No matter your personal politics, both sides of the political spectrum agree that when a court efficiently reaches a common-sense and fair result, in accord with prevailing legal principles, the judicial system has succeeded. On March 14, Pennsylvania joined the ranks of Georgia, Indiana, Kansas and Tennessee, among others, in passing a voter-identification law that, if implemented, could require citizens voting in person on Election Day to present one of several specified forms of state-issued photo identification before casting a ballot. For Viviette Applewhite, a 93-year-old eligible voter unable to obtain the proper photo identification, the law would have precluded her from voting in an election for the first time in more than 50 years.
Whatever the motives behind enactment of the Pennsylvania voter ID law, for Applewhite and hundreds of thousands, possibly more, of similarly situated Pennsylvania voters, the outcome was the same — their fundamental right to vote would be impermissibly burdened just weeks before the upcoming election, effectively disenfranchising them. Applewhite, after overcoming the above obstacles, eventually obtained her voter ID after quite some time. However, for many similarly situated voters, this would have been impossible prior to the election — due to the lack of either time or means to travel to receive the identification. In ultimately enjoining implementation of the statute until after the general election, as described below, the Pennsylvania state courts displayed utmost common sense combined with a practical touch, holding that the commonwealth could not require voters to present identification on Election Day when a compressed implementation schedule almost guaranteed voter disenfranchisement.
On May 1, shortly after the law was enacted, Applewhite and various individuals and organizations applied for a preliminary injunction of the law. On August 15, the Commonwealth Court declined to issue the injunction, holding that plaintiffs did not establish that “disenfranchisement was immediate or inevitable.” Applewhite v. Commonwealth, 2012 WL 3332376, at *3 (Pa. Commw. Ct. August 15, 2012).
On September 18, the Pennsylvania Supreme Court, which set an expedited schedule in order to hear the appeal before Election Day drew too near, issued a per curiam decision. One of the three Democratic-elected judges joined with the three Republican-elected judges to achieve a majority, which vacated the order and returned the case to the Commonwealth Court. The Pennsylvania Supreme Court ordered the Commonwealth Court to further assess the availability of photo IDs and to enter a preliminary injunction if it found the law would disenfranchise any voter.
On October 2, the lower court, after a second evidentiary hearing, suspended implementation of the law for the present election cycle. In enjoining the law on remand, Judge Robert Simpson rejected the argument that the “offending activity” was the requirement of showing photo IDs. Instead, the “offending activity” was the state’s failure to ensure all voters had such identification prior to the election. Applewhite v. Commonwealth, 2012 WL 4497211, at *4 (Pa. Commw. Ct. October 2, 2012).
In addressing the highly contested issues of constitutionality and the fundamental right to vote, the Pennsylvania Supreme Court adopted a pragmatic approach, highlighting the impossibility of implementing the voter ID law before the general election. The Pennsylvania Supreme Court (and the Commonwealth Court on remand) thus focused on a practical appraisal of how the law would be implemented, including whether the state would have the proper measures in place to serve its citizens, and whether citizens would have sufficient time to obtain proper photo identification prior to the general election. In particular, after reviewing the record, the Pennsylvania Supreme Court focused on the state Legislature’s “ambitious effort [to] bring the new identification procedure into effect within a relatively short timeframe.” Applewhite v. Commonwealth, 2012 WL 4075899, at *4 (Pa. September 18, 2012). The court’s approach was consistent with decisions across the country, including, most recently, the U.S. Court of Appeals for the D.C. Circuit, which enjoined the South Carolina Voter ID Law, when implementing the law with less than four weeks to go until the general election would potentially create “chaos.” State of South Carolina v. U.S., No. Civ. 12-203 (D.D.C. October 10, 2012).
A number of state and federal courts have adopted similar approaches to strike down voter ID statutes when there was limited time to implement the law fairly and effectively. The Northern District of Georgia, for example, enjoined the Georgia Voter ID law until after an upcoming election because the state had insufficient time to educate its citizens about the new requirements prior to the election. Common Cause/Georgia v. Billups, 439 F. Supp. 2d 1294, 1351-52 (N.D. Ga. 2006). Thus, these courts addressed the practicality of implementation on a compressed schedule and stressed the fundamental importance of allowing voters time to obtain required identification.
The Pennsylvania voter identification case demonstrates that, even in these ideologically charged times, courts can achieve efficient, common-sense results on important issues of public interest. The Pennsylvania courts enjoined the voter ID law after a sober and pragmatic assessment of the facts and likely practical impact. This outcome should assure critics that partisanship does not always rule the day.
Sigmund S. Wissner-Gross is a partner at Brown Rudnick. Elnaz Zarrini and Matthew Hyner, associates at the firm, provided assistance with this piece. Brown Rudnick submitted an amici curiae brief on behalf of 12 Pennsylvania law professors to the Pennsylvania Supreme Court in Applewhite v. Commonwealth, the Pennsylvania voter ID case.