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Brief Applewhite Et Al v the CW of PA

Brief Applewhite Et Al v the CW of PA

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THE COMMONWEALTH COURT PENNSYLVANIA 
Docket No. 330 2012 
VIVIETTE APPLEWHITE; WILOLA SHINHOLSTER LEE; GROVER FREELAND; 
GLORIA CUTTINO; NADINE MARSH; DOROTHY BARKSDALE; BEA BOOKLER; 
JOYCE BLOCK; HENRIETTA KAY DICKERSON; DEVRA MIREL ("ASHER") 
SCHOR; THE LEAGUE WOMEN VOTERS PENNSYLVANIA; NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT COLORED PEOPLE, 
PENNSYLVANIA STATE CONFERENCE; HOMELESS ADVOCACY PROJECT, 

Petitioners, 
THE COMMONWEALTH PENNSYLVANIA; THOMAS CORBETT, HIS 
CAPA CITY GOVERNOR; CAROL AICHELE, HER CAP CITY 
SECRETARY THE COMMONWEALTH, 

Respondents. 

BRIEF AMICI CURIAE STATE REPRESENTATIVE DARYL METCALFE 
AND PENNSYLVANIA STATE REPRESENTATIVES SUPPORT 
RESPONDENTS' OPPOSITION PETITIONERS' APPLICATION FOR 
SPECIAL RELIEF THE NATURE PRELIMINARY INJUNCTION Theodore Hoppe, Jr. Attorney I.D. No. 62082 Hoppe Martin, LLP 423 McFarlan R,oad Kennett Square, 19348 
(610) 444-2001 

Counsel for.Amici Curiae 
January 17, 2012 

TABLE CONTENTS 

TABLE CONTENTS ......................................................................................................i 

TABLE AUTHORITIES ...............................................................................................ii 

.........................................................................................

INTEREST AMICI CURIAE 
SUMMARY THE ARGUMENT .................................................................................. 

ARGUMENT
....................................................................................................................... 	
Under the Pennsylvania Constitution, the Legislature Possesses 
the Undoubted Authority Regulate elections ............................................ 

II. 	
Com1s Apply "Gross Abuse" Standard Election Statutes ...................... 

III. 	
The Commonsense Regulatory Scheme Passed the Legislature Clearly Constitutional ................................................................................7 934 does not disenfranchise qualified electors ................... ........ 934 secures "free and equal" elections ...................................8
..... 934 does not impose any additional qualifications vote .......... 

CONCLUSION.................................................................................................................. 

TABLE AUTHORITIES 
Appeal a/Cusick, 136 Pa. 459 (Pa. 1890) 
.......................................................................... 

Free Speech LLC Philadelphia, 
884 A.2d 966 (Pa. Commw. Ct. 2005) .................................................................2-3 Nomination Paper Rogers, 
908 A.2d 948 (Pa. Commw. Ct. 2006) ..................................................................... 

Mixon 
Com. 
759 A.2d 442 (Pa. Commw. Ct. 2000) .................................................................5-6 

Patterson 
Barlow, Pa. (1869) ................................................................... 3-5, 9-10 

Winston 
Moore, 244 Pa. (1941) ...................................................................... .4-6, 

INTEREST AMICI CURIAE March 14, 2012, the Pennsylvania House Representatives passed House Bill 934 ("HB 934") with 104 members voting support the legislation.1 Later that day, Governor Tom Corbett signed 934 into law. 934 requires qualified elector (i.e., registered voter) provide evidence when casts his ballot ensure that who says is. addition, 934 designates the various types documents qualified elector may provide when casts his ballot. The various types documents, known "proof identification," are those that: 
(1) were issued the United States, the Commonwealth Pennsylvania, municipality the Commonwealth employee that municipality, accredited Pennsylvania institution higher education, Pennsylvania care facility; and (2) generally contain the name and photograph the qualified elector well expiration date. Also, prior election, qualified elector does not have one the acceptable documents, 934 requires the Pennsylvania Department Transpotiation provide acceptable document the qualified elector cost. Moreover, qualified elector does not have one the various, acceptable types documents needed cast ballot, 934 permits that qualified elector cast provisional ballot, which will counted when the qualified elector affirms affidavit within six calendar days that was the individual who casted the provisional ballot. Finally, the law requires the Secretary the Commonwealth assist the public complying with the new requirement for voting. other words, 934 nothing more than commonsense regulatory scheme that seeks promote voter confidence the election process. 

