By Kevin Zwick
Staff Reporter
Capitolwire
HARRISBURG (Aug. 2) – The lead state attorney defending the state’s controversial Voter ID law said Thursday he heard gasps in the courtroom during his closing arguments when he said voting “is not a fundamental right” under the Equal Protection Clause.
However, in a case upholding Indiana Voter ID law, the U.S. Supreme Court did not consider voting in the same category of the Equal Protection Clause as free speech or reproductive rights, according to Senior Deputy Attorney General Patrick Cawley.
His arguments came after Vic Walczak, an attorney for the American Civil Liberties Union, argued that Commonwealth Court Judge Robert Simpson should use “strict scrutiny” when examining whether to grant an injunction to delay the photo ID requirements until after the Nov. 6 general election.
Cawley said the U.S. Supreme Court, in the Indiana case, found voting laws as similar to laws regulating a person’s age to buy a pack of cigarettes.
Walczak and lawyers for the plaintiffs have argued for the past week for an injunction to delay implementing the law because they have said the law imposes on a select group of citizens’ right to vote in Pennsylvania elections.
Lawyers for the plaintiffs called numerous witnesses to testify about hardships they have endured in order to comply with the law.
The law would require most voters to show some form of photo ID that must conform to standards set by the law, which supporters in the Legislature and the commonwealth have argued is necessary to prevent fraud – an issue plaintiffs argued is nonexistent.
Walczak argued the law is irrational, because it imposes “rigorous” requirements to obtain a PennDOT ID, but doesn’t impose the same requirements if a voter were to vote via absentee ballot, place an expiration date sticker on a college ID or government employee ID, or create the state care facility ID.
He also said the distinction of which ID is valid under the law is irrational. Veterans can’t use a Veterans Administration ID card, “but the dog catcher in Podunk Borough can use his employee ID.”
Walczak also argued that using the Indiana case, Crawford v. Marion County Board of Elections shouldn’t apply to Simpson’s Equal Protection analysis.
Cawley addressed the testimony of an election expert who said voter impersonation fraud is “exceedingly rare.”
The state has argued that district attorneys and law enforcement don’t have resources to prosecute claims of voter fraud when more pressing crimes need to be investigated.
“There’s no blood on the sidewalk and no vulnerable victims to show a jury,” Cawley said.
Cawley also emphasized his opening arguments that using photo identification is so prevalent in society that requiring voters to present one is not out of the ordinary.
Walczak said the witnesses brought to testify represent a larger group of voters who could possibly be disenfranchised.
“Witnesses are the tip of the iceberg and that iceberg is very big,” he said.
Cawley argued that for a vast majority of Pennsylvanians, the law presents no problem and it is “highly unlikely that widespread disenfranchisement will occur.”
“It hasn’t happened elsewhere. It won’t happen here,” Cawley said.
Cawley also argued that granting the injunction would harm both parties in the case, since both are currently engaged in voter education and outreach about the law. Simply delaying it would add further confusion, he said.
Judge Simpson, a Republican, said his decision will be issued the week of August 13. Regardless of the ruling, both parties plan to appeal the ruling to the state Supreme Court.
The state Supreme Court, usually a seven-member panel of judges, is currently a six-member panel due to Justice Joan Orie Melvin’s suspension as she faces corruption charges. The Supreme Court is a 3-3 split of Democrats and Republicans. A tie vote in the high court means Simpson’s ruling would stand.
