The case against the state’s controversial new voter ID law is headed to the state Supreme Court, said an attorney involved in the case.
“We’re filing an appeal, we plan on filing it today,” said Benjamin Geffen, a staff attorney with the Public Interest Law Center of Philadelphia, on Thursday. “Once we’re at the state Supreme Court they have greater leeway to re-interpret old decisions or make new interpretations of the state constitution.”
Because of the importance of the case and the fact that Election Day is less than 100 days away, attorneys are asking the Supreme Court for a temporary injunction and to move quickly on a decision whether or not to delay the new law, and deliver a ruling prior to Nov. 6.
On Wednesday, Commonwealth Court Judge Robert Simpson denied an application for preliminary injunction.
“I am not convinced that any qualified elector need be disenfranchised by Act 18,” Simpson wrote in denying a temporary injunction, which would have delayed implementation of the new law until after Nov. 6.
The legislature, Simpson said, has the authority to oversee elections as long as rules are applied equally to all citizens, adding that he could find no evidence that the law would prove to be more of a barrier for one segment of the population than for others.
He refuted a list of nine scenarios laid out by attorneys that they said could result in unequal application of the law — things like inadequate training for poll workers and uneven rulings by local election boards.
“None of these situations are evident on the face of Act 18,” wrote Simpson. “Speculation about these situations does not support invalidation of all lawful applications. [It is] merely an election regulation to verify a voter’s identity … Further, and perhaps more importantly, the legislature has the power to define which electors are qualified.”
What that means, said Geffen as he interpreted Simpson’s ruling which relied in part on state Supreme Court precedent, is “that voting is not a fundamental right under the state constitution.”
In a brief explanation of the decision, Geffen said that Simpson made his ruling based on what is called rational basis review of the law, which “gives great deference to the legislature.”
It is one of two types of judicial review. The other is strict scrutiny review, which forces the state to provide the court with a “compelling state interest to justify the law.”
“Here the court applied a very deferential standard … meaning that if the court can find any rational basis to support the law, the court has to uphold it even if it doesn’t believe there is a very good reason to for the law,” Geffen said.
Rational review is used in cases that don’t involve “fundamental rights” Geffen said, nothing that voting is not a “fundamental right” under either the state or U.S. constitutions.
“A lot of people are surprised to learn that,” he said. “It says that you can’t be denied the right to vote based on race or sex or whatever — but it does not also say you have the right to vote.”
A number of analyses have suggested that the law could have a disproportionate impact on Black and Latino voters. Numbers compiled by the Tribune suggested that 39 percent of Black and Latino active voters — as many as 152,000 and 37,000 people respectively — in Philadelphia could be disenfranchised by the law. That compared to 20 percent of white voters.
Attorneys for the NAACP, the ACLU and the Public Interest Law Center of Philadelphia filed the suit on behalf of 10 Pennsylvania residents who will be unable to vote under the new law. Five of the plaintiffs — Viviette Applewhite, 93; Wilola Lee, 59; Grover Freeland, 72; Gloria Cuttino, 61 and Dorothy Barksdale, 86 — are from Philadelphia. All are Black. In addition, all of them were born out of state and are unable to obtain the birth records necessary to get the Pennsylvania state identification needed to cast a ballot on Nov. 6.
“Petitioners’ counsel did an excellent job of ‘putting a face’ to those burdened by the voter ID requirement,” Simpson wrote in his opinion. “At the end of the day, however, I do not have the luxury of deciding this issue based on my sympathy for the witnesses … Rather, I must analyze the law and apply it.”
Simpson issued his ruling after a seven-day hearing in Commonwealth Court that ended July 25.
A ruling by the state Supreme Court would be final for this particular case. However, Geffen said another suit could come after Election Day when voter information could be used to argue against the law.
In addition, the law has sparked an investigation by the U.S. Justice Department. If that results in court action, the law could be challenged all the way to the U.S. Supreme Court.