A ‘non discriminatory’ burden

    Mitt Romney’s shaky prospects for winning Pennsylvania got a big boost this morning when a lower court judge ruled in a 70-page opinion that the governing GOP can keep its new photo-ID law, the one that creates serious bureaucratic hurdles for hundreds of thousands of voters – especially downscale urban minority citizens who are sympathetic to President Obama.

    This is great news for the Republicans, who feared they couldn’t capture the state (which has gone Democratic since 1988) unless they managed to game the system. And so they did. As House Republican leader Mike Turzai declared, in remarks at Republican State Committee summer meeting, the photo-ID requirement, “is going to allow Gov. Romney to win the state of Pennsylvania.”Which brings me to Judge Robert Simpson’s opinion – specifically, to page 60, where Turzai makes a cameo appearance. Simpson acknowledged Turzai’s remarks, and called them “disturbing.” However, the judge wrote, “I declined to infer that other members of the General Assembly shared the boastful views of Representative Turzai without proof that other (legislative) members were present at the time the statements were made. Also, the statements were made away from the chamber floor.” Besides, the judge wrote, just because “partisan interests” may have motivated some legislators, that doesn’t mean the law should be thrown out or blocked via an injunction.The judge is right about that, as far as it goes. During any legislative process, partisan interests are typically part of the mix. But, as Mike Turzai clearly indicated, the prime motivation for the photo-ID requirement was patently partisan. Indeed, the Pennsylvania law has to be viewed in context, as just one facet of a nationwide Republican plan – by GOP legislatures in 34 states – to target the voters who are most likely to help the president.But Judge Simpson was under no obligation to view that context.Fortunately for the GOP, courts are traditionally reluctant to wade into what they often call “the political thicket.” Courts traditionally give wide latitude to legislatures, with respect to election law. Courts tend to leave those laws alone, ruling them unconstitutional only in those rare instances when the law’s abuses are found to be particularly flagrant. Simpson, by upholding the photo-ID law, hewed to the traditional standard; indeed, he wrote, “I do not have the luxury of deciding this issue based on my sympathy for the witnesses” who lack photo IDs.Simpson’s respect for judicial precedent is clear throughout his opinion. (It’s hard to argue with judicial precedent.) Legislatures have “a wide field” to enact their own election rules, he wrote, and he quoted the Pennsylvania Supreme Court, which ruled in 1914 that “nothing short of gross abuse (can) justify a court in striking down an election law.”But isn’t the photo-ID requirement an example of “gross abuse,” given all the evidence that it disproportionately affects blacks, Hispanics, students, and urban elderly – who lack government IDs at a higher rate than the general citizenry? Doesn’t that requirement violate the state constitution, which decrees that the right to vote shall be “free and equal?”Simpson said no. He cited that 1914 state high court opinion, which defined “free and equal” very narrowly. Quoting from the ’14 ruling, free and equal “means that the voter shall not be physically restrained in the exercise of his right of franchise.” No need for physical restraint in 2012. In this era, the restrainers come with briefcases.Simpson ruled that the photo-ID requirement should remain in force because the affected voters are not “irreparably” harmed. The law, he argued, “does not expressly disenfranchise or burden any qualified elector or group of electors.” (Huh? It doesn’t expressly burden certain groups?) The law, he argued, “imposes only a limited burden on voters’ rights” – because, as he sees it, the affected voters who lack photo IDs still have time to obtain them (he seems to have great confidence in the curative potential of the state bureaucracy). He also says that the affected voters can simply participate via absentee ballot. (If Pennsylvania Democrats are smart, they’ll mount a major push for absentee ballots.)The ACLU, which sought the preliminary injunction, will naturally appeal Simpson’s ruling. It no doubt believes that Simpson is wrong – and naive – to describe the photo-ID requirement as “a reasonable, non-discriminatory, non-severe burden” and that the governing GOP’s autumn efforts to ease that burden will be conducted “in a non-partisan, even-handed matter.” But the ACLU will have to sway four of the six voting members of the Pennsylvania Supreme Court, a potentially tough task.Meanwhile, in pivotal Ohio, Republican election officials have contrived to schedule long early voting hours – including evenings and weekends – in the Romney-friendly suburban counties. Republican election officials have also contrived to limit the early voting hours – no evenings, no weekends – in the Obama-friendly cities of Cincinnati, Cleveland, Columbus, and Akron. It’s a shame, for democracy itself, that the governing GOP needs to rig the game in order to nudge Romney across the finish line, but such is the broader context beyond Judge Simpson’s purview.   ——-Follow me on Twitter, @dickpolman1


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