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From the Chief

Voter ID Decision Was One of Pa. Supreme Court's Finer Moments

September 25, 2012

Between the per curiam, which is subtle and nuanced, and the two strong dissents, there is a sense of consensus from the court: a general disapproval for how the law has been implemented, as well as the suggestion that the tenets of the voter ID law are one day going to be the norm.

The fact that the court was able to walk the tightrope without appearing to be politically split is impressive.

So what did I mean when I said there was a little bit for everyone to like in the court's decision? Well, the two dissents did a great job of articulating the anger that many felt in what they saw as a nakedly political move to aid Republican candidates (see the oft cited comment of Pennsylvania House Majority Leader Mike Turzai, R-Allegheny, about how the law will help Mitt Romney win Pennsylvania).

In the majority's per curiam decision, and to a degree in McCaffery's dissent, there is acknowledgement that the concept of voter ID laws are constitutionally valid.

The law isn't the problem, the justices are saying. It's how it's being implemented, and the timeline being used to implement it.

Those are the biggest concerns that the law's opponents have, and the court is addressing them.

So what happens now? It's hard to say. My reading of the per curiam decision is that the court is telling Simpson if the government can't guarantee that eligible voters won't be disenfranchised, issue the injunction. It seems the court has asked Simpson to focus on a very narrow area, with a much higher bar for the government to clear.

Then again, I could be wrong. Some legal insiders have suggested to me that the court is sending Simpson a message: We don't want to deal with this. You better issue the injunction.

I tend to think the court — much to the frustration of Todd and McCaffery — is just trying to be as thorough and fair as possible. While I can see the dissenters' point that there is enough evidence now that voters will be disenfranchised by how the law is being implemented to issue the injunction, if sending the case back to the Commonwealth Court was what was needed to avoid a decision split along party lines, then I think that was the right move.

Given his questions during oral arguments, and the tone of the per curiam, I'm guessing that Justice Thomas Saylor wrote it. That's a view shared by others I've spoken with, though some have suggested that he was aided in the opinion by either Justice Max Baer or Chief Justice Ronald D. Castille.

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