Many opponents of the state’s voter ID law, like Bea Bookler of Devon, were shocked when Commonwealth Court Judge Robert E. Simpson Jr. upheld the law in a ruling last month. “My first reaction was unprintable,” Bookler, 94, one of the plaintiffs trying to get the law overturned, said in a telephone interview. “My second reaction was to get in bed and say I don’t want to be alive in a world where people are prevented from voting.” While Simpson turned down a bid to stop the new voter ID requirements from taking effect with the Nov. 6 election, his opinion made clear that the judge was looking over his shoulder to an appeal in the state Supreme Court, however he ruled. Simpson himself teed up what could be the a major point of contention facing the six Supreme Court justices when they hear that appeal Thursday in their Philadelphia courtroom on the fourth floor of City Hall. The issue: What level of judicial scrutiny should be applied to the legislature setting new, more stringent rules for potential voters showing up at their polling places? A relatively flexible standard, deferring to the legislature’s authority to set the rules for running Pennsylvania elections? Or a strict standard, recognizing the right to vote as a fundamental civil right and putting a burden on the state to justify any new laws that might interfere with individuals trying to vote?
“[T]he appropriate level of scrutiny raises a substantial legal question,” Simpson said in his opinion. “Indeed, if strict scrutiny is to be employed, I might reach a different determination on this prerequisite for a preliminary injunction.” In legal briefs filed with the Supreme Court in advance of Thursday’s hearing, supporters and opponents of the voter ID law provide sharply different answers to that question.
“Voting is a fundamental right,” argues the appeal brief filed by David P. Gersch of the Washington law firm Arnold & Porter L.L.P., representing opponents of the law along with the American Civil Liberties Union, the Public Interest Law Center of Philadelphia, and the Advancement Project. “The challenged law imposes significant burdens on the exercise of that right,” Gersch’s brief continues. “The law must be assessed with strict scrutiny, under which it cannot survive a constitutional challenge because it is not narrowly tailored to service any compelling Commonwealth interest.”