The Pennsylvania Supreme Court hearing on Applewhite v. Commonwealth of Pennsylvania, over the state's voter ID law, was serious enough that it drew the presence of Ben Jealous, the president of the national NAACP. After 90 minutes of arguing about the fundamental right to vote before the state's six supreme court justices, Jealous said he was "cautiously optimistic" that civil rights groups might prevail in the case.
Perhaps cautiously pessimistic, I couldn't help but think, But what if they don't? When I asked Jealous this, he said:
"We will have volunteers throughout the state demanding that everyone who is eligible to vote and who has a right to vote will be able to vote. And then we will make sure every provisional ballot is counted and make sure the polls stay open and we will fight to make sure the polls stay open as long as necessary."
In other words, the NAACP, and a lot of civil rights and liberties organizations like them, would be absorbing the burden imposed by the Pa. law, which mandates specific forms of photo ID in order to vote.
A lot was covered in that 90 minute supreme hearing, and I strongly recommend that you read The Nation's Ari Berman and Philadelphia City Paper's Daniel Denvir for the minutiae of what transpired in the court session.
There was a lot of argument about what constituted "the fundamental right to vote" as guaranteed by Pennsylvania's constitution, and also how many people would be disenfranchised by the law. But at its root, this hearing was about burdens, and as Gang Starr once asked, "who was gonna take the weight?" There were many questions about which Pennsylvanians would have to carry the extraneous burdens of this law in order to vote, and who would not. There was also debate about whether the burden was on the state or on voters to prove that those extraneous burdens even existed. When supreme court justices asked why they should overturn the lower court ruling -- a huge ask -- the plaintiff's lawyer David Gersch said that "the fact people are burdened by this law triggers" their intervention.
And yet while the photo voter ID law was created on the premise that it would protect against voter fraud or unearth it, the state legislators never had the burden of having to prove that fraud actually exists -- evidence of it was never entered in the court record. Gov. Corbett's lawyer Alfred Putnam Jr. said yesterday that the Commonwealth didn't need to prove it (Also read great analysis by Pittsburgh City Paper's Chris Potter). Yet voters now have the burden -- voters of color disproportionately -- of complying with the law. It's as if voters are guilty of the potential of fraud until proven innocent by an ID card.
Jealous, who enlisted the NAACP in a rally held outside the courtroom, was asked by reporters who would be hurt by the law. He said, "We fight everyday to motivate people who until the day before may not have been thinking about voting. Well this puts an entire bureaucracy between them and their vote. So now they may not be able [to vote] if they wake up that morning and decide to vote for the first time. this hurts people of color, it disproportionately hurts poor people, and it hurts working people of all colors."
The silver lining was that some of the judges, the two liberal ones and Chief Justice Ronald Castille, asked with some frequency what would be wrong with giving a couple of years before implementing the law instead of rushing it. At one point, chief deputy attorney general for the state John Knorr conceded that the law "could be made better" if activated later rather than for this election.
But all that really did was confirm that passing the law was simply an eventual inevitable. Gersch consistently agreed with judges that while the law is terrible for 2012, that it's at least reasonable for 2014, if not good for 2016. Election law professor Rick Hasen told Reuters "If you write a play you wouldn't premier it on Broadway. If you implement a brand new law in time for the presidential election, it could just be bad." But the state wasn't fearful of that.
Sitting next to me was Olivia Thorne, president of the League of Women Voters of Pennsylvania. We got into a discussion of the early women's suffrage and abolitionist movements. This is a thorny history, she acknowledged. Many white women at that time were fully down for the abolitionist cause in the beginning, with the understanding that they'd help African Americans get the right to vote, and in turn everyone would push for women's voting rights. It didn't quite work out. Sexism among both the allies and the enemies of women suffragists drove women like Elizabeth Cady Stanton out of the abolitionist movement, and toward an unseemly racist turn. Read more about this in Ta-Nehisi Coates' "The Great Schism."
But now the LWV, inheritors of the women's suffrage movement, have gone hard in the paint for voting rights in Pennsylvania, South Carolina, Florida, Wisconsin and many other states -- and down to the mat, when many organizations threw in the towel or decided to play the sidelines.
Thorne was in Harrisburg for the voter ID hearing, and left "disappointed" by that decision, but showed right back up for yesterday's hearing. She spoke with me about the unique challenges faced by women and the elderly under this voter ID law, but she seemed to understand the other forces of race and class that draw additional burdens. She noted the long lines people will have to stand in on Election Day, "three to five hours in Philadelphia, but one to two hours in the suburbs," where she said her organization works most often.
The idea of shared but unequal burdens was lost upon Pennsylvania's lawyers and Justice Michael Eakin, one of the conservative justices. "There will never be a point where everybody can get something the legislature requires," said Eakin. "There will always be someone left burdened" by legislation.
That may be so, but the Voting Rights Act expressly protects people of color from having to incur burdens that white Americans vote freely without. And yet now organizations like NAACP, whose members fought and died for that law, have acquired the new burden of spending time, money, shoe leather, gas and other resources to align people with the new voting rules. Our community journalist James Ceronsky spent time with NAACP civic engagement director John Jordan earlier this week, who told him:
"Four years ago we were paying canvassers to do voter registration work," he says. Now, tasked with informing voters about ID requirements in addition registering them, his organization is "pleading and begging" for volunteers in the effort to get IDs in the hands of voters.
The state's attorney Knorr was oblivious to this. "The burden is quite minimal," he told the judges.
"It's minimal if you already have ID," Judge Debra Todd snapped back.
I caught Knorr in the court hallway afterward and asked him: What if you're wrong? What if thousands are burdened to the point of disenfranchisement on Election Day? "I can't answer that," he responded.
I asked Jealous the same, but he was more blunt: "If the Pennsylvania Republican leadership succeeds in stealing this election by denying people the right to vote there will be hell to pay."