Goosing a Ghost in PA

Slate‘s Dave Weigel has been covering the court proceedings in Pennsylvania over that state’s new voter ID law, and his pre-ruling-wrap-up today is definitely worth reading. The bottom line is that the plaintiffs are offering substantial and tangible evidence about the hundreds of thousands of voters who may be negatively affected if the new law takes effect before November, while the State alternates between dismissing these concerns as the whining of people who will be minimally inconvenienced, and pointing to the ghostly threat of voter fraud. This passage describing the exchanges between the State’s lead attorney Patrick Cawley and the plaintiffs’ attorneys is especially illustrative:

[W]hy 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 Spakovky’s arguments and pointed out that another expert witness, Prof. 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.”

Perhaps that’s because there is no there there in the first place.

Weigel thinks Pennsylvania’s attorneys are taking this breezy approach to the case because they believe legal precedents–especially Crawford v. Marion Board of Elections, the 2008 Supreme Court decision upholding Indiana’s voter ID law–are strongly in their favor. So the plaintiffs have given considerable attention to distinguishing Pennsylvania’s law from Indiana’s and others:

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.

In the end, the decision will probably hinge on judicial assessments of the plaintiffs’ argument that the law goes far beyond any measures necessary to prevent largely theoretical voter fraud concerns. And so you have to wonder if the State’s insouciance about the impact of the law–and the facts–will fatally undermined its case. If it’s all no big deal, then why undertake this major change in election administration immediately before a major election? The best answer remains that smoking-gun admission of intent by PA GOP legislative leader Mike Turzai: “Voter ID … is going to allow Gov. [Mitt] Romney to win the state of Pennsylvania.”

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.