The GOP war on voting: Jim Crow goes on trial in Pennsylvania

Postesd by AzBlueMeanie:

Gary Trudeau is running a series of Doonesbury comic strips this week on the return of Jim Crow laws to suppress voting by minority citizens. Today's strip is about the GOP voter suppression law in Pennsylvania.

A coalition of civil rights groups heads to court on Wednesday for a state court trial challenging the GOP voter suppression law under Pennsylvania’s constitution. Ryan J. Reilly at TPM reports Ahead Of Voter ID Trial, Pennsylvania Admits There’s No In-Person Voter Fraud:

In this case, Pennsylvania might have handed those groups and their clients (including 93-year-old Viviette Applewhite) a bit of an advantage: They’ve formally acknowledged that there’s been no reported in-person voter fraud in Pennsylvania and there isn’t likely to be in November.

The state signed a stipulation agreement with lawyers for the plaintiffs which acknowledges “there have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do not have direct personal knowledge of any such investigations or prosecutions in other states.”

Additionally, the agreement states Pennsylvania “will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania and elsewhere” or even argue “that in person voter fraud is likely to occur in November 2012 in the absense of the Photo ID law.”

Pennsylvania has said that over 750,000 registered voters do not have ID from the Transportation Department, a problem more concentrated in urban centers like Philadelphia. One top state Republican has claimed the voter ID law would help Mitt Romney win the Keystone state and Democrats have already altered their campaign plans should the law survives legal challenges.

Judge Robert Simpson will hear the case, Applewhite et al. v. Commonwealth of Pennsylvania, et al., in Harrisburg starting on Wednesday. The ACLU expects the trial to last five to seven days.

The right to vote is a fundamental right and has been the source of significant Supreme Court litigation. Fundamental Rights and Equal Protection Clause Analysis:

The Constitution addresses voting in Article II and four subsequent amendments (the 15th, forbidding discrimination in voting on the basis "of race, color, or previous condition of servitude;" the 19th, forbidding discrimination in voting based on sex; the 24th, prohibiting "any poll tax" on a person before they can vote; and the 26th, granting the right to vote to all citizens over the age of 18). The Court has chosen to strictly scrutinize restrictions on voting other than those specifically prohibited by the Constitution because, in its words, the right to vote "is preservative of other basic civil and political rights." It should be noted, however, that "strict scutiny" in the fundamental rights cases tends to be, in actual practice a little less strict than in suspect classifications cases. The Court, for example, has upheld reasonable (e.g., 50-day) residency restrictions on voting and state laws denying the vote to convicted felons, as well as age and citizenship requirements.

If the strict scrutiny standard of review is not applied in actual practice, then the heightened scrutiny standard of review most assuredly should apply.

However, the U.S. Supreme Court applied a minimal rational basis standard of review to Indiana's voter ID law in Crawford v. Marion County Election Board, 553 U.S. 181 (2008). At trial, the state of Indiana, like the state of Pennsylvania in this case, failed to present any evidence of actual instances of in-person voter fraud or any prosecutions by the state of Indiana for voter fraud.

Nevertheless, the Supreme Court ruled 6-3 to uphold the constitutionality of the photo ID requirement, finding it closely related to Indiana's legitimate state interest in preventing voter fraud (for which there was no evidence in the record), modernizing elections, and safeguarding voter confidence.

Justice John Paul Stevens, now retired, wrote the majority opinion. Unbelievably, Justice Stevens wrote "Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek." In other words, if U.S. citizens are disenfranchised of their fundamental constitutional right to vote because they are unable to obtain a photo ID, "that's too bad for you." Voting is not really a fundamental constitutional right to our U.S. Supreme Court, now is it?

The dissent by Justices Souter and Ginsburg in Crawford was correct in arguing that Indiana had the burden of producing actual evidence of the existence of fraud, as opposed to relying on abstract possibility, before imposing "an unreasonable and irrelevant burden on voters who are poor and old." Indiana failed to meet its burden, just as the state of Pennsylvania is conceding in the stipulated agreement.

While the Pennsylvania case should be a "no brainer," thanks to our conservative activist U.S. Supreme Court, the outcome is very much in doubt.

While I frequently post about the evils of Citizens United v. FEC, the U.S. Supreme Court has had a whole series of wrongly decided cases involving elections and voting rights dating back to Buckley v. Valeo, 424 U.S. 1 (1976) that have limited Americans' fundamental constitutional right to vote and corrupted our election process in favor of wealthy plutocrats. It's going to take constitutional amendments to fix this travesty of justice.

UPDATE: The Washington Post reports Key challenge to voter ID law opens in Pa.:

Perhaps the most important [voter ID] challenge got underway Wednesday in the swing state of Pennsylvania, where opponents of a new law requiring IDs told a state judge that the commonwealth’s constitution forbids such a restriction.

“Under the case law and the express terms of the Pennsylvania Constitution, it is doubtful that there is any governmental interest that can justify depriving voters of their constitutional right,” said a brief filed on behalf of 10 individuals and groups such as the NAACP and League of Women Voters.

The strategy of filing challenges in state court has succeeded in Missouri and Wisconsin, where judges have relied on voting rights protections enshrined in state constitutions to block laws requiring voters to present photo identification.

* * *

When Pennsylvania was debating its voter ID law, the state estimated as many as 90,000 voters lacked the required identification. But when the state compared its roll of 8.2 million voters with the Department of Transportation’s list of those who had photo IDs, it found more than 758,000 voters without a match.

* * *

The controversy ramped up Monday, when the U.S. Justice Department’s civil rights division told the state it was investigating whether the law violates the federal Voting Rights Act.

* * *

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.

But he and Washington lawyer David P. Gersch argued in the challengers’ brief that Pennsylvania’s constitution provides protections the U.S. Constitution lacks.

One section of the Pennsylvania document lists the qualifications of an eligible voter. Another provides that all elections be “free and equal” and that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

The lawyers told the court that “the integrity of elections cannot be enhanced by burdening the franchise for so many qualified citizens.”

The argument that a state’s constitution can provide more protection than the federal document was accepted by a Missouri judge who struck that state’s voter ID law in 2006. There’s now a separate legal battle over a proposed amendment to the state constitution that requires identification.

And a Wisconsin judge last week cited his state’s constitution in striking down a similar law.

“The qualification for voting is guaranteed in the constitution and cannot be changed by statute or impaired by regulation,” wrote Judge David Flanagan. The state has said it will appeal to its supreme court, but it is unlikely the legal challenges would be settled in time for the November elections.