[EL] Initial thoughts on PA decision

Sun Jan 19 15:05:53 PST 2014

Palmer's language about motive does not stand alone. The Court found no discriminatory effect, as I recall. Closing the pools meant neither race could use them. So I would argue that Palmer leaves open the argument that discriminatory effect plus discriminatory  intent equals denial of equal protection.

Sent from my iPhone

On Jan 19, 2014, at 1:46 PM, "Lorraine Minnite" <lminnite at gmail.com<mailto:lminnite at gmail.com>> wrote:

In initial reactions to the recent Applewhite opinion, pundits and scholars alike have pointed out that having been presented with no evidence that the PA voter ID law was motivated by racial (or even partisan) animus, the judge concludes that the law does not facially violate the PA Constitution's guarantee of equal protection (considered coextensive with the federal guarantee).  In the commentary I've read so far, this finding is characterized as troubling for opponents of voter ID.  Much is being made of footnote 33, where Judge McGinley cites the Supreme Court decision in Palmer v. Thompson (1971) as supportive of his dismissal of the now infamous comments of the PA House Majority Leader as evidence of purposeful discrimination.  The opinion quotes Palmer v. Thompson (concerning the closing of public swimming pools in Jackson, MS, in defiance of federal court orders to integrate them), thusly:

"...no case in [the Supreme] Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it..." and "[i]f the law is struck down for [bad motives], rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons."

...as if to suggest that there is clear thinking and direction in the corpus of Supreme Court doctrine regarding the intent to discriminate and differences between intent and effect with respect to constitutional analysis.  In Colorblind In-Justice, J. Morgan Kousser tracks inconsistencies in the Court's approach to purpose and effect matters across a range of electoral equality, voting and civil rights cases (i.e., "The patchwork of intent and effect discussions of other [beyond voting rights] Supreme Court decisions of the 1980s formed a crazy quilt whose doctrinal pattern was strikingly irregular." p. 342).

I have two questions for legal experts on the list who are more familiar than I am with intent/effect debate as it has played out the courts:

1) What is to be made of the judge's citing of Palmer v. Thompson in footnote 33?  Are those who see in the footnote a closed door for equal protection exaggerating its importance for what I suspect are concerns about Section 2 challenges to voter ID laws?

2) Did the judge get it wrong?  Again, as Kousser points out, just five years after Palmer, the Court, in Washington v. Davis found that intent could be discovered in objective evidence - it was not necessary to document legislators' subjective mental states (the folly to which Judge McGinley alludes).  (Citing Kousser, p. 336) writing for the majority, Justice White states that "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another."  This wasn't the last word, but my question has more to do with its relevance to point 240 in the Applewhite opinion's Appendix A: Findings of Fact, which states "Registered minority voters, including African-Americans and Latinos, are almost twice as likely not to have compliant photo ID."

Lori Minnite

On Fri, Jan 17, 2014 at 1:46 PM, Scarberry, Mark <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>> wrote:
I haven’t yet read the opinion, or given much thought to these requirements, but there could be rationales:

IDs that have expiration dates are reissued periodically. That means there are multiple IDs that could be floating out there. A person may not keep track of an expired ID and may not notice if it’s missing. That could make it easier for an impersonator to obtain the expired ID and use it without discovery. That’s pretty weak, if we think the photo on the ID is a good means of identifying the person, and if we think that it’s not easy to substitute a photo on the ID. (It may also be more likely that the real person identified in an expired ID is dead – few dead people bother to get a replacement driver’s license, for example, after their existing license expires; but the evidence doesn’t seem to back up the charges that there is much voting by persons who impersonate the dead.)
IDs that don’t have expiration dates can be used long after the person named on the ID is dead. Again, that seems a pretty weak justification for excluding such IDs if they are photo IDs.

Alternatively, a person who has moved out of the state, but who returns just to cast a fraudulent vote, might still have a photo ID issued by the state. If the state-issued photo ID is expired, or has no expiration date, then it is less persuasive evidence that the person who holds it is a resident of the state. But of course that goes to whether the person is eligible to vote, not to any question of impersonation. And it is irrelevant where the ID is a federally issued ID (unless the federally-issued ID gives information about the holder’s residence).

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Richard Winger
Sent: Friday, January 17, 2014 10:20 AM
To: Adam Bonin; Gardner, James
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] Initial thoughts on PA decision

I think the part of the decision that says it is unreasonable to exclude government photo ID that has no expiration date will be useful in other states.  And the same goes for the judge's finding that it is unreasonable to disallow government photo ID that is "expired".  As the decision says, the function of the ID is to identify the voter, so why does an expiration date matter?

Richard Winger
415-922-9779<tel:415-922-9779>
PO Box 470296, San Francisco Ca 94147

________________________________
From: Adam Bonin <adam at boninlaw.com<mailto:adam at boninlaw.com>>
To: "Gardner, James" <jgard at buffalo.edu<mailto:jgard at buffalo.edu>>
Cc: "law-election at UCI.edu<mailto:law-election at UCI.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Sent: Friday, January 17, 2014 8:56 AM
Subject: Re: [EL] Initial thoughts on PA decision

With regards to the judge, while Judge McGinley was sitting as a trial court judge, he's a judge on the Commonwealth Court, one of our two intermediate appellate courts. These judges, while normally on three judge panels, also for example hear state candidate ballot access matters as trial courts of the first instance.
On Jan 17, 2014 11:47 AM, "Gardner, James" <jgard at buffalo.edu<mailto: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
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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> [mailto: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<mailto: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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