Voters won’t have to show photo ID before casting a ballot in November, Commonwealth Court Judge Robert Simpson ruled Tuesday, blocking that requirement in Pennsylvania’s new voter ID law from taking effect in November.
On remand from the Pennsylvania Supreme Court, Simpson echoed the high court’s language, saying in his opinion: “I am not still convinced in my predictive judgment that there will be no voter disenfranchisement arising out of the commonwealth’s implementation of a voter identification requirement for the purposes of the upcoming election.”
He issued a narrow injunction at the deadline he was given by the Supreme Court, which could yet review for a second time the nationally watched case before the November 6 general election.
Lawyers representing the state hadn’t decided by press time if they would appeal.
Poll workers may ask for photo ID from voters, but they must allow all qualified electors to cast a ballot regardless of whether or not they can show ID, Simpson ruled.
“I will not restrain election officials from asking for photo ID at the polls; rather, I will enjoin enforcement of those parts of Act 18 which directly result in disenfranchisement,” Simpson said in his 18-page opinion.
Simpson declined to grant an injunction after presiding over a two-week trial this summer — he was convinced by testimony from state officials that plans for a voter ID requiring much less onerous paperwork than a secure PennDOT ID would furnish voters with compliant IDs in time for the upcoming election. He issued that opinion on August 15 and the new IDs first became available on August 27.
When Simpson’s decision was appealed to the Supreme Court, a four-justice majority issued a per curiam opinion that sent the case back to Simpson for rehearing with specific instructions to evaluate the performance of the new ID program since it was implemented.
“If the Commonwealth Court is not still convinced in its predictive judgment that there will be no voter disenfranchisement arising out of the commonwealth’s implementation of a voter identification requirement for purposes of the upcoming election, that court is obligated to enter a preliminary injunction,” the state Supreme Court’s per curiam order said.
The high court also stressed the importance of ensuring that the IDs are actually available to all voters.
In order to satisfy the Supreme Court’s direction that there should be “liberal access” to the means to vote, the state made its new ID even easier to get on the eve of Simpson’s rehearing.
Recognizing the similarity of the situation to the trial this summer, during which the new ID was proposed but not yet available, Simpson decided not to rely on promises about an untested program.
“The evidence is similar in kind to the prospective ‘assurances of government officials’ testimony which the Supreme Court found an unsatisfactory basis for a ‘predictive judgment,’” Simpson said, quoting from the high court’s September opinion.
He also said that the lower threshold for getting an ID would only be in place for five weeks before the presidential election, which isn’t enough time, and that, by admission of government officials, any new program is likely to have unforeseen problems.
In his earlier opinion, Simpson estimated that about 1 percent of Pennsylvania voters didn’t have the right kind of ID and the new ID program could fill the gap.
“I expected more photo IDs to have been issued by this time,” Simpson said in Tuesday’s opinion.
About 9,500 PennDOT IDs for voting had been issued since March, when the law was passed, and about 1,300 of the new voter IDs have been issued since they became available in August, according to the opinion.
The result of Simpson’s injunction means the law’s implementation will be the same as it was during the primary elections earlier this year, during which voters could be asked for ID, but didn’t need to show one in order to vote.
Simpson quoted from Pennsylvania’s election code, which lists several circumstances under which provisional ballots should not be counted. The voter ID law, called Act 18, added two such circumstances — according to the law, if a voter shows up to the polls without photo ID, he can cast a provisional ballot, but he must either show a compliant ID within six days of the election or submit an affidavit that he is indigent and cannot get an ID within six days of the election.
Those two provisions of the law are enjoined from taking effect for the November election, according to the opinion.
Simpson rejected the petitioners’ request to enjoin the state from continuing its advertising campaign alerting voters to the new ID requirements.
The petitioners had argued that voters would be confused about what they were actually required to show at the polls if advertising persisted in saying they’d have to have photo IDs.
The state is currently reviewing its ad campaign, said Ron Ruman, of the Department of State. He said that they are focusing on the radio and television spots that are airing because those have language indicating that the IDs will be “required” in November, whereas the billboards and transit signs are likely to stand.
“If we can’t get cooperation” from the state on amendments to the ad campaign, then the petitioners might file an appeal, said Witold “Vic” Walczak, the legal director for the American Civil Liberties Union in Pennsylvania, during a telephone press conference Tuesday.
David Gersch of Arnold & Porter in Washington, D.C., who represented petitioners challenging the law, was optimistic that the state would comply.
“We will continue our education and outreach efforts, as directed by the judge in his order, to let Pennsylvanians know the voter ID law is still on track to be fully implemented for future elections, and we urge all registered voters to make sure they have acceptable ID,” Secretary of State Carol Aichele said in a statement issued Tuesday.
Although there was no decision from the state on an appeal Tuesday, the tenor of the statements from officials suggested that they will comply with the injunction.
“While we believe we have made it possible for every registered voter who needs voter identification to obtain one, we’ll continue our efforts for the next election and all future elections, to make sure every registered voter has the proper identification in an effort to preserve the integrity of our voting process in Pennsylvania,” Governor Tom Corbett said in a statement issued with Aichele’s.
“I very much doubt there will be an appeal,” said Gregory Harvey, chair of the public election law practice at Montgomery McCracken Walker & Rhoads in Philadelphia.
“Judge Simpson’s resolution of it will be regarded as entirely consistent” with the Supreme Court’s mandate, Harvey said.
David Kairys, a professor at Temple University’s Beasley School of Law, speculated that the Corbett administration might decide to “save” the three Republicans on the Supreme Court bench from having to rule on the case.
“Right now, the Republican majority can say it stood up for both sides,” he said, citing the per curiam order that remanded the case to Simpson.
Lawyers for the petitioners, led by the American Civil Liberties Union, said Tuesday that they plan to carry on their challenge to the law after November.
Gersch conceded during arguments in front of the state Supreme Court in September that, in theory, a voter ID law isn’t necessarily unconstitutional.
“The devil is in the details and those details will be litigated after the election,” Walczak said Tuesday. He and the legal team for the petitioners called the injunction a “big win for voters in Pennsylvania.”