Remember When Judges Decided Elections After the Vote?

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A Pennsylvania decision on voter ID begs the question Republican lawmakers have been asking for years: Why wait until after the election to skew the results?

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Those were the good old days: Ballot counters in Broward County, Florida, in 2000. (Reuters)

When the United States Supreme Court handed the presidency to George W. Bush on the night of December 11, 2000, by means of a partisan 5-4 ruling so constitutionally dubious that even the five conservative justices who endorsed it urged that it never again be cited as precedent, there were really only two main directions in which America could have headed in fixing its state election laws, the failings of which were laid bare by the Florida recount.

Remembering all those poor, confused ladies in Palm Beach County who mistakenly voted for Patrick Buchanan, state legislators around the country could have made it easier for Americans to accurately cast their vote. Or, conversely, still stinging from the tangible proof of the flaws and impurities inherent in every state's election procedures, state lawmakers around the country could have made it more difficult for Americans to accurately cast their vote.

The first scenario would have acknowledged that the injury caused by thousands of valid votes not being counted is far worse than the injury caused by a few invalid votes being counted. The second scenario would have acknowledged the opposite. The first scenario is a concept familiar to anyone who knows anything about our criminal justice systems -- better to let 100 guilty men go free than convict an innocent man. The second scenario is rooted in the twisted logic of the Constitution's Three-Fifths Compromise.

Twelve years later, it's clear which vision has prevailed. On the federal side, Congress has merely nibbled around the edges since 2000. There was the Help America Vote Act, a 2002 federal statute which helped lurch voting technology a little further into the 21st century. And there was the Move Act, a 2009 federal statute, written by Senator Charles Schumer (D-N.Y), which helped ensure that military veterans abroad could vote -- and have their votes counted -- no matter where they are stationed.

But, as we all learned during those five roiling weeks at the end of 2000, it is primarily state law that governs our elections. And on the state side it's been an absolute rout since Bush v. Gore. In the name of "accuracy," and for the putative sake of preventing "voter fraud," Republican-controlled legislatures around the country, fueled and choreographed by the American Legislative Exchange Council, have orchestrated a series of state laws designed to make it more difficult for Americans to vote.

Not all Americans, mind you. If you are wealthy, or own a car, or have a job with enough flexibility to get you to a state office to get the right paperwork, the new laws are perhaps only a mere inconvenience. But if you are poor, or ill, or if you don't have easy access to transportation, or if you don't have full command of the English language, or if you have a job where you can't get off work, the new laws are more than an inconvenience. They are a burden -- a burden many Americans may not be able to bear this election year.

This is happening all over the South -- in Texas, in Florida, in South Carolina -- although in these states the Justice Department, to its credit, has moved to block the disparate impact of new voter laws under Section 5 of the Voting Rights Act, a provision of the 1965 federal law that requires states with histories of voting discrimination to get federal "pre-clearance." Not for nothing, this may be the last election in which this remedy is available to voters. The Supreme Court is poised this coming term to strike it down.

The same Supreme Court, that is, that embraced the concept of strict voter ID laws when it ruled in 2007, in an Indiana case styled Crawford v. Marion County, that lawmakers didn't necessarily need to prove past examples of election fraud in order to burden potential voters. Yet "however slight that burden may appear," Justice John Paul Stevens wrote for a fractured Court, "it must be justified by relevant and legitimate state interests 'sufficiently weighty to justify the limitation.'"

Today, thanks to that ruling, restrictive voter laws have made their way into 19 states, including battlegrounds like Ohio, Wisconsin, and Pennsylvania. In 2004, remember, John Kerry lost the presidency in large part because he lost Ohio, and he lost Ohio in circumstances that remain suspicious today. It's easy to envision Ohio, Wisconsin, or Pennsylvania determining the outcome of the coming election, too. Which brings us, finally, to a remarkable decision Wednesday by a Pennsylvania state judge.

PENNSYLVANIA

On Wednesday morning, Commonwealth Court Judge Robert E. Simpson, Jr., elected as a Republican in 2001, issued a 70-page ruling that upheld Pennsylvania's new voter ID law, a measure that requires registered voters to present to election officials "proof of identification." There are many remarkable points of law and fact in the judge's opinion in Applewhite v. Commonwealth of Pennsylvania. But the essence is simple: All that logic was offered up in the name of reaching an absurd result.

Voter ID requirements are not new. Pennsylvania has long required voters to prove who they are. What is new in Act 18, as the new law is called, is the sort of identification that is statutorily acceptable. It's a much narrower list than before, the idea being that making it harder for Pennsylvania voters to prove who they are will make it harder for ineligible Pennsylvania voters to commit fraud upon the election. How did the state justify this new burden? Here's how Judge Simpson characterized it (the emphases are mine):

Requiring a photo ID improves the security and integrity of elections in Pennsylvania in a manner that is in keeping with the photo ID requirements of many other secure institutions and processes. Respondents are aware of reports indicating that lists of registered voters contain the names of persons who are deceased, no longer residents of Pennsylvania, or no longer residents of the locations at which their names appear on the list of registered voters

Respondents are aware of reports indicating that votes have been cast in the name of registered electors who are deceased, who no longer reside in Pennsylvania, or who no longer reside in the jurisdiction where the vote is cast, Absent proof of identification presented to elections officials at the polling place, there is a risk that votes may be cast in the names of a registered electors who are dead or who have left the Commonwealth or jurisdiction of the election district by a person other than the registered elector.

