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.
The plaintiffs’ attorneys—represented by the Advancement Project, ACLU, SEIU—brought at least a half-dozen witnesses to the stand who all testified about the troubles they encountered trying to get voter ID. In the cases where some of those witnesses were able to get ID, they were denied multiple times at first because of glitches in the state’s voter registration verification system. Almost half of the courtroom space yesterday was packed with additional witnesses discovered by the civil rights attorneys, many of whom didn’t have the chance to testify due to time. More than twenty affidavits were signed by others attesting to the fact they couldn’t get ID or had major problems attaining it. In the original hearing in July, in the same courtroom, Over two dozen witnesses were brought to the stand testifying to the same, many of them testifying through the stories of their lives.
But none of this moved Hickokm who said in closing arguments that those people “were frustrated, but frustration is a part of everyday life,” but that doesn’t add up to disenfranchisement.
I caught up with Hickock after the trial for further explanation of the state’s understanding of what disenfranchisement meant. I also asked if the unquantifiable number of people who got so frustrated by the process—hours’ long lines and state workers confused by the law, as testified to in court—that they decided to go home and not vote, counted as disenfranchisement.
“No,” said Hickok “Because there are other options besides a PennDOT ID. If you look back at old cases, it used to be in Pennsylvania that you had to show up with a neighbor and an affidavit and demonstrate that you are who you say you are and where you lived. And nobody considered that disenfranchising. This was back in the 1800s, and this was one of the first challenges in—‘Oh, you’re preventing me from voting’—and the answer was ‘No, your neighbors have a right to know that the person who is voting with them is a someone who is eligible to vote.’ And so in that way it is not disenfranchising. Disenfranchisement comes in two categories: It comes in a category where you say no women can vote. I’m a woman, I’m not going to be able to change that, so I now cannot vote. It’s also disenfranchisement when you create an uneven standard, which is what the literacy tests were, right?”
And so today’s law isn’t considered a literacy test because we all have to read the same thing to get ID and vote, right?
“Well, they don’t have to read anything,” said Hickok. “They just have to be able to show a picture ID” to vote.
Except that’s not true. Hickok and Pennsylvania’s other attorneys just testified in court that they exhausted over $5 million on advertisements and other education and outreach materials that people have to read to know what the new mandates are for voting. If you already have ID, of course, you don’t have to read any of this. And as even the Supreme Court acknowledged, the people most likely to not have ID are vulnerable populations such as the elderly, disabled and those of low income. But these aren’t “complete” people according to the state. Hickok told me “A picture ID is something that helps people to be a complete member of society and access things that should be available to them.”
I guess one of those things is the right to vote as guaranteed by the state’s constitution—but the state is saying that right doesn’t extend to incomplete people. What we’re talking about here is a redefining of “disenfranchisement” just fifty years after civil rights heroes fought, bled and died to show the nation exactly what disenfranchisement meant. Thank God the 1960s courts finally overturned bad voting laws instead of merely saying “Well, you may get frustrated with reading the Constitution backwards, or counting how many marbles are in a jar, or counting the bubbles on a bar of soap just to vote, but, hey, that’s just part of everyday life.”
Katherine Culliton-Gonzales, the director of voter protection for the Advancement Project, agreed, telling me, “Poll taxes and literacy tests disenfranchised a certain parts of the population but of course some people could pay those poll taxes or pass those literacy tests,” during the days of Jim Crow. “So while it’s true that there is a blanket disenfranchisement [definition], but there’s also the issue of discriminatory impact, which is an important part of the Pennsylvania constitution and also an important part of federal voting laws like the Voting Rights Act. And keep in mind that the uneven standard in this case affects a whole lot of people in Pennsylvania—it’s not just one person, but many hundreds of thousands of people in this situation who may not be able to get this ID, and the judge needs to consider that.”
The judge did in fact say that he was “surprised” by the number of free IDs the state had given out in the past month—a mere 11,000 when the lowest estimates of people without ID in the state was around 90,000. “I expected more,” said Simpson.
He then indicated that he might strike a compromise where he tailored an injunction around how provisional ballots are counted. Judge Simpson said he found “disenfranchisement language” around provisional ballots in both the voter ID law and the state’s general election code because there are conditions around which those ballots could be tossed out. The state seemed to concur when Hickok said they would be open to an injunction based of the “offending activity” in the law.
“What do you think the offending activity is here?” Simpson asked her. “It seems to me it’s somebody whose vote won’t count.”
—Brentin Mock For more from Voting Rights Watch, check out The Nation’s latest issue.