Will Blocked Texas Voter-ID Law Impact Pennsylvania?

A federal court today blocked Texas’ voter ID law, saying the state failed to prove the law would not negatively impact minorities. The proposed law is similar to that of Pennsylvania’s in that it would have forced all voters to show identification at the polls. Also like the Texas law, the Department of Justice is looking into Pennsylvania’s voter-ID law as we get closer to the November election.

The Texas law challenge was based on Section 5 of the Voting Rights Act of 1965, which says states with histories of racism must obtain federal approval before making changes to voting laws. Currently, Section 5 states include Texas, South Carolina, Arizona, Georgia, Louisiana, Mississippi, Alabama, Virginia and Alaska.

Since Pennsylvania doesn’t apply under Section 5, the DOJ has said it is looking into whether Pennsylvania law is inconsistent with Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate based on race in all states.

But will today’s decision have any effect on how the feds deal with Pennsylvania’s law, should it come to that?

“I don’t think so,” says Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, who notes he just started looking at the Texas opinion.

He notes that Sections 2 and 5 of the Voting Rights Act put the burden on different parties—when challenging Section 5 of the VRA, the state has to prove their case; under Section 2, the plaintiffs do. “The “burden” of proof shifts between the two, i.e., under strict the burden is on the state, whereas under most other standards the burden is on the challenger,” Walczak writes by email, noting it “makes a huge difference.”

Hence, the opinion’s statement that, specifically, “Texas has failed to make this showing—in fact, record evidence demonstrates that, if implemented, [Texas Voter ID] will have a retrogressive affect.”

This, too, was a factor in the ACLU’s unsuccessful challenge of the Pennsylvania law earlier this summer. At that time, explained Walczak, the Pennsylvania Constitutional judgment was based upon a “deference” standard, rather than a “strict scrutiny” standard, the former of which, applied in the earlier Pennsylvania case, puts the burden on the law’s challengers.

“The Justice Department’s efforts to uphold and enforce voting rights will remain aggressive and even-handed,” noted Attorney General Eric Holder upon hearing the Texas decision. “When a jurisdiction meets its burden of proving that a proposed voting change would not have a racially discriminatory purpose or effect, the Department will not oppose that change—when a jurisdiction fails to meet that burden, we will object.”

The ACLU of Pennsylvania filed a brief earlier today, challenging the Pennsylvania Commonwealth Court decision from earlier this month. The brief will review the facts based at trial.

The Court, the brief claims, “committed legal error by refusing to hold that voting is a fundamental right, applying instead a novel “substantial degree of deference/gross abuse” standard. The court acknowledged that under the fundamental-right standard, the result may have been different. With the exception of cases involving felons, the Pennsylvania Supreme Court has previously ruled that the right to vote is ‘sacred,’ ‘pervasive of other basic civil and political rights” and is the “bedrock of our free political system.’”

The court will respond next Friday, Sept. 7. Oral arguments in front of the Pennsylvania Supreme Court are scheduled for Thursday, Sept. 13 at City Hall.

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