Jessie Allen, an assistant professor at the University of Pittsburgh School of Law, raised the citing of Patterson v. Bigelow (1869) in an op-ed Tuesday in the Pittsburgh Post-Gazette. Beginning Thursday, the Pennsylvania Supreme Court will consider an appeal of the voter-ID ruling.
The law approved in Patterson enacted a complicated set of registration procedures for Philadelphia (with its large working-class and immigrant populations) and a simpler procedure for the rest of the state. Equally outrageous, the law required any would-be voter who gave a hotel or boarding house as his address to go through an arduous verification process, including getting two "private householders" to swear that he was qualified to vote. That process effectively disenfranchised the workmen who filled the city boarding houses at the end of the 19th century. [...]At the excellent Election Law Blog, Rick Hasen took note of a reader's thoughts about Patterson on Aug. 15, the day Judge Simpson's ruling came down. In the florid language of the time, the 1869 court decision included:
To be sure, the new voter ID law is different from the law upheld in Patterson. So it is possible to acknowledge Patterson's illegitimacy and find other reasons to approve voter ID.
The [Pennsylvania Supreme] court should not compound its earlier mistake by treating Patterson as legal support for new voting procedures. Given the biased nature of that old decision, using it to uphold new voter ID requirements can only undermine public confidence in the state's electoral—and judicial—process.
Where population greatly abounds vice and virtue have their greatest extremes. A simple rural population needs no night police, and no lock-up. Rogues and strumpets do not nightly traverse the deserted highways of the farmer. Low inns, restaurants, sailors’ boarding-houses, and houses of ill fame do not abound in rural precincts, ready to pour out on election day their pestilent hordes of imported bullies and vagabonds, and to cast them multiplied upon the polls as voters. In large cities such things exist, and its proper population therefore needs greater protection, and local legislation must come to their relief. The freedom and equality of the ballot-box must be protected from the local causes which mar and destroy a free and equal election.In their brief to the Pennsylvania Supreme Court, the appellants in the voter-ID case argue, among other things:
Patterson is an anachronism, predating the modern framework of differing levels of scrutiny by more than half a century and based on outright prejudice. Patterson is no guide to a current construction of the constitutional rights of Pennsylvanians.David Froomkin points out that the use of Patterson is relevant, the appellants argue, because the voter-ID law does precisely what the 19th century law did—tries to exclude groups of people from voting based on demographics. In Pennsylvania today, the target is groups that tend to vote Democratic.
That, as we well know, is precisely what the strict voter-ID laws and other voter suppression techniques recently enacted by Republicans around the country seek to do. They have incurred some big losses in that effort. The Pennsylvania Supreme Court should deliver them another when it rules.