The Political Freakshow

Court Decision Upholding Pennsylvania Voter ID Based Off of 1869 Case Warning of "Rogues," "Strumpets," and "Wandering Arabs"

As the Pennsylvania Supreme Court prepares to review the constitutionality of the state’s photo ID law, a University of Pittsburgh law professor flagged the flimsy and offensive precedent upon which the lower court relied when it upheld the law. In rejecting the plaintiffs’ argument that the law violates the state Constitution’s guarantee of “free and equal elections,” the court cited the 1869 case of Patterson v. Barlow, which, Professor Jessie Allen points out, serves as a “blatant example of the anti-democratic voter suppression alleged by plaintiffs in the current voter ID case.”:

The law approved in Patterson enacted a complicated set of registration procedures for Philadelphia (with its large working-class and immigrant populations) and a simpler procedure for the rest of the state… . The opinion justifies a tougher process for Philadelphia voters because “rogues and strumpets do not nightly traverse the deserted highways of the farmer. Low inns, restaurants, sailors’ boarding-houses and houses of ill fame do not abound in rural precincts, ready to pour out on election day their pestilent hordes.”

For good measure, the court explained that to overturn the tighter procedures for Philadelphia voters “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.”

If the language of the opinion isn’t offensive enough, the dissenting opinion makes clear that, even by the standards of the time, the law’s crippling impact on the right to vote should have been obvious. Amusingly, Judge Thompson’s dissent also reveals that the exaggerated fears of voter fraud have been with us for a very long time.

The professed, and possibly the real object of the law, was to prevent fraud in elections by voters. If this was the view of the framer of the act, I must in charity believe that it so engrossed his attention, as to lead to forgetfulness that among the barriers so ingeniously contrived to prevent it, the defeat of the duly qualified voters must inevitably occur. A remedy for a disease must be regarded as empirical, which would only eradicate it by producing a worse. If frauds were imminent by simulated voters, let penalties be provided for the rogues, and set honest and vigilant men to watch them, but let not the rights of honest voters be sacrificed to these apprehensions.

In her op-ed, Professor Allen points out that the Supreme Court could clearly distinguish the law at issue in the 1886 case from today’s photo ID law. But the “generalized and biased fears about fraudulent voting” could be applied equally to the present case, in which Pennsylvania has admitted there are “no investigations or prosecutions of in-person voter fraud in Pennsylvania,” and that they “do not have direct personal knowledge of any such investigations or prosecutions in other states.” Meanwhile, the law threatens to disfranchise as many as 750,000 state citizens, with new anecdotes of trouble obtaining a photo ID emerging every day.