Over the last 19 years, I’ve seen the Pennsylvania Supreme Court suffer numerous black eyes, shoot itself in the foot, and often appear clueless when it comes to public perceptions of the court. Facing a politically-charged case like Pennsylvania’s voter ID law, many feared the court would wind up in a bad position. In my view, not only should the court’s handling of the case put those fears to rest, but it was an almost textbook example of how the court can handle controversial issues with fairness and a careful eye toward public confidence in the court system.
There was something to like for nearly everyone in the court’s September 18 per curiam order and its two dissents. Undoubtedly the true believers at both ends of the political spectrum were disappointed when the court sent the case back to Commonwealth Court Judge Robert E. Simpson for further review. But the fact is, the court was handed the legal equivalent of a lit stick of dynamite amidst the vitriol of a hotly-contested presidential election. And despite being a court split evenly along party lines, the justices managed to craft a decision that was careful, practical and fair to all the parties involved.
More importantly, in terms of the public’s confidence in the court, the justices demonstrated ample concern that every registered voter’s vote counts. Articulating and understanding the public’s concern has not always been a strength of the Pennsylvania Supreme Court. In this case, though, the court did a great job.
There are several common themes in the per curiam decision, as well as the impassioned and well-written dissents from Justices Debra Todd and Seamus McCaffery.
There is concern for the fundamental right to vote. There is concern over the implementation of the voter ID law, and the “ambitious” — as the majority calls it — timeline for implementing the law’s changes so close to a presidential election.
There is also disapproval for Simpson’s reliance on the assurance of government officials that the law will be implemented without disenfranchising voters. That was my biggest criticism of Simpson’s decision — I called it unquestioning faith in government actors — and the court was dead-on for calling that out.
And more importantly, the majority, and even McCaffery, set the stage for the eventual acceptance of the voting changes that the voter ID law heralds. By doing that, the court is not only demonstrating concern for the rights of individuals, but it’s also not giving the legislature the back of its hand, something many on the left would have welcomed.
The court is also laying out a path to easing the public’s acceptance of the voting changes. That’s something proponents might not appreciate in the short-term, but in the long-term, they and the rest of Pennsylvania will be better for it. The key passage to that effect for me is in McCaffery’s dissent.
While making clear that he thinks the rush to implement the voter ID law is purely political, he said: “I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots.”
When a critic of the law says that, what it does is it sets a tone for the future. McCaffery is essentially saying that although the circumstances under which the law came about and is being implemented shouldn’t trump anyone’s right to vote, the basic premise of the law — that you have to show a valid photo ID in order to vote — is something that’s going to happen down the road.
Between the per curiam, which is subtle and nuanced, and the two strong dissents, there is a sense of consensus from the court: a general disapproval for how the law has been implemented, as well as the suggestion that the tenets of the voter ID law are one day going to be the norm.
The fact that the court was able to walk the tightrope without appearing to be politically split is impressive.
So what did I mean when I said there was a little bit for everyone to like in the court’s decision? Well, the two dissents did a great job of articulating the anger that many felt in what they saw as a nakedly political move to aid Republican candidates (see the oft cited comment of Pennsylvania House Majority Leader Mike Turzai, R-Allegheny, about how the law will help Mitt Romney win Pennsylvania).
In the majority’s per curiam decision, and to a degree in McCaffery’s dissent, there is acknowledgement that the concept of voter ID laws are constitutionally valid.
The law isn’t the problem, the justices are saying. It’s how it’s being implemented, and the timeline being used to implement it.
Those are the biggest concerns that the law’s opponents have, and the court is addressing them.
So what happens now? It’s hard to say. My reading of the per curiam decision is that the court is telling Simpson if the government can’t guarantee that eligible voters won’t be disenfranchised, issue the injunction. It seems the court has asked Simpson to focus on a very narrow area, with a much higher bar for the government to clear.
Then again, I could be wrong. Some legal insiders have suggested to me that the court is sending Simpson a message: We don’t want to deal with this. You better issue the injunction.
I tend to think the court — much to the frustration of Todd and McCaffery — is just trying to be as thorough and fair as possible. While I can see the dissenters’ point that there is enough evidence now that voters will be disenfranchised by how the law is being implemented to issue the injunction, if sending the case back to the Commonwealth Court was what was needed to avoid a decision split along party lines, then I think that was the right move.
Given his questions during oral arguments, and the tone of the per curiam, I’m guessing that Justice Thomas Saylor wrote it. That’s a view shared by others I’ve spoken with, though some have suggested that he was aided in the opinion by either Justice Max Baer or Chief Justice Ronald D. Castille.
In light of that, if I had to guess, whether Simpson does it or the Supreme Court ultimately does it, the voter ID law won’t be in effect for the November election.
If that happens, and admittedly, that’s a lot of ifs, it will probably be for the best. The court will have seen to it that no one’s right to vote was denied while also respecting the General Assembly’s right to regulate the way voting takes place. In addition, the court will have braced the public for the changes that are to come.
I don’t think you can ask our high court to do better under the circumstances. •
Hank Grezlak is the editor-in-chief of The Legal Intelligencer. He may be contacted at 215-557-2486 or by email at firstname.lastname@example.org.