Today Pennsylvania Commonwealth Court Judge Robert Simpson finally enjoined the Pennsylvania Secretary of the Commonwealth from "implementing or enforcing that part of Act 18 (the "Voter ID Law") which amends Section 1210(a.2) of the Election Code, 25 P.S. §3050(a.2), and Section 1210(a.4)(5)(ii) of the Election Code, 25 P.S. §3050(a.4), for the general election of November 6, 2012" which halts the blatant (and even admitted) attempt by the GOP dominated General Assembly to disenfranchise for purely partisan political purposes a significant portion of the Commonwealth's electorate who were not likely to support Republican candidates in the upcoming General Election. Pennsylvania electors will thus now NOT be required to produce a "State approved photo ID" in order to vote in person on November 6 as opposed to being turned away or provided a "provisional ballot" which would not likely to ever be counted.
While Judge Simpson's order is a good thing, it is however still only temporary and applies just to this November's election. Trial will still have to be held sometime early next year before Judge Simpson on the Petitioners' request in Applewhite et al v. Commonwealth et al to permanently enjoin Act 18. However having that trial in front of Judge Simpson still raises some troubling questions for me as to how he may view decide the matter then based on his first ruling in August upholding Act 18 which was vacated by the Pennsylvania Supreme Court and returned for the second hearing in Commonwealth Court held last week.
The reason for my concern is that in his August ruling Judge Simpson relied heavily in upholding Act 18 on a patently bigoted and widely discredited 1869 case (which ironically was also aimed at disenfranchising voters in Philadelphia) called "Paterson v. Barlow" (60 Pa. 54) and on "Winston v. Moore" (244 Pa. 447, 457, 91 A. 520, 523) a 1914 case that adopted Paterson’s standard of “plain, palpable, and clear abuse” in the review of registration laws.
However that this opinion also settled on that standard is a display of xenophobia and agrarian prejudice as overt as can be found in any reported decision in the United States. At issue in Paterson was a law patently designed to disenfranchise Philadelphians by striking anyone from the voter rolls who boarded at a hotel, tavern or sailors’ boarding house, and only let them back in if they could supply affidavits from two homeowners in their voting district. Worse yet, that rule also only applied to Philadelphia and a few other similar metropolitan areas in the state.
The court held that this differential treatment between Philadelphia and the rest of the state was constitutional because Philadelphians, simply, were bad people, holding:
”Where population greatly abounds vice and virtue have their greatest extremes. A simple rural population needs no night police, and no lock-up. Rogues and strumpets do not nightly traverse the deserted highways of the farmer. Low inns, restaurants, sailors’ boarding-houses, and houses of ill fame do not abound in rural precincts, ready to pour out on election day their pestilent hordes of imported bullies and vagabonds, and to cast them multiplied upon the polls as voters. In large cities such things exist, and its proper population therefore needs greater protection, and local legislation must come to their relief. The freedom and equality of the ballot-box must be protected from the local causes which mar and destroy a free and equal election.” (60 Pa. at 78)
“What crime have the freemen of Philadelphia committed, that their voice at the ballot-box may be stifled by the fraud or force which springs out of their local circumstances, and yet the legislature be powerless to relieve them? In the language of another, that would be 'to place the vicious vagrant, the wandering Arabs, the Tartar hordes of our large cities, on a level with the virtuous and good man–on a level with the industrious, the poor and the rich.' Is that a wise and just interpretation of the Constitution which opens the polls of a large city to such imported hirelings and vagabonds without a home, by adhering to a uniformity of regulation unsuited to the city on the one hand, or to the country on the other?” Id.
The opinion then speculates that without disenfranchising people who stay at hotels, the good householders of Philadelphia could go to the polls only to end up dead:
”How then can the freedom and equality of election be secured in a great city if from the force of local circumstances the places of the real electors are usurped, if the ballot-box can be stuffed with impunity, or if suffrage can be exercised only at the risk of violence or life?
“Where the population of a locality is constantly changing, and men are often unknown to their next-door neighbors; where a large number is floating upon the rivers and the sea, going and returning and incapable of identification; where low inns, restaurants and boarding-houses constantly afford the means of fraudulent additions to the lists of voters, what rule of sound reason or of constitutional law forbids the legislature from providing a means to distinguish the honest people of Philadelphia from the rogues and vagabonds who would usurp their places and rob them of their rights? I cannot understand the reasoning which would deny to the legislature this essential power to define the evidence which is necessary to distinguish the false from the true.” Id. at 82.
The opinion concludes by connecting two threads of bigotry and deference to legislatures, to-wit:
“It is true there is a kind of liberty this registry law will destroy. It is that licentiousness, that adulterous freedom, which surrenders the polls to hirelings and vagabonds, outcasts from home and honest industry; men without citizenship or a stake in the government; men who will commit perjury, violence and murder itself. To prevent this is the purpose of this law; and it should have the aid of fair men of all parties to give it a fair trial, and secure its true end. It may have defects–doubtless it has–and what system devised by the wit of man has not; but its defects, if any, should be remedied as they are disclosed by experience. The law is not unconstitutional. It is a part of the political system of the state, on which its offices, and its very continuance depends; and we, as a court, have no right to put our hands upon the whole system, on grounds of mere hardship, or for defects of regulation, which are not clear and palpable violations of the letter or very spirit of the Constitution.” Id. at 84-85.
All Pennsylvania voters -- no matter which candidates they plan to support -- will be free to exercise their voting franchise this year in accordance with the Declaration of Rights set forth in the Pennsylvania Constitution at Article I, Section 5 which prescribes that elections must 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.” Whether they will continue to be free to do so beyond that election, however is still in danger if our Courts choose to rely on the likes of "Paterson v. Barlow" and on "Winston v. Moore" as a basis in the upcoming trial to permanently enjoin the implementation and enforcement of the blatantly partisan targeted voter suppression provisions of Act 18.