HARRISBURG, Pa.—For the last six business days, on the third floor of the shiny new Pennsylvania Judicial Center, government witnesses and attorneys have waged a daily competition. Who can give the least-convincing defense of the state’s voter ID law? Who gets to utter the killer quote that makes the petitioners’ case in Applewhite v. Pennsylvania?
It should be tough to bungle. The new law, passed by state Republican legislators last year, is backed by at least 58 percent of voters. That’s after months of gut-punch headlines—“Justice Department Investigates Pennsylvania Voter ID Law,” “Why Pennsylvania’s Voter ID Law Will Create Chaos on Election Day,” and “Pennsylvania Admits There’s No In-Person Voter Fraud.” And that last headline wasn’t even true. On July 25, the start of hearings on a possible injunction against the law, a lawyer from the attorney general’s office had to explain that the state had merely decided to bracket voter-fraud stories and leave them out of the trial.
“That is not a concession … that voter fraud has not happened,” said Deputy Attorney General Patrick Cawley. “It is a recognition that the legal standard governing these proceedings simply does not require the legislature to have proof of such incidents in order to enact a voter ID law.”
Got that? The state is not trying to warm Sean Hannity’s heart with angry talk about ACORN. It’s only trying to defend how the new ID law has been implemented and to prove that it meets equal-protection standards. And the state is not quite getting there.
Cawley’s opening statement set that tone. When, he asked, was it ever unreasonable to demand ID? “Boarding a plane, conducting financial transactions, and entering government buildings without a photo ID is virtually unthinkable in 2012,” he said. “You walk around this very city at lunch time and you see photo IDs dangling around people's necks or clipped to their belts.”
But there’s a difference between an ID for work and an ID requirement at the polls. Easy-swipe access to the office doesn’t affect the “privileges or immunities of citizens.” Access to the vote does. The anti-ID coalition in Pennsylvania—the local NAACP, the League of Women Voters, the American Civil Liberties Union, the Public Interest Law Center of Philadelphia—has been calling witnesses who can’t get IDs for picayune reasons or witnesses who can prove the state is making people pay $13.50 for ID cards when those cards should be free. During the hearings, the lawyers not currently arguing the case sit in benches behind the counsel’s table and pass notes to ensure that nothing goes unasked.
The government’s witnesses and attorneys don’t have armadas behind them. Not in the courtroom, anyway. Instead, they gamely argue the facts of the law then get trapped in logic holes, as presiding Judge Robert Simpson looks on, poker-faced. On Monday, the petitioners managed to drag David Burgess, deputy secretary for planning and service delivery, into a discussion of mismatched state voter databases. Attorney Marian Schneider got Burgess to count up all of the discrepancies, voter by voter, without context.
“Adding these three numbers together,” she said, “the 758,000 that you publicly disclosed don't match, plus the 130,000 that did not actually match, plus the 574,000 whose ID is expired and won't be valid for voting today—adding all three of those together equals 1,463,758?”
“That's correct,” said Burgess.
“So your analysis shows that there's 1,463,758 voters who don't have an ID that is valid for voting, is that right?”
“Today, correct,” said Burgess, agreeing to a higher possible number of disqualified voters than the state has ever contemplated.
The state’s attorneys steered the ship around, getting Burgess to explain that the discrepancies were “primarily [due to] differences in the names” on various lists. But the petitioners had proven that the people who would enforce the law are still struggling with how to discuss its specifics. That story repeated itself on Tuesday when the petitioners got to quiz the secretary of the Commonwealth of Pennsylvania, Carol Aichele.
Aichele was no naïf. She arrived in Harrisburg in January 2011 as a new member of Gov. Tom Corbett’s Republican administration. Her husband, Steve, became the state’s new general counsel and later Corbett’s chief of staff. She took command of the state’s voting systems. David Gersch, a Washington-based attorney who’s gotten to handle several of the most important witnesses, was able to rattle her anyway.