The Pennsylvania Senate passed earlier version 934 with amendments March 2012. The March 14, 2012 vote the Pennsylvania House Representatives passed 934 with the Senate's amendments. 
The Amici are Representative Daryl Metcalfe -the author of, and the driving force 

behind, 934-and the additional 103 members the Pennsylvania House 
Representatives who voted support ofHB 934.2 Amici therefore have direct interest this 
matter. 
Petitioners seek preliminary injunction prevent this commonsense regulatory scheme 
from taking effect. deciding whether issue preliminary injunction, this Court must 
consider the following factors: (1) whether the injunction necessary prevent immediate and 
irreparable harm that cannot adequately compensated damages; (2) whether greater injury 
would result from refusing the injunction than from granting it; (3) whether the injunction will 
restore the parties their status existed immediately prior the alleged wrongful conduct; 
Rep. Adam Harris, 82nd Legislative District; Rep. Brad Roae, 6th Legislative District; Rep. Brian Ellis, 11th Legislative District; Rep. Bryan Cutler, OOth Legislative District; Rep. Dan Truitt, 156th Legislative District; Rep. Dave Hickernell, 98th Legislative District; Rep. David Maloney, 30th Legislative District; Rep. Dick Hess, 78th Legislative District; Rep. Donna Oberlander, 63rd Legislative District; Rep. Doyle Heffley, !22nd Legislative District; Rep. Eli Evankovich, 54th Legislative District; Rep. Fred Keller, 85th Legislative District; Rep. Gary Day, 187th Legislative District; Rep. George Dunbar, 56th Legislative District; Rep. Gordon Denlinger, 99th Legislative District; Rep. Jeff Pyle, 60th Legislative District; Rep. Jerry Knowles, !24th Legislative District; Rep. Jim Cox, !29th Legislative District; Rep. Jim Marshall, 14th Legislative District; Rep. Joe Emrick, 137th Legislative District; Rep. Joe 
Hackett, 161 Legislative District; Rep. Justin Simmons, 131 Legislative District; Rep. Kathy Rapp, 65th Legislative District; Rep. Kerry Benninghoff, 171 Legislative District; Rep. Mark Gillen, !28th Legislative District; Rep. Mark Mustio, 44th Legislative District; Rep. Martin Causer, 67th Legislative District; Rep. Matt Gabler, 75th Legislative District; Rep. Mauree Gingrich, IOI Legislative District; Rep. Mike Reese, 59th Legislative District; Rep. Paul Clymer, 145th Legislative District; Rep. Randy Vulakovich, 30th Legislative District; Rep. Rick Saccone, 39th Legislative District; Rep. Rob Kauffman, 89th Legislative District; Rep. Ron Marsico, 105th Legislative District; Rep. RoseMarie Swanger, 102nd Legislative District; Rep. Ryan Aument, 41st Legislative District; Rep. Scott Boyd, 43rd Legislative District; Rep. Scott 
Hutchinson, 64th Legislative District; Rep. Scott Perry, 92nd Legislative District; Rep. Seth Grove, 96th Legislative District; Rep. Stan Saylor, 94th Legislative District; Rep. Stephan Barrer, 160th Legislative District; Rep. Stephen Bloom, 99th Legislative District; Rep. Sue 
Helm, 04th Legislative District; Rep. Tina Pickett, 110th Legislative District; Rep. Todd Rock, 90th Legislative District; Rep. Tom Killion, 168th Legislative District; and Rep. Will Tallman, 193rd Legislative District. 
(4) whether Petitioners are likely prevail the merits; (5) whether the injunction 
reasonably suited abate the offending activity; and (6) whether the injunction will not adversely affect the public interest. Free Speech LLC Philadelphia, 884 A.2d 966, 970 (Pa. Commw. Ct. 2005). Although Amici believe that none the above factors suppott issuance preliminary injunction, this brief focuses solely whether Petitioners are likely prevail the merits their case. their Petition for Review, Petitioners incorrectly assert the standard review for this Court apply when deciding the merits the case. Petitioners assett that this Comi should employ "balancing test" standard; however, Pennsylvania comis must utilize the "gross abuse" standard when determining whether election laws violate the "free and equal" clause the Pennsylvania Constitution. Therefore, Amici submit this brief help clarify the standard employed this Comt and support the legislature's undoubted authority pass commonsense legislation regulating elections. 
SUMMARY THE ARGUMENT 
Amici's position simple and straightforward. While the Pennsylvania Constitution requires elections free and equal, does not provide the framework for how secure such end. Therefore, the Pennsylvania Supreme Court recognized that "system laws regulating the elections only the means securing" free and equal elections. Patterson Barlow, Pa. 54, (1869). addition, "this system regulation the subject legislation over which the legislature exercises sound discretion." Id. passing 934, the legislature did more than exercise its sound discretion and create commonsense regulatory scheme secure free and equal elections. The legislature undoubtedly had such authority and used accordingly. addition, because the legislature has the discretion enact laws regulating elections, 
the courts must not overturn the policy choices the legislative branch unless the legislature acts with gross abuse. this matter, the legislature used its undoubted authority regulate elections. using its authority, has not caused anyone disenfranchised, has maintained and promoted free and equal elections, and has not expanded upon the qualifications set forth the Pennsylvania Constitution. Because the legislature has not grossly abused its authority, 934 should not preliminarily enjoined. 
ARGUMENT 	Under the Pennsylvania Constitution, the Legislature Possesses the Uncloubtecl Authority Regulate Elections. 
The Pennsylvania Constitution "appoints the time the general election, prescribes the qualifications voters, and enjoins the ballot." Patterson, Pa. 75. addition, requires that elections "be free and equal." says nothing more. The Constitution does not establish any rules provide any guides ensure free and equal elections. Id. 75. The manner which elections are conducted left solely statute. Id. The legislature therefore must pass legislation provide framework for conducting elections. Id. ("[T]he power regulate elections legislative one, which has always been exercised the General Assembly since the foundation the government."). the Pennsylvania Supreme Court has stated, "Who makes the law? The legislature." Winston Moore, 244 Pa. 447, 454 (1914). The question, therefore, becomes what laws the legislature has the authority pass. This question too has been answered the Comi. The legislature may pass laws "to regulate elections" effo1i "preserve the purity the ballot." Appeal Cusick, 136 Pa. 459, 467 (1890). Such regulations include "designat[ing] the evidence which shall identify and prove ... the persons and the qualifications the electors." 
