Challengers to Pennsylvania’s new voter ID law won a round in the state Supreme Court when the justices sent the case — via a per curiam order — back to the Commonwealth Court, vacating that court’s decision not to issue a preliminary injunction last month.
Having shifted the burden to the state, which must now prove that nobody will be disenfranchised by the law, the Supreme Court has given the Commonwealth Court a deadline of October 2 to decide the case.
The case before the six-justice court, which is currently split evenly between Republicans and Democrats, has been the subject of much speculation in both legal and political circles for its potential to impact the November 6 presidential election.
A common theme running through not only the majority’s per curiam opinion, but two dissents from Democratic justices, was concern for the timeline for the law’s implementation and how it is being implemented.
In its per curiam opinion, the majority focused on the short timeline between the implementation of law, passed in March, and the presidential election in November, as well as the stopgap measure introduced by the Corbett administration this summer that would furnish eligible voters with a compliant ID without the onerous process required to get an official PennDOT ID card.
The law, often referred to as Act 18, requires voters to present a valid photo ID before they will be allowed to cast a ballot.
“We find that the disconnect between what the law prescribes and how it is being implemented has created a number of conceptual difficulties in addressing the legal issues raised,” the majority said in its opinion.
The Supreme Court then remanded the case to Commonwealth Court Judge Robert Simpson to assess “the actual availability of the alternate identification cards on a developed record in light of the experience since the time the cards became available.”
Preparations for the basic ID program, which was announced in July, were still under way when Simpson issued his opinion the following month. Government officials testified that the Department of State’s voter ID program, which would provide identification cards that could only be used for voting through PennDOT offices, would allow people who can’t get official PennDOT IDs to vote — meaning that nobody would be disenfranchised.
The prediction that voters will have access to the ID necessary to cast a ballot by Election Day won’t do, the Supreme Court said, vacating the lower court’s judgment and remanding it for review in light of actual evidence of the ID program’s effect. Pennsylvania began issuing the Department of State IDs on August 27 and, by the third week of the program, it had given out 805, said Ron Ruman, the press secretary for the Department of State.
“We are confronted with an ambitious effort on the part of the General Assembly to bring the new identification procedure into effect within a relatively short timeframe and an implementation process which has by no means been seamless in light of the serious operational constraints faced by the executive branch. Given this state of affairs, we are not satisfied with a mere predictive judgment based primarily on the assurances of government officials,” the court said.
The decision was issued three business days after the Supreme Court held arguments in Philadelphia.
Witold “Vic” Walczak, legal director of the American Civil Liberties Union of Pennsylvania, which helped bring the suit, indicated in a telephone press conference Tuesday that the Commonwealth Court would hear the case next week, although no dates are confirmed. According to the Supreme Court’s order, any further appeals in the case will be expedited.
The two dissenting justices said there was no reason to send the case back to the Commonwealth Court.
“Forty-nine days before a presidential election, the question no longer is whether the commonwealth can constitutionally implement this law, but whether it has constitutionally implemented it,” Justice Debra M. Todd said in her dissenting statement.
Agreeing that the majority of the court applied the correct standard by which to review the lower court, the abuse of discretion standard, Todd said, “My application of the required standard leads me to the inescapable conclusion that the lower court indeed abused its discretion in failing to find that irreparable harm of constitutional magnitude — the disenfranchisement of a substantial number of eligible, qualified, registered voters, many of whom have been proudly voting for decades — was likely to occur based on the present structure, timing, and implementation of Act 18; in my assessment, the lower court should have granted a preliminary injunction. Therefore, I would reverse.”
Todd was critical of the majority for “abdicat[ing] its duty.”
“The eyes of the nation are upon us, and this court has chosen to punt rather than to act,” she said. “I will have no part of it.”
She was joined by another Democrat, Justice Seamus McCaffery, who agreed with her reasoning in his own dissenting statement.
He said, “The per curiam order merely gives the Commonwealth Court another opportunity to ‘predict’ whether the implementation of Act 18 would disenfranchise any otherwise qualified elector in the November election, based on anticipated evidence of the commonwealth’s latest efforts — unmoored from the actual text of Act 18 and without benefit of governing regulation — to issue photo ID cards to those who still lack them.
“However, a new prediction from the lower court will have no more legal significance before this court than the existing one, and I predict that, once again, we will be presented with a record that establishes that many thousands — indeed, ultimately uncountable numbers — of otherwise qualified electors will lack a photo ID for purposes of the upcoming election, and hence will be disenfranchised, despite the commonwealth’s last ditch efforts to loosen the standards established by Act 18.”
The majority opinion instructed the Commonwealth Court to assess whether the current procedures for issuing ID cards satisfies the law’s “requirement of liberal access” to IDs for voting. “If they do not, or 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 obliged to enter a preliminary injunction,” according to the order.
The Department of State sees the opinion as asking the Commonwealth Court to affirm its earlier finding, that a preliminary injunction isn’t necessary because the law won’t result in significant disenfranchisement, Ruman said.
However, David Gersch of the Washington, D.C., firm of Arnold & Porter, who argued on behalf of the plaintiffs in front of the Supreme Court, said that since the legal standard will be higher on remand, the state will likely fail to meet it.
“It’s a very tough standard,” he said during the telephone press conference with Walczak, explaining that Simpson will have to determine that no voters will be disenfranchised as a result of the law.
Governor Tom Corbett, in a statement released Tuesday evening, pronounced himself pleased with much of the court’s opinion.
“I am pleased that the state Supreme Court recognized that we have been working hard, and in good faith, to implement the voter ID law,” Corbett said. “My administration will continue to work hard to ensure that Pennsylvania voters know about this new law and help them obtain the proper identification to vote on Election Day.”