A Pennsylvania judge's decision to uphold the state's tough new voter-identification law last month was based in part on a 19th century state court decision that at the time disenfranchised many Philadelphia workmen who the court didn't feel were virtuous enough to vote.

Voter rights advocates will ask the Pennsylvania Supreme Court on Thursday to overrule the Aug. 15 decision by Commonwealth Court Judge Robert Simpson. In his decision, Simpson heavily relied on an 1869 court case, Patterson v. Barlow, which legalized voting procedures uniquely for Philadelphia, with its large working class and immigrant populations.

"That process effectively disenfranchised the workmen who filled the city boarding houses at the end of the 19th century," University of Pittsburgh law professor Jessie Allen wrote in an opinion piece in the Pittsburgh Post-Gazette on Tuesday.

Simpson, in his ruling, quoted from the Patterson ruling, saying the discretion to establish voting requirements "belongs to the General Assembly, is a sound one, and cannot be reviewed by any other department of the government, except in a case of plain, palpable, and clear abuse of the power which actually infringes the rights of the electors."

What he didn't quote were the parts of the Patterson ruling warning that allowing Philadelphians to vote according to the same rules as the rest of the state 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."

A reader of the election law blog run by Rick Hasen, who is a University of California Irvine voting expert and author, also noted the bigoted aspects of the Patterson ruling last month.

The court of the time wrote: “Where the population of a locality is constantly changing, and men are often unknown to their next-door neighbors; where a large number is floating upon the rivers and the sea, going and returning and incapable of identification; where low inns, restaurants and boarding-houses constantly afford the means of fraudulent additions to the lists of voters, what rule of sound reason or of constitutional law forbids the legislature from providing a means to distinguish the honest people of Philadelphia from the rogues and vagabonds who would usurp their places and rob them of their rights?"

The parties who initially sued to overturn the law, argue in their appeal of Simpson's decision that "Patterson is an anachronism, predating the modern framework of differing levels of scrutiny by more than half a century and based on outright prejudice. Patterson is no guide to a current construction of the constitutional rights of Pennsylvanians."

The Commonwealth of Pennsylvania also cites Patterson -- in its favor -- in its Sept. 7 brief to the Supreme Court.

The use of Patterson as legal precedent is particularly relevant, because opponents of the law allege that the current Pennsylvania legislature is similarly trying to use the law to prevent certain people from voting -- in this case, demographic groups that tend to vote Democratic.

The state's voter ID bill came as Republican legislatures across the country pursued bills that would make it harder for people to vote, and register to vote. GOP supporters argue that the laws are necessary to reduce voter fraud, but voter fraud in general is extremely rare, and in-person voter fraud -- the only kind that would be affected by voter ID requirements -- is virtually nonexistent.

The opponents of the law cite ample evidence that the Pennsylvania law will in particular disenfranchise minorities.

Allen wrote in her piece: "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."

As Bob Warner reported for the Philadelphia Inquirer on Tuesday, Simpson "himself teed up" for the state's Supreme Court the issue of what level of judicial scrutiny should be applied to the legislature regarding voting procedure.

"[T]he appropriate level of scrutiny raises a substantial legal question," Simpson wrote in his opinion. "Indeed, if strict scrutiny is to be employed, I might reach a different determination on this prerequisite for a preliminary injunction."

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  • Pennsylvania

    You're an average voter in Pennsylvania. The night before Election Day, your wallet goes missing, leaving you without immediate access to any of the identification you'll need to vote at your local precinct the following morning. This would be a problem under <a href="http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#PA" target="_hplink">Pennsylvania's proposed photo ID law</a>, since <a href="http://www.huffingtonpost.com/2012/10/02/pennsylvania-voter-id-ruling_n_1919187.html" target="_hplink">blocked by a state judge</a>. While many people in this situation may have backup forms of identification, <a href="http://www.huffingtonpost.com/2012/07/05/pennsylvania-voter-id-law_n_1652469.html" target="_hplink">studies have shown</a> that a significant percentage of would-be voters don't. The state's safeguard against the immediate disenfranchisement of people in this situation would be a provisional ballot cast on the day of the election. But this doesn't mean your vote counts, yet. Anyone who casts a provisional ballot is required to "appear in person at the county board of elections" within six days of the vote to provide proof that their ballot was valid. If you're able to take time away from your job to do this, the process still requires a would-be voter to either show up with valid ID -- a replacement driver's license <a href="http://www.dmv.state.pa.us/fees/index.shtml" target="_hplink">would cost $36</a> and considerable time -- or to <a href="http://www.dmv.state.pa.us/pdotforms/voterid/VoterAffirmationNoProofofID.pdf" target="_hplink">sign an affirmation</a> that you are indigent and not able to afford the fees associated with acquiring a photo ID. Even if you make a rapid and somewhat expensive turnaround to get a replacement ID -- or alternatively swear under oath that you are too poor to pay for such a document -- there is no guarantee that your vote will end up counting. Many elections are largely decided before provisional voters have a chance to verify their validity, which could serve to discouraging them from following up with election officials or leave them effectively disenfranchised. In 2008, <a href="http://www.eac.gov/assets/1/Documents/2008 Election Administration and Voting Survey EAVS Report.pdf" target="_hplink">only 61.8 percent</a> of all provisional ballots cast were fully counted. If strict photo ID measures were implemented, however, the number of provisional ballots submitted would likely increase, as would the requirements for voters hoping to make them count. <em>(Photo: AP)</em>

