4 Observations About The Pennsylvania Voter Screening Law Decision

On Wednesday, Pennsylvania Judge Robert Simpson upheld that state’s new voter screening law, estimated to disenfranchise up to 750,000 citizens this election, by declaring that he didn’t see anything wrong with it. Coincidentally, the judge in question is a Republican party hack. Progressives and other “people who don’t like reversing the right to vote” responded with outrage.

Since I haven’t exercised my legal muscles in a month or so I thought I’d go through the decision and provide some insights that can help you make cocktail chatter about this decision and impress your friends. The full decision is here if you want to follow along.

Joe prepares for your reaction to the heading for this section

1) The decision was right: Wait…what?!? Well, hold on a second before you hurl tomatoes at me because the bulk of this article is going to be harshly critical of Judge Simpson’s decision. However, the actual “decision” (technically “denying the request for a preliminary injunction”) was correct.

First off, the American justice system begins from the premise that courts will not make a decision until someone has suffered a harm. That seems like kind of a dick move, but the point is to protect against a tidal wave of speculative lawsuits forcing judges and juries to deal with hypothetical problems. Given that the Pennsylvania voter screening law has yet to go into effect, there’s no harm for the court to adjudicate, right?

Well, not exactly. No good rule is complete without exceptions. In this case, the opponents of the voter screening law sought a “preliminary injunction” — basically a ruling that stopped the law from going into effect. To get a preliminary injunction — and therefore upset the legal system’s established, “call us when you’ve really hurt yourself” policy — the party seeking the injunction needs to prove a series of factors that basically amount to, “we think you’re likely to win if we wait until there is a harm and the harm at issue is irreparable (getting a check later won’t fix it) so it’s better to act now than wait.”

If any factor is missing, a court must deny the request for a preliminary injunction. One of the factors requires proof that the harm of granting the injunction is worse than the harm of not granting it. Judge Simpson notes that, whichever way he rules, the losing party will appeal his decision to the Pennsylvania Supreme Court. He also notes that the appeal process will be complete before the November election. Recognizing that his ruling will not fully resolve the case, Judge Simpson explains that the Pennsylvania Department of State is investing large amounts of money in outreach programs to inform voters about the law and help those voters get the photo ID needed to vote in November. If Judge Simpson issued a preliminary injunction, these efforts would stop until the Pennsylvania Supreme Court ruled on the case. Judge Simpson reasoned that if the injunction is granted and the appeal upholds the law, thousands of voters in need of photo ID would be denied the benefit of a two month ad campaign aimed at minimizing the number of disenfranchised voters, but if the injunction is denied the ad campaign can continue and if the appeal upholds the law, voters will at least be prepared, and if the appeal strikes down the law the only harm is a few more people have photo IDs which isn’t a bad thing.

Frankly, if I were the judge in this case, I may well have halted the matter here. As bad as the law is, I would not want to thwart every possible effort to prepare voters for the possibility that the law would be upheld.

The problem with defending Judge Simpson on this point is that he goes on with his decision to build a record that gives the appellate judges more cover to uphold the law.

The Large Hadron Collider smashes particles together to catch a glimpse of the Higgs Boson underlying the Standard Model of Physics.
This case smashes the law with political hackery to catch a glimpse of the Bullshit Boson underlying conservative jurisprudence.

2) Judge Simpson makes a ton of very sketchy factual findings: While the appellate court will decide the fate of Pennsylvania’s voter screening law, that court is limited to the facts in the record. Rather than let the evidence speak for itself, Judge Simpson meticulously littered his opinion with his own factual findings — basically saying “these two witnesses look equally credible on paper, but I watched the testimony and one is more trustworthy than the other.” For the most part, an appellate court has to respect the evaluation of the evidence made by the lower court because, the legal system reasons, the lower court judge is better situated to evaluate credibility.

Virtually every piece of evidence offered by opponents of the law is characterized as lacking credibility — usually for ambiguous reasons that the appellate court will be unable to disprove. This language is typical — after the Judge asked a Department of State official about whether a preliminary injunction would matter:

“While his response in the transcript was equivocal, everyone in the courtroom could see his reaction: alarm, concern, and anxiety at the prospect of an injunction. His demeanor tells the story.”

This effectively hamstrings the appellate court to accept the conclusion Judge Simpson wants (though, since this specific testimony bolstered the decision to allow the Department of State to continue educating the public, the characterization did not have a disastrous effect).

