The local legal press covered the oral arguments (free registration required) yesterday. As we have become accustomed to lately, the questioning seemed to be split by party affiliation. Even though the court is split 3-3 and a tie would mean that the lower court's decision would stand, there is room for hope.
Justice Seamus (no, he wasn't strapped to the roof of Mitt Romney's car) McCaffery went after the State's attorney:
Should we allow the legislature to, in what seems to me to be a political measure, to trample on the rights of our citizens?Deputy Attorney General John Knorr III (honestly, how many more generations will this be happening) asked that the justices follow the U.S. Supreme Court's 2008 holding in Crawford v. Marion County Election Board, a case involving a similar law in Indiana that was upheld by the U.S. Supreme Court on the grounds that the slight burden imposed by the voter ID law was outweighed by the state's legitimate interest in discouraging voter fraud.
Justice Debra Todd was having none of it.
She ... noted that there has been no evidence of voter impersonation and read from the commonwealth's stipulation, filed in the lower court, stating that there has been no investigation or prosecution and no knowledge of in-person voter fraud in Pennsylvania.She further questioned the timeline set in place by the General Assembly.
What's the rush?We, of course, know what the rush is:
Republican Justice Thomas Saylor grilled the attorneys representing the Commonwealth about the section of Act 18 that stipulates that the Department of Transportation would provide IDs for voting to people who lack the proof of their identity required for standard IDs, a section that clashes with federal regulations for issuing secure IDs. The exchange:
Saylor: Will that ever happen?Cynically, Knorr told the Court that although voting is a fundamental right, "not everything that affects that right is fundamental." I suppose that's what Chief Justice Rehnquist said when he enforced literacy tests in Arizona.
Knorr: I think I have to say no, based on what federal law requires.
Saylor: You can't comply with the letter of this law?
Knorr: You can't comply with the letter of that section.
Then our side went. Attorney David Gersh took the reins. Gersh argued that the Court should grant an injunction until there can be a full trial on the merits of the law, because it burdens voters. Republican Justice Michael Eakin posited that there would never be a time when every voter had the proper ID. "There will always be someone burdened by it," he said.
Again, Justice Todd to the rescue.
Reading from the Pennsylvania Constitution, Article 7, Section 1, which sets out the basic qualifications for voters in the state, Todd said of the voter ID law that "it does appear to be completely contrary to the language of our constitution."Laughter. Do these guys realize that they tipped their hand that the whole purpose of the law was to create new burdens that the poor, elderly and minorities would have difficulty bearing?
Knorr pointed out that, until now, voters identified themselves by signing in at their polling places. "This is not different in kind from that," he said.
"But it's a new burden," Todd said.
"Sure, but it's minimal," Knorr answered, to laughter from the packed courtroom.
The ACLU expects a ruling by the end of the month. That's two short weeks, folks. Keep your fingers crossed for us in the Keystone State.