  • Georgia

    Eleven percent of eligible voters say they lack current government-issued photo IDs, a <a href="http://www.brennancenter.org/page/-/d/download_file_39242.pdf" target="_hplink">survey</a> on the potential impact of voter ID laws found. You live in Georgia and you're one of them. Like 66,515 other Georgians, according to a <a href="http://brennan.3cdn.net/773c569439b50452e0_kzm6bo5l6.pdf" target="_hplink">recent study</a> from the Brennan Center for Justice, you also lack vehicle access and live more than 10 miles from an office that issues state ID. As a registered voter who's skipped the past few elections, you decide you'll vote this year. But you spend your life working multiple jobs to provide for your family, not tuned in to a news cycle that may have told you about a voter ID law that changed the requirements. If you were aware of the measure, you'd know that you have to get yourself to a state office during business hours to procure a photo ID in order to vote. According to the Brennan Center, these facilities are often only open part time, especially in areas with the highest concentration of people of color and in poverty. While the state does offer a free photo ID initiative, the Brennan Center points out that many of the offices provide confusing or inaccurate information about what Georgians need to do to get one. This may be a tough task as you juggle a strenuous work schedule with other commitments -- and that's assuming you're aware of the requirement. But you're not, so you head to your voting precinct on election day with no access to an acceptable form of identification and vote with a provisional ballot. To <a href="http://sos.georgia.gov/gaphotoid/3679BasicVotingInfo_printer final.pdf" target="_hplink">verify that ballot</a>, you'll have two days to present appropriate photo ID at your county registrar's office, which at this point wouldn't be doable. <em>(Photo: AP)</em>

  • Tennessee

    As an elderly Tennessee resident, you've made a decades-long Election Day habit of traveling to your local polling place and exercising your franchise. It's an important day for you, and it gives you the rare opportunity to leave your house, where you live alone. For a number of years, you've had an identification card that allows you to vote. But thanks to the state's strict new voter ID law, that document will no longer be sufficient. Reports <a href="http://www.wbir.com/news/article/185824/2/Tennessee-voter-ID-law-awaits-effect-on-seniors" target="_hplink">found</a> that 230,000 Tennesseans older than 60 possess driver's licenses that don't have photos on them. Such ID will not be accepted at polling places in November. While the state has agreed to issue photo IDs free to anyone who asks, a <a href="http://www.huffingtonpost.com/2012/07/12/tennessee-voter-id-law-program_n_1669323.html" target="_hplink">recent study</a> found that only a tiny percentage of potential targets have applied. Perhaps that's because people like you weren't aware of exactly how the change was going to affect them. Maybe you weren't even aware of the change. Poll workers tell you that you can cast a provisional ballot on Election Day. You'll <a href="http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#tn" target="_hplink">have until</a> "the close of business on the second business day after the election" to find an applicable piece of identification -- which you don't have -- and present it to a designated elections official. Whether it's your lack of an acceptable form of identification, the difficulty in finding transportation back to the elections official, or the prospect of having to go through the drain of the entire process again, you're discouraged, and give up. <em>(Photo: AP)</em>

