Why the Court's Voter ID Law Ruling is Wrong

, Judge Robert E. Simpson Jr., of Nazareth, decided a case brought in the Commonwealth Court by , organizations and public groups opposing that requires citizens to present a valid photo ID in order to vote. The plaintiffs lost. Not surprisingly, Judge Simpson is a Republican. Republican officials almost unanimously approve of the decision and Democrats do not.

One of the things they don’t teach you in law school is that more often than not, the outcome of an appeal depends upon the political, religious or social philosophy of the judge or judges hearing the appeal--not the arguments of the attorneys or the “law” applicable to the case. Thus when the New Deal first got started in 1933, the conservative majority on the Supreme Court held unconstitutional much of its legislation. Things changed as FDR got to appoint more judges. More recently, the Court majority changed again, this time to conservatives appointed by Nixon and George W. Bush. Lo and behold, they have run amok, permitting, among other things, super-political action committees to spend unlimited amounts of money supporting one candidate or the other.

The decisions written by judges often seem persuasive. This is because almost every attorney who has passed the bar can make a logical argument for one side or another. The fact is that judges write opinions to justify their decision--egad, Judge Simpson wrote 74 pages which I had to read--in order to give the appearance of fairness. Don’t get me wrong. Some of these opinions are brilliant; most of them, however, are merely ordinary and are often written by law clerks on the instructions of the judge. I know. I was once a law clerk to a federal judge myself.

Justice Simpson’s law clerk didn’t do very well. Right off the bat he determined that the harm of issuing a preliminary injunction against the state (because notices had already been sent out to voter registration officials about the new law), would be worse than the harm to theoretical voters. All I can say is, good God, what are courts for if not to protect the rights of voters? The opinion went on to deal with all sorts of other issues, but since the Judge had already ruled on the preliminary issue, his thoughts were technically irrelevant.

The interesting thing was that the Republicans in the legislature never demonstrated that there was or ever had been any instance of false voting in the state. Indeed, the motive was to ensure a Republican victory in November. The Republican House leader of the Legislature himself said at a GOP activist gathering after the bill passed that it is “going to allow Governor Romney to win the state of Pennsylvania.”

As to inconvenience, all the state had to do if the court ruled against it is to send a notice to the voter registration officials simply saying that identification is not required.

There have been a large number of comments on Patch and elsewhere to the effect that it is easy to get an ID that would satisfy the new law. While I disagree that it is easy for many people to do that, the point is that the United States Constitution absolutely prohibits anything of the kind.

The Fourteenth Amendment provides as follows:

"1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [Emphasis added]

There is no question that the right to vote is a “privilege” of citizens, and citizens are citizens whether they can prove it or not. And they are entitled to “equal protection,” that is, if others vote they must all be allowed to vote. Indeed, the Supreme Court has held unconstitutional poll taxes as low as $1.50. Obviously the amount of time and money necessary to obtain an ID that satisfies the law will cost a lot more than that.

Finally, I would say that photography was invented long after the Constitution was adopted. The Founding Fathers never contemplated the ID check the Commonwealth Court approved in Pennsylvania.

In short, Judge Simpson is simply wrong and his opinion should be reversed.

(In the interest of full disclosure, the Supreme Court decision in Crawford v. Marion County Election Board (2007) was decided by a very mixed court--only three judges supported the opinion of the court--and on somewhat different facts than Judge Simpson faced. This decision is cited against the constitutional arguments I made above. If this opinion doesn’t prove that all “activist” judges are not liberal, then language is useless.)