HARRISBURG, Pa.—Vic Walczak stood with his arms outstretched—left arm pointed at the floor, right arm pointed at the ceiling. The lead attorney on the voter ID case for Pennsylvania’s ACLU chapter was trying to demonstrate the gap between his numbers of potentially screwed-over voters and the state’s evidence of potential fraud.
“The scale’s a little bit like this,” said Walczak, in a central New Jersey accent that grew thicker as he spoke. “I don’t think my arms can stretch far enough.”
The commonwealth’s attorneys, who’d sat through seven days of these arguments, didn’t react to the theatrics. They watched Walczak speak for nearly two hours, playing two video clips, appealing to the spirit of 1776, and laying out specifically why Pennsylvania couldn’t implement voter ID right away. Pathos was their enemy.
Their 800-pound ally: Crawford v. Marion County Election Board, the 2008 Supreme Court decision that saved Indiana’s voter ID law. Senior Deputy Attorney General Patrick Cawley closed the state’s argument by quoting that 6-3 decision, written by John Paul Stevens. “The petitioners may make an emotional appeal that may play well to the cameras and to those untrained in the law,” said Cawley. “Pennsylvania law, however, does not support their request for primary injunction.”
Put yourself in Cawley’s position. The petitioners who want to block the state’s new voter ID law produced 14 witnesses. All of them will have some degree of trouble voting if the law survives. These witnesses have been shopped out to TV shows and newspapers—an A1 New York Times story!—to portray Pennsylvania’s law as uniquely cruel. But there’s Supreme Court precedent that appears to back you up.
So Cawley attempted to puncture the witnesses, one by one, and attack the very premise that a law had to go if it would affect a minority of Pennsylvanians. Joyce Block, the 89-year-old from Bucks County, got an ID and “seems only to complain that she had to make a second trip to PennDOT (the Pennsylvania Department of Transportation) and ask her state senator to intervene.” Asher Mirel, a man who used to be a woman, had proven that his old ID still got him where he needed to go. Viviette Applewhite, the 93-year-old who made it into that New York Times front page story, knew her Social Security number, so she could get an absentee ballot.
“An equal protection challenge to a neutral, facially non-discriminatory election statute cannot be supported by claims that certain individuals will bear a special burden under the law,” said Cawley. “There will always be those people.”
But why did the petitioners scour the state for stories of people who might not be able to vote? Put 14 of them in a room, and sure, you can explain how each of them could adapt to the new law. The petitioners’ point was that there might be hundreds of thousands of people with sob stories or wrong IDs, and that this state—no state—could fix their problems by the end of October. Walczak imagined a confused voter arriving at the polls: “Whaddya mean, ID? Why would I need ID? I’ve voted here for 50 years! You know me, we play golf together! What if somebody comes and say, here’s my ID, and they’re told, ‘Sorry, there’s no expiration date here, that’s not valid under the law.’ ”
How many voters might fall into the Ignorance Trap? Great question. When the controversy began, Secretary of the Commonwealth Carol Aichele guesstimated that 99 percent of voters would breeze through the polls. In July, the state admitted that 758,000-odd Pennsylvanians lacked current ID from PennDOT—so actually only 90.8 percent of voters were absolutely taken care of. The remaining voters might have combinations of ID—college ID cards, Social Security cards, birth certificates. But how many of them would get stuck in the system? There were 71 PennDot offices, but 13 of them were only open one day a week. Nine Pennsylvania counties have no PennDot office at all.
The Crawford decision addressed a somewhat similar situation. Walczak focused on the differences. The Supreme Court found that provisional ballots could take care of voters who lacked ID. But a Pennsylvanian who voted that way would have only six days to get a valid ID and prove his identity. In Crawford, Stevens found that “the elderly in Indiana are able to vote absentee without presenting photo identification.” In Pennsylvania, though, voters have to offer some proof that they’ve earned absentee ballots—for example, that sickness or travel prevents them from voting that day.
And even then, asked Walczak, why force so many people into the absentee system? Why bet on the provisional ballot system? Why do all of this in one election cycle, when in Georgia, voter ID was phased in over two years, with four times as many locations for obtaining the right cards?
The reason, said Cawley, was the specter of voter fraud. The day before he had made this argument to Prof. Lorraine Minnite, author of The Myth of Voter Fraud. He informed her that Heritage Foundation Fellow Hans von Spakovsky worried about fraud; she said von Spakovsky’s work was unscholarly claptrap. He wondered how widespread fraud was; she showed a chart that indicated that there were 183,344 fraud charges of any kind in fiscal year 2006. Of those, only 60 of them were charges of voter fraud.
Cawley dealt with this by dismissing it. He repeated von Spakovsky’s arguments and pointed out that another expert witness, professor Matthew Baretto, worked with the anti-voter-ID Brennan Center and the Hispanic turnout group Latino Decisions. How to explain the low voter fraud numbers? Perhaps voter fraud didn’t make it to the top of prosecutors’ to-do lists.
“When it comes to voter fraud, there’s no blood on the sidewalk,” he said. “There are no vulnerable victims to show to a jury.”
But if there weren’t any victims, who were those 14 people testifying about the horrors of the law? “Your honor,” said Walczak, “we’re dealing here with the right to vote. If these people aren’t able to vote in November, no amount of money will replace that. There are no do-overs. This is a one-shot deal. You’ve got to get it right. This is clearly irreparable harm.”