Kane has discussed issue of law's constitutionality in recent remarks
February 27, 2013 10:00 AM
By Karen Langley Post-Gazette Harrisburg Bureau
HARRISBURG -- Kathleen Kane criticized the Pennsylvania voter ID law as a candidate. Now she's deciding whether to defend it as attorney general, suggesting in recent remarks that her duty to protect the state constitution could trump an obligation to defend state laws.
The controversial law was blocked from taking full effect for the November 2012 elections after a judge cited concerns about implementing the requirement. But a trial remains ahead to settle the constitutionality of requiring voters to show an approved form of photo identification at the polls.
The Office of Attorney General and attorneys in the Corbett administration have defended the law so far, and the parties have begun preparing for the trial this summer. But asked after legislative budget hearings last week if her office will defend the law at that proceeding, Ms. Kane responded: "We have talked about it frequently in our office, and we will make a decision as soon as we possibly can."
She explained that members of the office have discussed the constitutionality of the law.
"We're talking a lot about the role of the attorney general versus the role of also protecting the constitution," she said. "Sometimes, as you know, there is a parallel proceeding. In my view, the constitution always wins."
The voter ID measure, considered among the strictest in the nation, passed the state Legislature without the support of Democrats, who argued it would unfairly burden certain groups. During her campaign, Ms. Kane, a Democrat, criticized the requirement, saying in one interview that it would disenfranchise elderly, African-American and Latino voters.
The Pennsylvania law establishing the Office of Attorney General as an independent department states that "it shall be the duty of the attorney general to uphold and defend the constitutionality of all statutes" unless the courts rule otherwise. Asked about that requirement, Ms. Kane noted the obligation of the attorney general to uphold the state constitution.
"There are at times within the Commonwealth Attorneys Act and within our duties parallel proceedings," she said. "We look at the constitutionality of certain items. We are defenders of the constitution. We also defend the commonwealth agencies, and at times, if those two collide, then you have to make a decision. If they don't, then you do your job, just as the Commonwealth Attorneys Act lays out."
Ms. Kane said such an analysis is not limited to the defense of the voter ID law.
"With any law, if we look at it and we feel that it has unconstitutional elements, then first of all we would contact the necessary people to see if we could get it rectified, and then we would decide where to proceed from there," she said.
She noted that defense of the law could be referred to the Office of General Counsel, the governor's legal office, which has worked with the Office of Attorney General on the case.
Ms. Kane's spokeswoman said Tuesday it was premature to discuss how the office would proceed with the case.
"Voter ID is literally one of dozens of issues that Attorney General Kane inherited," spokeswoman Ellen Mellody said. "Attorney General Kane has been actively meeting with her staff on issues day-in and day-out since the day she took office, and will continue to do so. No decision has been made here."
A decision by her office to cease defending voter ID would be a second high-profile decision at odds with the administration of Gov. Tom Corbett, who praised the voting requirement when he signed it into law in March 2012.
Ms. Kane announced Feb. 14 that her office had determined that state law did not allow a contract for a British company to manage the Pennsylvania Lottery. The administration said Friday that the private management bid had been extended through the deadline for the attorney general's determination to be challenged in court.
While the attorney general is expected to defend the laws of Pennsylvania, she could be excused from doing so if she believes a statute violates the constitution, said Bruce Ledewitz, a professor at Duquesne University School of Law.
"It's not the attorney general's job to decide whether laws are constitutional or not," Mr. Ledewitz said. "That's the job of the courts. However, it is true that if she cannot in good faith defend the law because of her feeling it is unconstitutional, she has the responsibility to say so and have the law defended by somebody else."
In February 2011, the Obama administration announced it had determined the Defense of Marriage Act -- the 1996 law limiting federal recognition to the marriage of a man and a woman -- was unconstitutional. U.S. Attorney General Eric Holder, who, unlike Ms. Kane, is a member of the chief executive's administration, disclosed that his office would cease defending the law in court.
Like Mr. Ledewitz, Ken Gormley, dean of the Duquesne law school, noted that example of an attorney general ceasing defense of a law because of a belief was unconstitutional.
"Certainly a chief law enforcement officer like this can at times make judgments that laws are indefensible, until told otherwise by the courts," Mr. Gormley said.
Such a determination by a Pennsylvania attorney general is at least rare, according to people familiar with the Office of Attorney General and the Office of General Counsel, who could not name examples of a similar situation.
The voter ID law overtook political discourse in the capitol during its passage last year, and Democrats and advocates for the poor and minorities focused attention on the court proceeding that went to the Pennsylvania Supreme Court before yielding a temporary blocking of the law for the November 2012 election.
But the courts have not made a final determination on the constitutionality of the law. Both sides recently agreed to extend the temporary injunction -- under which poll workers ask, but cannot require, voters to show acceptable identification -- through the primaries in May for judicial and municipal contests.
The trial is scheduled to begin July 15, with the ultimate determination expected to be made by the Supreme Court.