constitution who teaches at Duquesne University School of Law, said he dislikes the voter ID law but believes it may be found constitutional.
"It's part of the job of the Legislature to oversee the franchise, and so the general idea that there should be some system to identify voters is obviously and clearly within the legislative power," he said, adding: "Clearly, they can go too far."
Though the suit was brought under the Pennsylvania Constitution, proponents of both sides of the argument point to decisions in other jurisdictions. In briefs filed late last week, attorneys for the commonwealth and for Gov. Tom Corbett and Secretary of the Commonwealth Carol Aichele cite a 2008 decision of the U.S. Supreme Court upholding an Indiana voter ID law against a constitutional challenge.
Jill Engle, a professor at the Penn State University Dickinson School of Law, signed onto a brief filed by Pennsylvania law professors asking the court to consider cases in which state or federal courts in Georgia, Missouri and Wisconsin invalidated voter ID laws. While the Pennsylvania court is not bound by these decisions, she said, it can look to other courts for guidance.
"There is no state voter photo ID law with provisions as stringent as the Pennsylvania one that has been upheld," she said.
Seth Kreimer, a University of Pennsylvania law professor who chairs a Philadelphia committee of the ACLU, said that while the Commonwealth Court decision relied on the U.S. Supreme Court decision upholding the Indiana voter ID law, the state Constitution provides additional protections for voting.
"The Pennsylvania Constitution, unlike the federal Constitution, has explicit definitions of who's entitled to vote and explicit protections of the right to vote," Mr. Kreimer said. "The Pennsylvania courts have historically treated the rights provided by the federal Constitution as a floor and not a ceiling."
But Katie Goldman, a Pittsburgh attorney who chairs the city's chapter of the Republican National Lawyers Association, said that after an extensive lower court hearing and a decision that was "meticulous in its fact-finding," she expects the Supreme Court will allow the law. She noted the Commonwealth Court judge found no evidence of disenfranchisement and she pointed out that the 93-year-old Philadelphia woman whose name leads the lawsuit has obtained photo identification.
Oral arguments in the case are scheduled to take place Thursday in Philadelphia.
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