The Commonwealth Court decision to strike down Pennsylvania’s law requiring voters to show photo ID at the polls makes the law significantly harder to defend on appeal, state Attorney General Kathleen Kane’s office said Tuesday.
Kane, a Democrat, issued a statement clarifying that the decision on how to proceed in the politically charged case rests with Gov. Tom Corbett, a Republican.
The governor’s press office referred all questions Tuesday to the Office of General Counsel, which declined to comment beyond the statement issued Jan. 17 by James D. Schultz, the general counsel of the commonwealth and a Corbett appointee. That statement said that his office is evaluating “whether post-trial motions are appropriate.”
Commonwealth Court Judge Bernard L. McGinley ruled last week that the voter ID law is unconstitutional. In order to seek review of McGinley’s decision, the administration has until next Monday to file a post-trial motion with the Commonwealth Court, which would likely hear arguments over the trial judge’s opinion as a panel.
“The decision to appeal Judge McGinley’s decision rests solely with the governor and secretary of the commonwealth,” according to the statement from Kane.
Following that decision, widely assumed to be a foregone conclusion, the Attorney General’s Office will evaluate the likelihood of success on the legal issues, Joe Peters, spokesman for the office, said Tuesday.
One of the biggest issues, he said, is that McGinley said the law is unconstitutional, which “creates a much more difficult legal hurdle going forward.” When Kane inherited the case after she took office last year, the law was presumed to be constitutional on its face, Peters said.
“At this juncture, the Commonwealth Court has deemed it unconstitutional,” he said, which makes it more complex to defend.
Asked if Kane was opening the possibility to bowing out of the case—her office has been co-counsel with the Office of General Counsel and the law firm of Drinker Biddle & Reath—Peters said the office is taking it “one step at a time.” Right now, they are waiting for Corbett to decide on a course of action.
“He’s the client,” Peters said.
Kane made headlines last summer when she declined to defend the state’s ban on same-sex marriage in the spate of challenges to the law that followed the U.S. Supreme Court’s June opinion in United States v. Windsor that struck down the federal Defense of Marriage Act—Pennsylvania’s law is often called “mini-DOMA.”
Kane announced in July that Pennsylvania’s law, which tracks the language of the federal law, is unconstitutional, which touched off a disagreement between her office and the Office of General Counsel.
Speaking of the political currents Kane is navigating in the voter ID case, University of Pittsburgh School of Law professor Jessie Allen said, “This is a case that has political overtones and undertones.” There have been “loud clanging cymbals from square one for everyone,” she said.
The law, called Act 18, was passed by the Republican-led legislature in the run-up to the last presidential election. Laws requiring voters to show photo ID before voting are largely considered to be a conservative maneuver to screen out elderly and low-income voters, who typically skew Democratic.
A trial judge’s finding that the law isn’t able to work constitutionally might offer a politically neutral reason to a politician, whose job is to defend the laws of the state, to leave the case, Allen said.
“Honestly,” Allen said, “the trial changed the picture.” The judge issued findings of fact saying that the law can’t be implemented in a way that won’t disenfranchise voters.
McGinley said in his lengthy opinion issued Jan. 17, “Reviewing the voter ID law on its face, it does not pass constitutional muster because there is no legal, non-burdensome provision of a compliant photo ID to all qualified electors.”
Under the constitution, the state can’t pass a law that requires voters to show photo identification without also including in the law a mechanism for the state to provide those IDs to voters. Pennsylvania’s voter ID law doesn’t do that, McGinley said.
The findings of fact from the trial judge, which will get deference from the appellate court, will make it harder for the state, Allen said.
She noted that when the state Supreme Court ruled on the issue in September 2012 after the first trial challenging the law, it was concerned that the law couldn’t be implemented constitutionally in time for the November presidential election.
“There’s not enough time to make this thing work,” she paraphrased of the Supreme Court’s opinion in 2012.
Now, the second trial has heard the facts and found that “it’s not going to work,” she said.
That puts a heavy burden of persuasion on the state, Allen said.