Commonwealth Court Judge Robert Simpson didn't rule from the bench Thursday, but he did give strong indications that he is planning to enjoin part of Pennsylvania's new voter ID law before November's election.
He cut in on each side's closing argument to seek guidance on what a reasonable injunction might look like. Simpson finished by suggesting that he might block certain language that would have the effect of requiring all provisional ballots to be counted. He worried aloud that using the provisional ballot section of the law might be fitting a "round peg into a square hole."
Some parts of the law may well have merit, Simpson said, and if he issues an injunction he'd like to find ground that is short of "all or nothing."
"I have to tell you," Simpson said to Alicia Hickok of Drinker Biddle & Reath, who gave the closing on behalf of the state, that one of the things he found surprising in the development of the record since he ruled on the case in August was the number of Department of State IDs that had been issued. "I expected more," he said of the number of cards he thought would have been issued since the program took effect August 27.
Just before the trial began this summer, in July, the Department of State announced that it would begin issuing identification cards that would be easier to get than the secure PennDOT cards that had previously been one of few cards to comply with the new law.
The program hadn't taken effect when Simpson made his ruling in mid-August, but he relied on testimony from government officials about the implementation of the new Department of State program.
When the state's Supreme Court returned the case after appeal to Simpson earlier this month, it said, "We are not satisfied with a mere predictive judgment based primarily on the assurances of government officials, even though we have no doubt they are proceeding in good faith."
The court, in a per curiam order, asked Simpson to evaluate the availability of the new cards in light of the evidence from the month it has now been in effect.
About 1,000 Department of State photo IDs have been issued, according to testimony from the two days of this week's hearing. Simpson said that he believes the number of voters in Pennsylvania who don't have an ID that complies with the law is about 1 percent, which is far more than 1,000 people, he said.
"I'd like to focus in on that," he told Hickok.