Judge McGinley Bungles Voter ID

Bernard L. McGinley's Pennsylvania photo ID opinion leaves us wondering, "Just what's this guy up to?" For starters, it's a split decision. McGinley rules against requiring a photo ID at the polls, but rejects the equal protection claim so dear to the hearts of race baiters. The law failed to meet the "unassailable need to ensure liberal access to compliant photo ID" -- only 17,000 IDs were issued --yet there was no "purposeful discrimination."

Indictments of legislative stupidity compounded by administrative ineptitude have a certain appeal, and this opinion has them aplenty. Even with pure intentions, it implies, when government gets its hands on a problem it mucks things up. Especially when it's trying to fix what ain't broke.

Hizzoner, however, hardly deserves our applause. Attacks on flawed design and inept execution can't hide the fact that his opinion is driven by tired Democratic talking points: 1) there's no such thing as in-person voter fraud; and 2) requiring photo ID disenfranchises hundreds of thousands of voters. They're necessary, of course, because without them putting the electoral system at risk by doing in photo ID might seem to do more harm than letting it stand. And there's a bonus. Fixating on them allows McGinley to ignore the Supreme Court's 2008 decision in Crawford v. Marion County Election Board -- the Indiana photo ID case -- by claiming Pennsylvania can't possibly have a compelling interest in preventing voter fraud because there's no such thing.

McGinley leans especially hard on "liberal access," an ultra-slippery standard set by the statute that seems "unassailable" because it's so difficult to quantify. All it takes to put it in play is anecdotal evidence and talking points, and that's exactly what we get. In McGinley's hands "liberal access" is not just an excuse for striking down the law but a way to spin a very embarrassing statistic, the shockingly small number of applications for free ID. If hundreds of thousands of voters are desperate for photo ID there should be more than a trickle of applicants. There's not, so the government must be blamed; otherwise the lack of demand puts the lie to the disenfranchisement canard.

Blaming the government is what McGinley does best, in creating the impression that Voter ID had a rollout worthy of ObamaCare. It was in trouble from the start, attacked from the left, harassed by the courts, and repeatedly tinkered with. Nothing helped. The statute called for ID issued by the Pennsylvania Department of Transportation (PennDOT Voting ID); but when that fell flat, the courts directed the Department of State (DOS) to create its own version, free DOS ID. That didn't set the world on fire either: a mere 17,000 IDs were issued, bringing on more litigation.

Attacking government bungling allows McGinley to tiptoe around the question "Is requiring photo ID constitutional?" He gets to ignore Crawford by pushing two local reasons for defanging the law that are dear to critics of ObamaCare: 1) DOS ID was created by administrative fiat, thus violating the terms of the statute; and 2) the difficulty of obtaining DOS ID denies "liberal access" to a huge number of registered voters. According to McGinley DOS ID was dead on arrival because by doing what the courts ordered, DOS usurped PennDOT's statutory authority.

McGinley trashes the government for lawlessness and incompetence anyway. "[T]the voter ID law is not being implemented according to its terms" because DOS ID is "an unauthorized agency creation" that is "difficult to obtain." DOS has, in effect, "rewritten the statute." Worse, the state has failed to stimulate demand by educating the public about free photo ID, largely because it keeps rewriting the rules.

And DOS had help screwing things up. Next up for trashing is a "legislative disconnect from reality" that made IDs noncompliant if they lack an expiration date. The state conceded this "is completely unrelated to confirming a voter's identity," yet the requirement "rendered invalid over 250,000 PennDOT-issued ID cards of registered electors."

Finally, McGinley attacks the use of PennDOT's Driver Licensing Centers (DLCs) to process photo ID applications: there are no DLCs in nine counties, and DLCs in twenty-two others are open only one or two days a week; DLC employees aren't trained to process DOS ID applications; PennDOT and DOS databases can't talk to each other, causing errors and delays; and applicants are not segregated so they can receive prompt service, but go into the holding pens with the regular DLC herd.

As with the ObamaCare rollout, the result has not been a shining path to success but a nightmare of uncertainty, confusion, frustration, and delay. All of which strongly implies low turnout was the government's fault.

From there the opinion spirals down into cherry-picking statistics, overlooking their obvious implications, exploiting the elderly, disabled, and undocumented to provide heartbreaking examples of hardship, and invoking "liberal access" as a kind of progressive talisman. Rejecting expert testimony that its results are problematic, McGinley endorses a statistical match of PennDOT's database with the Statewide Uniform Registry of Electors (SURE). With laser-like precision the match found "between 255,000 and 511,000 registered voters who lack compliant photo ID." Not only is the huge fudge factor no problem, but certifying this estimate doesn't stop McGinley from chiding the state for relying on the same SURE database, plagued as it is with "missing and outdated information." Entries 98 and 99 in Appendix A report 130,189 invalid license numbers and 748,000 missing Social Security numbers, before warning that SURE's information on deceased voters and out-of-state migration is outdated. The one thing McGinley doesn't question is the existence of 500,000 disenfranchised voters.

Chastising one side and certifying the other for using the same database is no small defect, and it's got company. Crawford made it clear that in our Motor-Voter age "outdated information" produces bloated voter rolls, the raw material of fraud. People die and move out of state. Licenses expire. And not just in Indiana. Pennsylvania sends a letter to inactive voters after five years, but only an "affirmative response" changes the voter's status. If the voter doesn't respond, two federal election cycles pass before she's finally purged from the rolls.

Predictably, bloated voter rolls compromise the accuracy of the match. Entries 193 and 194 in Appendix A provide a classic example. Based on its own data match, DOS mailed information about DOS ID to 759,000 voters. Approximately 150,000 letters were returned because "the individual no longer lived at that address." So why would McGinley mention this? Not to question his estimate, of course. He's complaining about the flubbed education effort that kept 480,000 voters from applying.

So there can be no mistake, Entry 157 of Appendix A states flatly that "[v]erifying registration through the SURE database" denies "liberal access" because it is "not reliable." When is SURE reliable? When McGinley needs it to be. Guess that's what we should expect of an opinion that relies on partisan talking points, obsolete data, anecdotal evidence, unverifiable assumptions, and unquantifiable standards while spurning Supreme Court precedent. McGinley has us looking at squirrels because he's trapped by his own numbers. He needs a horde of disenfranchised voters so we'll think keeping the law does the greater harm (SURE's reliable); but he can't let us notice the elephant in the room, those 480,000 applications that weren't delayed, screwed up, or denied, but just weren't made (SURE sucks).

Weren't made? With the fate of the first black presidency on the line and the Obama campaign, the DNC, and every tax-exempt "nonpartisan" leftwing outfit from the League of Women Voters to the NAACP frantic to get every minority and deadbeat who could fog a mirror into the voting booth? In a state where 85% of the voting age population is registered, and 68% of registered voters voted, less than 4% of McGinley's mythical 500,000 managed to get free ID? And amid the din of attacks from the left and incessant meddling by the courts it was all the government's fault? Did a thirty minute wait at the DLC have that huge an effect? A computer glitch at PennDOT? Really? 480,000 applications worth?

That cackling in the background's Occam sharpening his razor.

Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at edward.stewart27@yahoo.com.