On Thursday, the Pennsylvania Supreme Court will sit to decide the fate of the state's controversial new law requiring all voters to show picture ID. To understand what's at stake -- for the court's reputation as well as the voting public -- you need to know some legal history.
This is not the first time the Pennsylvania high court has ruled on the constitutionality of extraordinary procedures to establish voter eligibility. In 1869, in a case called Patterson v. Barlow, the court upheld a law requiring some voters to go through bureaucratic hassles far more inconvenient than sitting for a photo at PennDOT. And the court's decision in that case is certainly relevant, because it approves burdening voters to protect election integrity, a conclusion that seems to bless the new ID requirements.
Last month, a Commonwealth Court judge approved the new voter ID law, quoting at length from the old Patterson case to support the new law's constitutionality. It is this decision that the high court will review this week.
In both this year's case and Patterson, plaintiffs argued that making it particularly hard for some voters to prove their eligibility violates the Pennsylvania Constitution's guarantee of "free and equal" elections. The trial judge in the voter ID case shot down that argument. In language quoted directly from Patterson, he explained that elections "are free only to the qualified electors of the Commonwealth" and "the Legislature must establish ... the means of ascertaining who are and who are not the qualified electors."
This quote from Patterson certainly sounds fair and reasonable -- and like a strong basis for approving the new voter ID law. But not so fast. A shocking piece of history is lurking beneath that smooth legal conclusion.
Reading the full opinion in Patterson exposes it as a blatant example of the anti-democratic voter suppression alleged by plaintiffs in the current voter ID case.
The law approved in Patterson enacted a complicated set of registration procedures for Philadelphia (with its large working-class and immigrant populations) and a simpler procedure for the rest of the state. Equally outrageous, the law required any would-be voter who gave a hotel or boarding house as his address to go through an arduous verification process, including getting two "private householders" to swear that he was qualified to vote. That process effectively disenfranchised the workmen who filled the city boarding houses at the end of the 19th century.
Amazingly, in Patterson the Supreme Court went out of its way to clarify -- and endorse -- the law's biased approach. The opinion justifies a tougher process for Philadelphia voters because "rogues and strumpets do not nightly traverse the deserted highways of the farmer. Low inns, restaurants, sailors' boarding-houses and houses of ill fame do not abound in rural precincts, ready to pour out on election day their pestilent hordes."
For good measure, the court explained that to overturn the tighter procedures for Philadelphia voters "would be to place the vicious vagrant, the wandering Arabs, the Tartar hordes of our large cities, on a level with the virtuous and good man."
To be sure, the new voter ID law is different from the law upheld in Patterson. So it is possible to acknowledge Patterson's illegitimacy and find other reasons to approve voter ID.
But Patterson is relevant in another way. It shows that a majority of the Pennsylvania Supreme Court was once led to rationalize burdensome election procedures based on generalized and biased fears about fraudulent voting. That historic mistake should make the court hesitate to uphold another election law ostensibly aimed at preventing fraud when the state has offered no evidence that any such fraud has actually occurred.
Wrenched out of context, the legal language that the Commonwealth Court judge chose to quote from Patterson sounds like a fair basis for upholding the new voter ID law. But, in fact, the old Patterson case represents the Pennsylvania Supreme Court's shameful failure to protect elections from a law designed to make voting harder for some people than for others.
The court should not compound its earlier mistake by treating Patterson as legal support for new voting procedures. Given the biased nature of that old decision, using it to uphold new voter ID requirements can only undermine public confidence in the state's electoral -- and judicial -- process.opinion_commentary
Jessie Allen is an assistant professor at the University of Pittsburgh School of Law (email@example.com). She has litigated voting rights cases in federal courts in the past but has no role in the Pennsylvania voter ID case. She is consulting on a separate project with one of the organizations representing the plaintiffs in that case.