"This is a high-profile case. There's a lot of anxiety here," he said. "There will be a lot of people very unhappy with my decision no matter what I do."David Gersh, the attorney representing the law's challengers, opened by saying the fraud that the law purports to stop doesn't exist. "The integrity of the electoral process is not enhanced by turning people away from the polls."
But, he said, "take heart," because the case will likely go to higher courts before it is over.
Speaking on behalf of the law, known as Act 18, was Patrick Cawley, senior deputy state attorney general: "Voter fraud will go undetected unless a tool, voter ID, is there to detect it." The attorney general's office has argued in a brief that plenty of time remains before the election for voters to obtain a photo ID, and the state has removed obstacles in the way of citizens seeking to acquire them.
The plaintiffs have an uphill battle. The U.S. Supreme Court ruled in 2008 that Indiana's voter ID was constitutional:
The opinion left open the possibility that voters who had proof that they were adversely affected by such laws could petition the courts but made it clear that it would be difficult to prevail.But activists who see the photo ID laws in Pennsylvania and elsewhere as daggers pointed at Democratic turnout hope that focusing their argument on state constitutional protections will get them around the Crawford decision.
Witold J. Walczak of the Pennsylvania ACLU, which filed the lawsuit along with Advancement Project and the Public Interest Law Center of Philadelphia, agreed that the Supreme Court’s decision in Crawford v. Marion County Election Board made challenges more difficult.
“Going into federal court is like going to the plate with two strikes already against you,” Walczak said.
In addition to the court case filed by the American Civil Liberties Union on behalf of 93-year-old Viviette Applewhite, the U.S. Department of Justice is investigating the law's impact under the Voting Rights Act. Applewhite, now being called the "Rosa Parks of voter ID," was in court Wednesday, parked in her wheelchair. She has voted for years, but she doesn't drive and has no photo ID. Her attempts to get the required birth certificate so she can prove she is who she says she is have not succeeded.
Advocates of the law originally argued that only 90,000 Pennsylvanians would be affected. The state's own study, however, found that 750,000 were at risk of not being able to vote for lack of the required photo ID. That's 10 percent of the eligible population. A study commissioned by the plaintiffs in the case has concluded, however, that up to 1.4 million registered voters might be excluded from casting ballots.
Philadelphia's City Paper reported Wednesday that the number may actually be closer to 1.6 million. In heavily Democratic Philadelphia alone, the alternative newspaper reported, those without proper ID may run as high as 437,237 people—43 percent of city voters.
Whatever the tally, as my colleague Joan McCarter wrote Monday: "That's Pennsylvanians who are eligible to vote. More striking, more than a million actual registered voters don't have the proper ID. Most of those registered voters think they have valid ID, but actually don't, the researchers found."
Those most affected are the usual suspects in the GOP pantheon of those deserving of the squinty eye at the polls: the poor, single women, minorities, younger voters and the oldest ones. On average, that is, people more likely to vote Democratic. Pennsylvania House Majority Leader Mike Turzai, a Republican, was perfectly candid about it: the Voter ID law "is gonna allow Governor Romney to win the state of Pennsylvania, done."
As Turzai makes clear, suppressing hundreds of thousands of votes with this tool, could easily skew the results in Pennsylvania, not just in the presidential race but on downticket races throughout the state. By hook or by crook, Republicans are determined to keep people it can't count on away from the polls. And yet it is they who label others unAmerican.