Judge Simpson agreed that losing the right to vote would be irreparable, but decided that there was no reason to believe anyone would really lose the right to vote. He claims that he was convinced by testimony of Rebecca Oyler, whose qualifications on the subject of voter fraud and registration are evident from her degree in…national security policy? WTF?!? Judge Simpson accepted her testimony on the number of voters without photo ID rather than the “efforts to inflate the numbers” with such methods as COMPARING THE VOTER REGISTRATION ROLLS WITH THE LIST OF VALID PHOTO IDS IN THE STATE. I mean, why would that be a valid estimate of “the number of voters without photo ID?”

In Judge Simpson’s defense, he says that absentee and provisional ballots will protect the right to vote even if this law radically curtails in-person voting. I suppose that’s possible, though here we’re getting into Jim Crow levels of equivocation: “that segregated train car gets to the station at the same time…so what’s your beef?”

Judge Simpson then says of expert witness Professor Matt Barreto (college debater! Woohoo!) “part of this testimony were (sic) believable. For the most part, however, his opinions were not credible or were given very little weight.” So…the credible opinions were given very little weight? *Slow clap for Judge Simpson* Ultimately he disses the scientific evidence offered by Barreto while accepting Rebecca Oyler’s conclusory “just trust me” testimony. Amazingly, Judge Simpson stated that Barreto must be wrong that most potentially disenfranchised Pennsylvanians are unaware of the law and what they need to do to comply because there were other witnesses. It can’t be a cover-up if someone figured it out. Richard Nixon is smacking himself from beyond the grave for not coming up with that one.

I’ve decided that crossing the 50-yard line is now a touchdown

3) Judge Simpson decided to apply the wrong standard to the law…for FUN!: This case is about the right to vote, which is a pretty fundamental right in a country that describes itself as a democracy. When a right is “fundamental” in a legal case, the court is supposed to apply “strict scrutiny,” which is kind of the “innocent until proven guilty” of constitutional law — the burden is on the government to overwhelmingly prove that the law is highly unlikely to disenfranchise anyone. This comes to us directly from the Supreme Court. As Garrett Epps put it:

The key issue in voting-rights cases is what “standard of scrutiny” the Constitution requires for burdens on the right to vote — that is, new rules that make it harder to cast a ballot without entirely banning any individual or group from voting.  If the right to vote is fundamental, then the standard should be “strict scrutiny”; that means the government must show a very important reason before it is allowed to burden the right. “Security and integrity” might meet that test — but only if they face an actual threat. The state would have to produce evidence that fraud is actually likely to be a serious problem.

Recognizing that this law had a snowball’s chance in hell of surviving under a strict scrutiny standard, Judge Simpson decided to apply a different standard than the Supreme Court uses. Garrett Epps continues:

But Judge Simpson in his opinion claims that the Supreme Court’s standard is a “deferential” one. Here he tips his ideological hand, because this standard is not law, but rather a creation of the Court’s three hardest right-wingers. Though proposed in a concurrence by Justice Scalia, the “deferential” standard was explicitly rejected in Justice Stevens’s three-judge opinion announcing the judgment in Crawford].  Under Judge Simpson’s extremist reading, however, no matter how strict the government regulation, challengers must prove that someone is certain to be disfranchised — an almost impossible standard to meet.

So let’s back up. The Supreme Court sometimes issues multiple opinions in the same case. Some of these opinions are “law” and the others — dissents and concurrences — are just interesting commentary and should not be cited as law. But Judge Simpson did it anyway…for fun!

Seriously though, this is kind of an epic mistake for a judge. The opinion of the Supreme Court in Crawford maintained the strict scrutiny standard and explained that the state met that standard because of specific deficiencies in the case presented by opponents of the law. Those deficiencies do not appear to be present in the Pennsylvania case.

4) The Pennsylvania Supreme Court could be deadlocked: So now the case moves on to the Pennsylvania Supreme Court where things could get even more crazy. The Pennsylvania Supreme Court features 3 Republicans and 3 Democrats. Why no tie-breaker? Well, Republican Justice Joan Orie Melvin is not going to hear the case because she’s busy fighting criminal corruption charges. Good times.

Stay tuned folks because this could be as crazy as the Obamacare Supreme Court case with shifting alliances and surprise defections.

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