As it was pointed out in a recent federal court decision in Hawaii, which upheld the state's open primary system, the court cannot base its decision on the assumption that something is happening. There must be clear evidence that the burden on the state, an organization, or a person is real. In the case of the Hawaii decision, the Democratic Party of Hawaii could not present sufficient evidence that its First Amendment right of association was severely burdened by non-members being able to participate in its primary elections.

In Pennsylvania, the state's voter ID law was struck down by a state court on Friday, January 17. In his ruling, Pennsylvania Commonweath Court Judge Bernard McGinley said that the purpose of new voting laws is to "assure a free and fair election; the Voter ID Law does not further this goal."

substantial threat

The state could not provide sufficient evidence that there was a burden on the electoral process that the new law alleviated. Further, evidence was not presented that the new law would enhance the integrity or the fairness of elections in Pennsylvania. However, the petitioners, the court ruled, were successful in presenting evidence that the voting rights of a significant portion of the electorate was burdened by the voter ID law.

After the U.S. Department of Justice (DOJ) rejected the Texas Voter ID law, the state similarly failed in its appeal before a U.S. District Court to provide evidence that in-person voter fraud was actually happening in Texas. Many states cannot provide hard evidence that the problem exists, only the possibility that it could happen. This is not sufficient in court, especially when there is evidence that the laws do severely burden the voting rights of citizens.

Texas rushed to implement the law after the Supreme Court struck down Section 4 of the Voting Rights Act of 1965 -- the formula for preclearance -- which required certain states and electoral districts with a history of voter discrimination, like Texas, to submit any changes to their election laws to the DOJ for approval.

The legal challenge in Pennsylvania was "filed by the American Civil Liberties Union with 93-year-old Viviette Applewhite as the lead plaintiff." She is one of many voters who would not be able to obtain the specific ID she would need under the voter ID law to vote in elections. The state is expected to appeal the ruling to the Pennsylvania Supreme Court.