Patterson, Pa. 75; see also id. (It the duty the legislature "to secure freedom and 
equality such regulations will exclude the unqualified and allow the qualified vote."). sum, has been settled for well over 100 years that the legislature has the authority pass legislation that regulates elections. 1890, the Pennsylvania Supreme Court succinctly declared: 
While the constitution has thus defined the rights voters, silent many respects how those rights shall exercised. prescribes very clearly the qualifications which voter must possess, but provides machinery which ascettain whether particular voter possesses such qualifications. All this has been wisely left the legislature. would out place the fundamental law. 
Appeal Cusick, 136 Pa. 466. stated above, 934 commonsense regulatory scheme regulating how electors may exercise their right vote. creates rules and provides guides ensure free and equal elections. Therefore, was well within the legislature's authority pass such legislation. 
II. Courts Apply "Grnss Abuse" Standard Election Statutes. stated above, laws regulating elections "have always been regarded peculiarly within the province the legislative branch government." Winston, 244 Pa. 455. Therefore, the Pennsylvania Supreme Court has held that such laws "should never stricken down the coutts unless plain violation the fundamental law." Id. "When the legislature possesses undoubted authority regulate ... its discretion not the subject review." Patterson, Pa. 79. Similarly, the Court explained that because the discretion belongs the legislature, any laws regulating elections "cannot reviewed any other department the government, except case plain, palpable and clear abuse the power which actually infringes the rights the electors." Id. 75; see also Afixon Com. 759 A.2d 442, 447 (Pa. 
Commw. Ct. 2000), ajf'd, 783 A.2d 763 (Pa. 2001) ("Any party challenging legislative 
enactment has heavy burden, and legislation will not invalidated unless clearly, patently, 
and plainly violates the Constitution this Commonwealth. Any doubts are resolved favor finding constitutionality." (internal citations omitted)). addition, the Pennsylvania Supreme Court has defined the standard review for laws regulating elections follows: the absence any express constitutional limitation upon the power the legislature make laws regulating elections and providing for official ballot, nothing sho1t gross abuse would justify court striking down election law demanded the people, and passed the law-making branch government the 
exercise power always recognized and frequently asserted. Winston, 244 Pa. 457 (1914). This "gross abuse" standard remains the standard this day. This Court recently reiterated: 
From Winston Moore, find that our Supreme Court has applied "gross abuse" standard determine whether election statutes violate the "free and equal" clause, thereby giving substantial deference the judgment the legislature. This stands stark contrast the standard utilized under the federal constitution, which employs "balancing test." Nomination Paper Rogers, 908 A.2d 948, 954 (Pa. Commw. Ct. 2006). other words, contrary the standard utilized under the federal constitution, Pennsylvania comts not weigh the potential burdens electors against the Commonwealth's interests enacting such legislation. Therefore, the Petitioners' argument (that the Commonwealth has not presented any evidence that there compelling legitimate state interest that exists justify 934 that 934 narrowly tailored) incorrect.3 The only question before this Court whether the 
Similarly, the Members the Democratic Caucus the Pennsylvania House Representatives also incorrectly argue that 934 should stricken because they "believe that the respondents this case will unable show that [HB 934] was strictly necessary 
legislature acted with gross abuse when passed 934 and created commonsense regulatory 
scheme secure free and equal elections. 
III. 	The Commonsense Regulatory Scheme Passed the Legislature Clearly Constitutional. 934 does not disenfranchise qualified electors. 
Petitioners assett that 934 "imposes heavy burden the fundamental right qualified electors Pennsylvania vote, and violates the Pennsylvania Constitution preventing elections from being 'free and equal' because, for many registered voters, these burdens will either deny the franchise itself make difficult amount denial." Petition for Review 'if 135. addition, they complain that some instances 934 imposes "onerous burdens terms time, effort, travel, and expense." 'if 136. 
First, Amici dispute factual matter that 934 places onerous burdens qualified electors. 934 only requires qualified elector present one several types documents when casts his ballot. qualified elector does not have acceptable document, the Pennsylvania Department Transpo1tation will provide one the qualified elector cost. addition, executive agencies have sought decrease any bureaucratic inconveniences that may have been associated with obtaining acceptable document. For example, Secretary the Commonwealth Carol Aichele recently announced simplified process that allows qualified electors obtain the acceptable, free document. See Press Release, Secretary Commonwealth Announces Simplified Method Obtain Photo for Pennsylvania-Born Voters, Pennsylvania Department State (May 23, 2012), available http://www.pottal.state.pa.us. Because 934 
narrowly tailored meet" compelling state interest. Brief Amici Curiae 12. Just because the courts Missouri utilize "balancing test" standard, does not mean that this Comt should employ one. This Court must apply the "gross abuse" standard set forth the Pennsylvania Supreme Court. 
does more than designate various documents that may presented when qualified elector 
casts his ballot, Amici dispute that the law places heavy burden vote. 
Second, Pennsylvania courts have recognized that "hardship not the test the constitutionality law." Patterson, Pa. 83. Courts should not declare laws regulating elections unconstitutional "on grounds mere hardship, for defects regulation, which are not clear and palpable violations the letter very spirit the Constitution." Id. 85. law can only pronounced unconstitutional "when the law itself subverts the true electors' rights." 

