The voter ID law hearing in Pennsylvania’s Commonwealth Court closed yesterday and now Judge Robert Simpson will have plenty to mull over, including what the true definition of “disenfranchisement” is. The judge has heard two days of testimony from civil rights attorneys representing people overburdened with trying to obtain ID for voting, and from the state government, which claims no such burdens exist. He has until October 2 to make a ruling, but has indicated that he’ll make his decision much earlier, mostly because he anticipates that his ruling will be appealed back to the Pennsylvania Supreme Court anyway.
The higher court found flaws in Simpson’s July ruling—the initial Commonwealth Court hearing where he denied civil rights attorneys an injunction on the law—saying that he made a “predictive judgement” that placed faith in what the state said it will do to help people get ID, but before actually having done it. The Supreme Court also gave Simpson direct instructions to grant an injunction if the law’s provision on offering free ID to registered voters led to disenfranchisement—which those justices already found to be the case, and that the state acknowledged based off how the law was written. Simpson was ordered to make a new ruling through examination of the law as currently applied as opposed to what the state prophesied.
We reported a day after the Supreme Court ruling that their instructions to Simpson was subject to Simpson’s interpretation. Speaking with University of Pittsburgh law professor Jessie Allen, who’s been following the case, she hinted that Simpson might find away around the Supreme Court’s orders:
The Supreme Court gave clear orders — if the law don’t fit, then you must acquit voters from having to follow it. Simpson doesn’t have the discretion to go above those instructions, but they are still subject to his interpretation, says Allen. Still, there will be little wiggle room for that. “The trial judge is the primary finder of facts and he has to examine whether [implementation of the law] meets the standard the law sets.
Allen also predicted that Pennsylvania would modify their law to meet Simpson’s favor, which is exactly what happened. The day before this week’s hearing started, Pennsylvania loosened up its rules on how to obtain a free voter ID, though many of its employees didn’t get the memo until the morning of the first day of the hearing, which started Tuesday. As a result, lawyers from both sides spent much of that day and yesterday (no hearings on Wednesday to observe Yom Kippur) scrambling to find witnesses and documents that could respond to rules that had literally just been implemented.
What no one predicted was that the state would also attempt to modify the definition of “disenfranchisement.” The state’s attorney Alfred Putnam said at the close of Tuesday’s session, “The Supreme Court did not say that you get disenfranchised just because you are not able to demonstrate who you are to vote. That’s not disenfranchisement.”
That message popped up again yesterday, most emphasized by the state’s other attorney Alicia Hickok, who said in closing arguments that the civil rights attorneys didn’t show evidence of people who couldn’t vote, but instead showed evidence of “people who were resentful of the process they went through to get IDs” to vote.