[EL] Initial thoughts on PA decision

[Josh Douglas]

As Jim notes, the court's decision *not* to lockstep the state
constitution's explicit grant of the right to vote with federal equal
protection jurisprudence is important, and contrary to other state courts
that have upheld voter ID laws (most recently Tenn.).  The other state
courts that have invalidated voter ID laws have gone through the same
analysis as did this Pennsylvania court (such as the two Wisconsin trial
courts last year and the Missouri Supreme Court in 2006).  With apologies
for the self-promotion, this is the exact kind of analysis I advocate in my
forthcoming Vanderbilt Law Review article, The Right to Vote Under State
Constitutions, draft available here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234762

Josh


On Fri, Jan 17, 2014 at 4:46 PM, Gardner, James <jgard at buffalo.edu> wrote:

>  As someone who spends a lot of time thinking about state constitutional
> law, I thought I might be able to provide a few observations to supplement
> Rick’s initial analysis.
>
>
>
> First, this is a very unusual opinion, particularly for a state lower
> court, in the care and thoughtfulness of the state constitutional
> analysis.  Most lower courts tend to give these arguments short shrift.
> Second, it is a bit of a risky decision in Pennsylvania.  The Pennsylvania
> Supreme Court has been one of the least active nationally in giving
> independent effect to the individual rights provisions in the state
> constitution, and when it has done so, it tends to interpret them “in
> lockstep” with the U.S. Supreme Court, meaning it tends to give them the
> same meaning, and to require the same results, as cognate provisions of the
> U.S. Constitution.  The trial court noted this practice in its equal
> protection analysis.  The Pennsylvania Supreme Court’s tendency to walk in
> lockstep with the U.S. Supreme Court in the area of equal protection has
> been a disappointment to those of us who would like to see state courts
> chart their own independent approaches to equal protection in
> gerrymandering cases arising under state constitutions.
>
>
>
> Third, where the Pennsylvania Constitution contains provisions that lack a
> federal equivalent, it has also been very reticent about leveraging these
> provisions to create genuinely independent state constitutional liberties
> with real bite.  The PA Constitution contains just such a provision,
> discussed in the lower court opinion – a provision requiring all elections
> to be “free and equal.”  Thus, not only does the PA Constitution have
> something the U.S. Constitution lacks – an explicit right to vote – but it
> also has a provision that on its face seems to subject elections to a
> potentially demanding standard of fairness that has no federal equivalent.
> Yet, the PA Supreme Court has for the most part not interpreted this
> provision to place any particular demands on state elections.  The trial
> court’s heavy reliance on this provision to set a tough baseline against
> which to evaluate the challenged voter ID law is thus, in context, a fairly
> aggressive use of a provision that has not been given much of a workout by
> the state’s highest court.  I happen to like and agree with the lower
> court’s use of the provision, and it furnishes a nice model for other state
> courts to look to in similar circumstances, but it is analytically a
> fateful step and, if past practice is any guide, one that might well make
> the PA Supreme Court anxious.
>
>
>
> Jim
>
>
>
> ___________________________
> James A. Gardner
> Bridget and Thomas Black SUNY Distinguished Professor
> SUNY Buffalo Law School
> The State University of New York
> Room 514, O'Brian Hall
> Buffalo, NY 14260-1100
> voice: 716-645-3607
> fax: 716-645-2064
> e-mail: jgard at buffalo.edu
> www.law.buffalo.edu
> Papers at http://ssrn.com/author=40126
>
>
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Rick Hasen
> *Sent:* Friday, January 17, 2014 10:31 AM
> *To:* Adam Bonin; 'law-election at UCI.edu'
> *Subject:* [EL] Initial thoughts on PA decision
>
>
> Initial Thoughts on Today’s Ruling Striking Down Pa’s Voter ID Law on
> State Grounds <http://electionlawblog.org/?p=58044>
>
> Posted on January 17, 2014 7:28 am <http://electionlawblog.org/?p=58044> by
> Rick Hasen <http://electionlawblog.org/?author=3>
>
> I have now had a chance to skim the 103-page Pa. trial court ruling<http://www.pacourts.us/assets/files/setting-647/file-3490.pdf?cb=a5ec29>striking down Pa’s voter id law—I will have to give a closer reading later
> in the day when I have the time.  But here are a few initial thoughts.
>
> 1. This is a clear victory for opponents of voter id laws, with a finding
> that the implementation of the voter id law violated the law’s own promise
> of liberal access to voter id, that the implementation exceeded the
> agency’s authority to administer the program, that the voter education
> efforts were woefully inadequate, and that as a whole the Pa. voter id
> program violated the Pa. constitutional’s fundamental right to vote. In
> this regard, it is important to note that the court rejected Pa’s argument
> that the law was aimed at preventing voter fraud. The judge found that the
> state presented no evidence the law was necessary either to prevent fraud
> or to keep public confidence in the fairness of the election process.
>
> 2. Despite the victory, there are some things in here that will be
> troubling for voter id opponents (and heartening for their supporters). The
> judge said that Pa’s equal protection clause is read as equivalent to the
> U.S. Constitution’s equal protection clause, and the Court found there was
> no equal protection violation by the law. The judge specifically found, in
> footnote 33 (p. 48), that the law was NOT motivated by an attempt to
> disenfranchise minorities or Democratic voters—the judge said he found this
> notwithstanding the comments <http://electionlawblog.org/?p=36197>of
> House Majority Leader Mike Turzai. From my quick look at the statement of
> facts, I did not see more of the basis for the judge’s opinion on this
> point, but it undercuts one of the main motivation arguments of opponents.
>
> 3. It is not clear to me whether the Pa. Supreme Court will ultimately
> affirm this decision or not. Readers may remember that when this case came
> up on a preliminary injunction before a different judge, the case went to
> the state Supreme Court which stayed implementation out of fear that the
> law would not be implemented in time for the 2012 elections. But ALL the
> justices on the Court then expressed the opinion that an efficient, fairly
> applied voter identification law would be constitutional under the PA state
> constitution. So the real question that is likely to be before the PA
> Supreme Court is whether this law is so hopelessly drafted and implemented
> that it amounts to a denial to the right to vote under the PA constitution
> (or a statutory or administrative violation), which would give the state
> supreme court a way to reject *this *voter id law but not *all* voter id
> laws. That result certainly seems possible on this record.
>
> 4. Finally, the relevance of this ruling to other voter id challenges is
> somewhat limited. The findings on implementation are state specific and
> don’t really carry over to other states. The analysis of the right to vote
> under the PA state constitution is also state specific, and says little
> about how, say, the Wisconsin Supreme Court will read its right to vote.
> Further, on the U.S. constitutional issues, the equal protection holding
> (and the rejection of the bad motivation argument) helps opponents of the
> laws. Finally, there is nothing in this opinion that sheds light on Voting
> Rights Act challenges. So in the end, this ruling says little about how
> other states will approach these questions, and the little that is there
> could help supporters of such laws.  Nonetheless, this kind of technical
> legal analysis will stand in tension with the PR value of a victory in a
> case like this—the public does not split hairs like lawyers do. It will
> hear that yet another voter id law was struck down as disenfranchising.
>
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-- 
Joshua A. Douglas
Assistant Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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