  • Kansas

    You're a resident of Kansas in your early 60s, fully expecting to vote in November. Your driver's license is your primary form of ID, but you rarely carry it anymore. You don't drive and you haven't traveled abroad in years, leaving your passport expired or lost. In the months before the election, you changed addresses, and for some reason never received a notification from the state reminding you that your license had expired. On the day of the election, you head to your polling place, unaware that you're about to be told your license is expired and therefore invalid according to the state's new voter ID law (Kansans over the age of 65 can use expired IDs, but you're not there yet). You're given a provisional ballot and informed that <a href="http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#Kansas" target="_hplink">you must</a> now "provide a valid form of identification to the county election officer in person or provide a copy by mail or electronic means before the meeting of the county board of canvassers." While Kansas says it has <a href="http://www.wycokck.org/Internet2010ElectionBanner.aspx?menu_id=1092&banner=27765&id=26946" target="_hplink">historically counted</a> around 70 percent of its provisional ballots, this year provides a different landscape. The next steps can be somewhat difficult, and with the enacting of the state's photo ID law, the use of such ballots will undoubtedly become more commonplace. Faced with disenfranchisement, you must now race against the clock to have your vote included. With no other acceptable forms of ID available, you go about the process of renewing your license. <a href="http://www.ksrevenue.org/renewingdl.html" target="_hplink">According to the state</a>, this requires you to make your way to a state office, where you'll have to provide a number of identifying documents and pay the fee. By the time you can find someone to chauffeur you through this process -- public transportation is complex and unreliable where you live, <a href="http://www.kansas.com/2012/07/24/2418365/voter-id-law-burdens-wichita.html" target="_hplink">even if you're in an urban center</a> -- most of the major election results have been announced on the news. You decide the undertaking isn't worth the time. <em>(Photo: AP)</em>

  • Indiana

    You're a first-time voter in Indiana who <a href="https://forms.in.gov/Download.aspx?id=9341" target="_hplink">registered to vote</a> at the Bureau of Motor Vehicles using your Social Security number, a process that also <a href="http://www.in.gov/bmv/2339.htm" target="_hplink">required you</a> to get a state identification card, which you placed in your wallet. As a recent high school graduate who commutes with other workers to your full time job on a farm, you rarely need to present identification, so you didn't even bother to get a new ID card when it went missing from your locker a few weeks before the election. You risk potential firing when you travel to your polling place with other members of your community on voting day, but you're intent on participating in your first election. Without valid photo ID, however, you don't get to pull the lever. Under Indiana's new photo ID law, you're instead required to fill out a provisional ballot. But you're told you'll still need to jump through additional hoops that could prove too demanding. Now tasked with making visits during business hours to both the Indiana BMV to <a href="http://www.dmv.com/in/indiana/drivers-license-replacement" target="_hplink">get a replacement ID</a>, and then to the <a href="http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#in" target="_hplink">county elections board</a> to verify your ballot, you decide keeping your job is more important than voting. <em>(Photo: AP)</em>

  • Pennsylvania, Part II

    Viviette Applewhite was the lead plaintiff in a lawsuit challenging the constitutionality of Pennsylvania's new voter ID measure. She's a 93-year-old great-great grandmother who has voted regularly for decades. She claimed she didn't have access to any of the documents she'd need to vote. With no driver's license and no birth certificate, needed to get a photo ID, Applewhite said she'd be disenfranchised by the law. And she wasn't the only one. A <a href="http://www.aclupa.org/legal/legaldocket/applewhiteetalvcommonwealt/voteridclients.htm" target="_hplink">number of other plantiffs in the ACLU case</a> against Pennsylvania's photo ID law claimed they had been unsuccessful in attempts to get copies of their birth certificates and other papers due to complexities in the state's record-keeping. Most claimed the measure would take away their vote. The law has since been blocked for this election cycle.

  • Georgia, Part II

    You're a longtime resident of Georgia, but you've just recently returned home from a six-month out-of-town assignment from your job. You get into town on the Monday before Election Day. Most of your possessions are still being shipped from halfway across the country. Old friends invite you to a bar to catch up, but in the process of removing your driver's license from your wallet to present to a bouncer, it cracks in half, leaving it officially invalidated. Without a valid license, you won't be able to cast a ballot the next day. You'd renew it and choke down the $20 or more fee <a href="http://www.dmv.org/ga-georgia/id-cards.php#Replacing-an-ID-Card-" target="_hplink">for the replacement</a>, but the documents you need to present are in the moving truck. An election official informs you that you can fill out a provision ballot on Election Day. To <a href="http://sos.georgia.gov/gaphotoid/3679BasicVotingInfo_printer final.pdf" target="_hplink">verify that ballot</a>, you'll have two days afterward to present appropriate photo ID at your county registrar's office. Either you're telling the moving company to drive twice the speed limit for the next 48 hours straight, or you're accepting your disenfranchisement. <em>(Photo: AP)</em>