The key question in the case challenging Pennsylvania's voter ID law is what level of scrutiny the court will apply, Commonwealth Court Judge Robert E. Simpson said at the start of hearings Wednesday.
Looking out from the bench to a full courtroom in Harrisburg, Simpson said the level of scrutiny could be quite robust or it could be deferential to the state legislature, which passed in March the controversial law requiring photo identification of registered voters.
"This is a very, very interesting challenge to Act 18," Simpson said.
Several public interest groups, including the ACLU, the Advancement Project and the Public Interest Center of Philadelphia, are seeking an injunction from the effect of the law on behalf of plaintiffs who argue they will not be able to vote in November's presidential election, despite their decades-long voting records, because they will not be able to produce the required paperwork in order to get an ID that accords with the law.
Pennsylvania's Department of State just announced a program that would provide voter IDs to people who can produce a Social Security number and two proofs of address. The program would be available by the end of August and operate until the beginning of November, Patrick Cawley, a lawyer from the Attorney General's Office, said during opening arguments Wednesday morning.
Allowing the promise of that program to bar an injunction would set a dangerous precedent, David Gersch argued. Gersch is from the Washington, D.C., law firm of Arnold & Porter, and is part of the legal team representing the plaintiffs.
There is a "line of cases that say you can't avoid injunction by saying, in the future, you'll make it better," he said.
"This is not a promise of future conduct," Cawley told the judge; it is a "product" that is currently being produced by a vendor and will be available in August.
"We are not here to re-engage in the legislative process," he said.
Before opening statements began, Simpson said he intended to conclude the hearings by next Friday and planned to have a decision by the week of Aug. 13.