Id. 
Petitioners not assert that the law itself disenfranchises qualified electors. Petitioners instead assert that the legislature's policy decision require qualified elector submit evidence identify and prove that the qualified elector who says may burden qualified elector. However, laws requiring qualified elector demonstrate his identity are nothing new. For example, first-time qualified elector qualified elector voting for the first time new polling place must provide form identification such document containing photograph Pennsylvania tax bill. other words, laws that some qualified electors may find burdensome already exist and are constitutional. Inherent any requirement that evidence presented will lead some individuals have difficulty presenting such evidence. However, that not legitimate reason overturn commonsense policy choice the legislature. 934 secures "free and equal elections." 
Petitioners assert that 934 "imposes burdens the right vote that not bear upon all voters equally under similar circumstances." Petition for Review 145. addition, they complain that the law imposes different burdens different electors. 147-48. Finally, Petitioners assert that because different electors may provide different evidence proving their 
identity, 934 violates the "equal" requirement the Pennsylvania Constitution.  145-148. 
However, the "free and equal" provision the Pennsylvania Constitution does not require uniformity. Patterson, Pa. ("[The Constitution] has not said that the regulations effect this shall uniform."). the Pennsylvania Supreme Court explained: uniformity regulation unsuited different localities, the end must attained diversity. Ifin one part the state system secures electors free and equal election, but fails secure another part because the difference circumstances, what principle constitutional law makes unlawful enact other provisions counteract the circumstances, and secure the true purpose the Constitution? Good sense, good order and sound morality require this diversity regulation when secures the end; and great fallacy substitute uniformity regulation for free and equal election. 
Id. 75-76. The legislature passed commonsense regulatory scheme secure free and equal elections. designating numerous types acceptable documents, 934 attempts ensure that all qualified electors, they desire, have the opportunity and ability cast ballot. Although allowing for the possibility that qualified electors will provide different evidence prove their identity not "equal" its means, the scheme passed the legislature seeks ensure that each vote cast qualified elector counted. other words, the law, the end, secures free and equal elections. 934 therefore constitutional under the Pennsylvania Supreme Court's holding Patterson. 934 does not impose any additional qualifications vote. 
Petitioners assert that 934 "imposes unconstitutional qualification vote." Petition for Review 156. Aiiicle VII, Section the Pennsylvania Constitution sets forth the four qualifications required individual vote the Commonwealth. These 