Respondents are aware of reports questioning the integrity of elections based on a variety of incidents. Requiring a photo ID is one way to ensure that every elector who presents himself to a vote at a polling place is in fact a registered elector and the person that he purports to be, and to ensure that the public has confidence in the electoral process. The requirement of a photo ID is a tool to detect and deter voter fraud.

How bad is the election fraud that Act 18 is designed to end? How bad is the problem the new law seeks to solve by burdening legitimate Pennsylvania voters? What is the scope of the fraud which the measure seeks to "detect and deter" by forcing valid voters to get new forms of identification? It simply doesn't exist -- a point Pennsylvania was forced to concede at trial and which Judge Simpson acknowledged in his ruling. "The parties stipulated as follows," the judge wrote:

There have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties have no direct personal knowledge of any such investigations or prosecutions in other states...

The parties are not aware of any incidents of in-person voter fraud in Pennsylvania and do not have direct personal knowledge of in person voter fraud elsewhere.

Respondents will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania or elsewhere...

Respondents will not offer any evidence or argument that in-person voter fraud is likely to occur in November 2012 in the absence of the Photo ID law.

Does the Constitution permit a voter ID requirement based solely upon "reports" that suggest a "risk" of fraud that "may" occur? Does the Constitution permit implementation of a restrictive voting test in the absence of any proof that in-person voter fraud has occurred before in the jurisdiction or will occur again? Evidently. Citing the Supreme Court's rationale in Crawford, Judge Simpson wrote: "I conclude that the absence of proof of in-person voter fraud in Pennsylvania is not by itself dispositive."

Nor was it dispositive, Judge Simpson wrote, that Pennsylvania House Majority Leader Mike Turzai publicly declared that the new law was designed to hand the state's electoral votes to his fellow Republican Mitt Romney. Here is how PoliticsPA characterized Turzai's remarks at a State Republican Committee meeting in June:

House Majority Leader Mike Turzai (R-Allegheny) suggested that the House's end game in passing the Voter ID law was to benefit the GOP politically. "We are focused on making sure that we meet our obligations that we've talked about for years," said Turzai in a speech to committee members Saturday. He mentioned the law among a laundry list of accomplishments made by the GOP-run legislature.

"Pro-Second Amendment? The Castle Doctrine, it's done. First pro-life legislation - abortion facility regulations - in 22 years, done. Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done." The statement drew a loud round of applause from the audience.

Of course it drew loud applause from the Republican audience. The whole point of Act 18 is to disenfranchise precisely those Pennsylvania voters (the old and the infirm, the poor and the dispossessed, the have-nots and the hourly workers and the students) who are mostly likely to vote for Democratic candidates. That's the main point of all these Republican-sponsored, ALEC-coordinated, Koch Brothers-financed voter ID laws, isn't it? And how did Judge Simpson get around Turzai's confession? Here's what he wrote:

I also considered allegations of partisan motivation for Act 18 in general, and the disturbing, tendentious statements by House Majority Leader Michael Turzai to a Republican party gathering in particular. Ultimately, however, I determined that this evidence did not invalidate the interests supporting Act 18, for factual and legal reasons.

Factually, I decline to infer that other members of the General Assembly shared the boastful views of Representative Turzai without proof that other members were present at the time the statements were made. Also, the statements were made away from the chamber floor.

Legally, the United States Supreme Court stated in Crawford that if a non-discriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.

Just like that -- in a single paragraph in a 70-page ruling -- Judge Simpson created a new rule by which a law's discriminatory effect can be proven (and proven serious enough to warrant a judicial remedy) only if each elected member of the majority voting to enact the law confesses to its invidious effect on the floor of the legislative chamber. This, over a law that was based upon mere "reports" of voter fraud that no one has ever cared to document, or prosecute.

POSTSCRIPT

What makes these laws so diabolical, and what makes decisions like this one so constitutionally destructive, is that elections are finite events. There is a before. And there is an after. Judge Simpson ruled, in effect, that it was too early to facially challenge Act 18 in advance of the election because there is not enough proof, today, that the measure will disenfranchise a wide swath of voters. And he ruled that any individual problems with the new law could be cured, after the election, by the use of provisional ballots.

But we all know how this ends. After the election, the argument will be that it is too late to challenge the results of the voting. There will be enormous political pressure, even more so than now, to bring "closure" to the election. We saw that play out in Florida in 2000 with a result from the justices in Washington that was more about such "closure" than it was about a reasonable application of equal protection principles. It's going to happen again, somewhere, so long as these odious laws are allowed to stand.

There is plenty of room in America for more accurate voting procedures. And there are plenty of ways to get to that level of accuracy without legislation the intent of which, and the effect of which, is to make it harder for voters of one party to have their votes counted. Judge Simpson's ruling now will be appealed to the Pennsylvania Supreme Court. And perhaps the federal courts will be asked to ponder whether Act 18 violates the federal constitutional rights of voters (and don't forget, the U.S. Supreme Court is more conservative today than it was in 2000). We are still weeks away from a final answer.

In the meantime, we wait. For the appeal here. For rulings out of Ohio and Wisconsin and Texas and South Carolina and Florida. Many people still believe that the Supreme Court stole the 2000 election for George W. Bush. If Mitt Romney wins one of these states by a slim margin, and if so winning the state wins the election, and if there is a showing on election day that legitimate voters were turned away, we'll be seeing the most cynical extension of Bush v. Gore imaginable: an election determined by judges and legislators long before the first vote is ever cast.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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