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Pa.'s controversial ID law stands, as opponents lay out strategy for appeal

Opponents of Pennsylvania’s controversial voter ID law suffered a setback Wednesday—but they say this is far from over.

Lawyers for the civil-rights and voting-rights groups challenging the law say they’ll appeal the decision by a trial court judge not to block the law. They argue that the court used a standard of evidence that gave too much deference to lawmakers, and that they’ll urge an appeals court to apply a different standard.

Judge Robert Simpson declined Wednesday morning to grant an injunction against the law, which would require voters to show a picture ID. Studies suggest the law could disenfranchise hundreds of thousands of eligible voters, disproportionately the poor and minorities. One such voter, 93-year-old Viviette Applewhite, is a plaintiff in the case.

Opponents of the law argued in court that because the law jeopardized a fundamental right—voting—a “strict scrutiny” standard should be applied. That would have required the government to show that the law served a compelling state interest.

“When you have strict scrutiny, the government has the burden to justify any infringement on fundamental rights,” Vic Walczak of the ACLU of Pennsylvania told reporters on a conference call Wednesday afternoon.

That’s a burden the state likely would not have met: State officials admitted before the trial they had no evidence that voter fraud—which the law’s supporters say is the reason it’s needed—has even taken place. Indeed, Simpson acknowledged in his opinion (pdf): “If strict scrutiny is to be employed, I might reach a different determination.”

But Simpson instead used a lower standard of scrutiny, which gives far more latitude to the will of the state legislature. Under that lower standard, he ruled against blocking the law.

That issue of which standard of scrutiny to apply will be at the heart of the effort to overturn to convince Pennsylvania’s Supreme Court to overturn Simpson’s ruling, Clark and other lawyers challenging the law said.

“The court went with a very, very deferential standard,” said David Gersch of Arnold & Porter. “The Supreme Court is not bound in any respect by the trial court’s decision as to what level of scrutiny to apply.

Opponents of the law said they also took issue with Simpson’s finding that it won’t jeopardize people’s right to vote, in part because they can cast provisional ballots if challenged. Under Pennsylvania law, voters who cast provisional ballots still must show they have ID, within 6 days of the election, to make those ballots count. And very few voters come back after Election Day.

The state's Supreme court currently has 6 members—three Republicans and three Democrats. To overturn the lower court's ruling, at least four votes would be needed. 

And Rep, Elijah Cummings charged on MSNBC’s NOW with Alex Wagner that the law is a deliberate effort to disenfranchise voters, and that voter fraud is largely non-existent.

“It’s one thing if we are going to have laws to address a true problem. But as a most recent report just came out a day or so ago clearly stated, that there’s maybe one case of voter fraud for every 15 million Americans,” Cummings said, referring to a detailed study released Tuesday by the Walter Cronkite School of Journalism and Mass Communication at Arizona State University. “So the question is, do you jeopardize people’s right to vote? Do you cause them to have to sit by the side and not participate?”

Earlier this month, Lean Forward's Evan Puschak and Alex P. Kellogg traveled to Pennsylvania to talk to some of those likely to be affected.