qualifications are conditions that must possessed for individual entitled vote. 934 does not alter these conditions. Nor does expand them. 
Instead, 934 creates framework which qualified elector who casts ballot presents evidence that he, fact, the qualified elector claims be. The evidence determined the legislature document that: (1) was issued the United States, the Commonwealth Pennsylvania, municipality the Commonwealth employee that municipality, accredited Pennsylvania institution higher education, Pennsylvania care facility; and (2) generally contains the name and photograph the qualified elector well expiration date. addition, qualified elector does not have one the various, acceptable types documents needed cast ballot, 934 permits that qualified elector cast provisional ballot, which will counted when the qualified elector affirms affidavit within six calendar days that was the individual who casted the provisional ballot. other words, 934 "designates ... the evidence which shall identify and prove ... the persons and the qualifications the electors." Patterson, Pa. 75. does not entitle individuals vote who are not qualified electors. Nor does preclude individuals who are qualified electors from being entitled vote. 934 simply creates commonsense regulatory scheme ensure that only qualified electors participate elections. 
CONCLUSION the Pennsylvania Supreme Court declared, "The power regulate elections legislative, and has always been exercised the law-making branch the government." Winston, 244 Pa. 454. this matter, the legislature utilized its undoubted authority pass law regulating elections. promote voter confidence the election process, the legislature decided that qualified elector must provide evidence his identity when casts his ballot. 
addition, ensure "free and equal elections," the legislature designated numerous types documents qualified elector may provide when casts his ballot. This commonsense policy choice the legislature was not gross abuse its authority. Therefore, for the foregoing reasons, Amici respectfully requests that this Court deny Petitioners' request for preliminary injunction. Dated: July 17, 2012 Resp ctfully Submitted, 
Hoppe Martin, LLP  
423 McFarlan Road  
Kennett Square, 19348  
(610) 444-2001  
Counsel for Amici Curiae Counsel:  
Paul Orfanedes  
Michael Bekesha  
JUDICIAL WATCH, INC.  
425 Third Street S.W., Suite 800  
Washington, 20024  
(202) 646-5172 THE COMMONWEALTH COURT PENNSYLVANIA 
VIVIETTE APPLEWHITE; WILOLA  
SHINHOLSTER LEE; GROVER FREELAND;  Docket No. 330 2012  
GLORIA CUTTINO; NADINE MARSH;  
DOROTHY BARKSDALE; BEA BOOKLER;  
JOYCE BLOCK; HENRIETTA KAY  
DICKERSON; DEVRA MIREL ("ASHER")  
SCHOR; THE LEAGUE WOMEN VOTERS PENNSYLVANIA; NATIONAL  
ASSOCIATION FOR THE ADVANCEMENT COLORED PEOPLE, PENNSYLVANIA ATE CONFERENCE;  
HOMELESS ADVOCACY PROJECT,  
Petitioners,  
THE COMMONWEALTH PENNSYLVANIA;  
THOMAS CORBETT, His Capacity  
Governor; CAROL AICHELE, Her Capacity  
Secretary The Commonwealth,  

CERTIFICATE SERVICE certify that this day, July 17, 2012, serving the foregoing BRIEF AMICI CURIAE upon the persons below via first-class, U.S. mail, postage prepaid, which service 
satisfies the requirement Pa. R.A.P. 121  
Witold Walczak  Law Office Marian Schneider  
ACLU Pennsylvania  295 Swedesford Road, 348  
313 Atwood Street  Wayne, 19087  
Pittsburg, 15213  
Marian Schneider  
Jennifer Clarke  Denise Lieberman  
Benjamin Geffen  Advancement Project  
Public Interest Law Center Philadelphia  1220 Street, N.W., Suite 850  
1709 Benjamin Franklin Parkway, 2nd Floor  Washington, 20005  
Philadelphia, 19103  

David Gersch  
Donna Patterson  
John Freedman  Patrick Schaffner Cawley  
Michael Rubin  Calvin Royer Koons  
Whitney Moore Office Attorney General  
Bassel Korkor  Strawberry Square, 15th Floor  
Dawn Yamane Hewett  Harrisburg,PA 17120  
Kate Dumouchel  
Arnold Porter LLP  Daniel Bernstein  
555 Twelfth Street, N.W.  Arnold P01ier LLP 399 Park Avenue  
Washington, 20004  New York, 10022  
Attorneys for Petitioners  Attorneys for Respondents