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.
Of the provisional ballot section of Act 18, Simpson said, “It’s not the smoothest part of Act 18 by any stretch of the imagination.” It’s meant to accommodate people who have left their IDs at home, Simpson said. Using it to accommodate people who are unable to get IDs might stretch it to apply more broadly than it was intended, he said.
He asked both parties to file their suggestions for an injunction today.
When Pennsylvania’s Supreme Court remanded the case to Simpson, who presided over this summer’s trial, it said that he must give his decision by October 2, so that there will be time for high court review in advance of the general election, set for November 6.
On Tuesday, the first day of the hearing, Simpson said that he planned to issue his opinion as soon as possible.
“The sooner the better for everyone involved,” Simpson said.
As lawyers for the ACLU, which brought the case along with other citizens’ groups, and lawyers for the state government sparred over whether some late-coming witnesses for the petitioners should be allowed to testify, Simpson intervened.
“It’s time for a pep talk to counsel,” he said, noting that this is a high-profile case and emotions are naturally running high. He reminded them that they should stay calm and “stand tall.”
“I’m concerned by the conduct of counsel here on both sides,” Simpson said.
Ultimately, the petitioners were able to call half-a-dozen people who had encountered problems when they tried to get an ID — either a secure photo identification card from PennDOT or a recently instituted photo ID card through the Department of State — and almost as many witnesses who have been helping people get IDs that comply with the new law. Three of those witnesses were out-of-state employees of the Service Employees International Union, which has deployed workers to Pennsylvania in order to observe the process for issuing IDs at the state’s 71 PennDOT locations, according to testimony.
The thrust of the petitioners’ line of questioning illustrated that it is difficult and time-consuming for people to get IDs and that PennDOT employees are poorly informed about what is required to issue the cards, what types of cards are appropriate and available, and when they are supposed to charge a fee for issuing IDs.
Attorneys for the state stressed in their cross-examinations that each person who sought an ID was eventually able to get one.
The law, called Act 18, was passed in March and requires voters to show an approved photo ID before casting a ballot. The most common form of ID was expected to be the secure ID issued by Pennsylvania’s Department of Transportation, but the Department of State announced in July that it would institute a new program to make compliant IDs more readily available to voters who don’t have the paperwork — including a raised-seal birth certificate — to get the secure PennDOT ID. The Department of State ID can only be used for voting and has less stringent requirements.
On the eve of this week’s hearing, Monday night, the government changed the application process for the Department of State ID to make it less onerous, answering concerns raised by the state Supreme Court in its per curiam decision on the first appeal of the case issued earlier this month.
Concerns over implementation of the law and the tight timeline before November’s election were cited by the state Supreme Court when it remanded the case to Simpson for a new hearing.
“Contrary to the law’s liberal access requirement, applicants for a Department of State identification card may be initially vetted through the rigorous application process for a secure PennDOT identification card before being considered for a Department of State card, the latter of which is considered to be only a ‘safety net,’” the Supreme Court’s order said.