OFF THE FLOOR
A Capitolwire Column
By Peter L. DeCoursey
HARRISBURG (Sept. 13) – The Supreme Court hearing on the Voter ID law was frankly, a lot of fun to watch. If you could navigate the legalese, and it wasn’t too bad, there were spirited debates and illuminating arguments about the law.
But throughout the hearing, it was all about whether Justice Max Baer could lay groundwork for Chief Justice Ron Castille to vote to delay the implementation of the law.
So while Justices Seamus McCaffery and Debra Todd, both Democrats, shredded the law and Justice Mike Eakin replied with withering disdain to their arguments, the quieter drama was watching how upset Castille was getting with Todd and McCaffery while Baer tried to entice the chief into deciding he could delay the law past this election. Because with a 6-justice court pending the resolution of suspended Justice Joan Orie Melvin, Castille is the key to reversing the law, the result sought by Baer.
While Castille and Baer and Todd delved into how Castille and the Democrats could vote to delay the law, McCaffery, Todd and Eakin debated the headline issues.
It was just plain old public debating fun, and just plain old fun as McCaffery cited House Majority Leader Mike Turzai’s statement to Republican State Committee that the Voter ID law would ensure Republican Mitt Romney will win the state’s 20 presidential electors.
So after asking “what’s the hurry” for this law requiring voters to show unexpired photo ID when voting, McCaffery asked: “Could it be politics maybe? Do we have maybe one of the leaders in the Legislature standing up and saying that now it enables a certain person to win?”
Chief Justice Ron Castille, clearly annoyed by McCaffery’s bringing in the comment of Turzai, R-Allegheny, broke in: “Is there a question, Justice McCaffery?”
McCaffery, who loves confrontation, responded by asking the pro-Voter ID attorney: “Do we give deference to the Legislature” to allow this regulation of voting, when the Legislature “in what seems to me to be a political move, is now going to trample on the rights of our citizens?”
McCaffery and Justice Debra Todd also pressed commonwealth attorney John Knorr about the commonwealth’s stipulation that they would not present evidence about voter fraud, which House Republicans cited as a reason to pass this bill.
“There is no voter fraud, right?” McCaffery asked, several times.
Eakin, a Republican, rumbled: “There has been fraud since George Washington ran and there will be fraud 200 years from now.”
After several discussions of how many citizens might not have or get Voter ID as of Judge Robin Simpson’s decision in July, John Knorr, backing the law, said he thought the number was closer to 89,000, as Judge Robin Simpson found in upholding the law in July.
McCaffery said even if many of those got voter ID between now and election day, “in November we are still disenfranchising tens of thousands of Pennsylvanians” if the law’s implementation is not delayed.
McCaffery then proffered, as he would again during the hearing, the Carter-Baker Commission’s recommendation that a photo ID requirement be put in place over two federal elections, or over 2-3 years.
David Gersch, arguing for opponents of the law, first agreed with that, then added he could live with that, as long as the state, ensured “all qualified voters can get a form of ID” acceptable at the polls.
But Eakin quickly sniffed out that Gersch was saying that was OK only if all voters got the new IDs and not a single voter was prevented from voting for not getting a valid photo ID.
Even McCaffery didn’t buy Gersch’s argument, saying, “If you don’t have photo ID by two to three years” from now, “then shame on you.”
Castille then jumped in saying that if the court believed Gersch that a bill passed in March was “rushed” into law, “the rushing of this is not a reason for us to overturn a lower court judge.”
Gersch replied: “Not merely that the Legislature was unwise to rush it, but by rushing it, that people would be unable to vote.”
Eakin pounced again, querying: “What would be a reasonable time frame” for delaying the implementation of the law.
Gersch said the Legislature could re-do the law, and that a trial on the merits of the law was needed, but could not occur before the election, so the law has to be suspended.
Eakin said: “You are not conceding this could ever be implemented. .. There will always be someone burdened by it just like there are” people unable to register to vote now.
Gersch said: “If the Legislature cannot get everyone the right to vote, then the legislation should not be upheld.” He said other states sent everyone an ID or allowed all to vote by absentee to avoid the requirement, or vote after signing a statement they were entitled to vote.
Gersch said a further problem was that whether there were 89,000 folks who needed ID to vote or 1 million, that PennDOT can only do 45,000 IDs a month, and that they could only produce 10,000 of the proposed state voter-only photo IDs.
Alfred Putnam, representing Gov. Tom Corbett, noted that none of the original plaintiffs who brought the suit now lack Voter ID or the documents needed to get them.
“We don’t believe there are countless people out there who can’t get to vote,” he said, later adding that there are no “actual people” cited by the plaintiffs who cannot get the proper ID.
McCaffery and Todd also pushed Knorr on the question of whether adding a photo ID requirement to vote unconstitutionally added a new requirement for voters. They said the constitution guaranteed the ability to vote for those who are registered, but did not allow new requirements for them to vote.
Knorr responded that voter signatures are now checked at the polls to make sure the proper voter is casting the ballot, so making that a photo ID requirement rather than a signature check was a different way of confirming voter identity, since confirmation of identity was not a new requirement.
But while all that debate over “Is the Voter ID Law good or does it suck?” occurred, the big deal was in procedural arguments.
Knorr and Putnam argued that to delay the law, the Supreme Court had to find the Legislature exceeded its authority and that Gersch’s clients would certainly win when the case was heard.
Since McCaffery said the law was OK but the speed of its implementation was not, for the court to find that Gersch’s clients will certainly win would be a major stretch.
That prompted Gersch to argue the court could delay the implementation of the law under a different legal test, “the plainly legitimate sweep test,” which would be to find there are tens of thousands of voters to be disenfranchised so the injunction should be issued, and the law’s implementation delayed.
Baer quickly noted that Castille used that same standard from a federal case called Clifton, in another decision the chief justice wrote. Then Baer flashed that quick, half-feral grin that, ever since he was a young lawyer, has been a sign of his feeling he made a major point, his contemporaries say.
McCaffery said there was another case, Fisher v. DPW, when an injunction was issued when it was determined there would be “a substantial legal question… and immediate harm” without an injunction.
Putnam responded that if the court decided Gersch’s clients would not win at trial, then while the justices could ignore that precedent, they should not.
But Todd and Baer kept raising that issue, and noting the Clifford precedent, which Castille has previously relied upon, and would allow him to delay the law.
So while today’s real action dealt with technical arguments – as much by rival justices as by rival attorneys, aimed at Castille, the potential swing justice – it was leavened by a fun, sometimes sparkling argument over the law.
And only time will tell whether Castille was more won over by Baer or annoyed by McCaffery and Todd. He snapped at both for advocating views. He interrupted McCaffery to ask him when and if he was moving to a question. After the apparent end of one lawyer’s presentation, he snapped at Todd she could only keep going keep talking if she would “ask a question.”
Baer on the other hand tried to keep his comments as nerdy and legalistic as possible. I’m not sure if that is because Todd and McCaffery have given up on Castille and he has not, but he tried to put a different kind of pressure on the chief justice.
Anyway, I am not sure if the decision will be good law or not, but kudos to the court and the Pennsylvania Cable Network for televising it.
Today was certainly good civics, and for court or politics nerds, good fun.