"We are confronted with an ambitious effort on the part of the General Assembly to bring the new identification procedure into effect within a relatively short timeframe and an implementation process which has by no means been seamless in light of the serious operational constraints faced by the executive branch. Given this state of affairs, we are not satisfied with a mere predictive judgment based primarily on the assurances of government officials," the court said.
The decision was issued three business days after the Supreme Court held arguments in Philadelphia.
Witold "Vic" Walczak, legal director of the American Civil Liberties Union of Pennsylvania, which helped bring the suit, indicated in a telephone press conference Tuesday that the Commonwealth Court would hear the case next week, although no dates are confirmed. According to the Supreme Court's order, any further appeals in the case will be expedited.
The two dissenting justices said there was no reason to send the case back to the Commonwealth Court.
"Forty-nine days before a presidential election, the question no longer is whether the commonwealth can constitutionally implement this law, but whether it has constitutionally implemented it," Justice Debra M. Todd said in her dissenting statement.
Agreeing that the majority of the court applied the correct standard by which to review the lower court, the abuse of discretion standard, Todd said, "My application of the required standard leads me to the inescapable conclusion that the lower court indeed abused its discretion in failing to find that irreparable harm of constitutional magnitude the disenfranchisement of a substantial number of eligible, qualified, registered voters, many of whom have been proudly voting for decades was likely to occur based on the present structure, timing, and implementation of Act 18; in my assessment, the lower court should have granted a preliminary injunction. Therefore, I would reverse."
Todd was critical of the majority for "abdicat[ing] its duty."
"The eyes of the nation are upon us, and this court has chosen to punt rather than to act," she said. "I will have no part of it."
She was joined by another Democrat, Justice Seamus McCaffery, who agreed with her reasoning in his own dissenting statement.
He said, "The per curiam order merely gives the Commonwealth Court another opportunity to 'predict' whether the implementation of Act 18 would disenfranchise any otherwise qualified elector in the November election, based on anticipated evidence of the commonwealth's latest efforts unmoored from the actual text of Act 18 and without benefit of governing regulation to issue photo ID cards to those who still lack them.