Not unlike this summer’s trial, the hearing on Pennsylvania’s voter ID law this week presents Commonwealth Court Judge Robert Simpson with a fast-developing set of facts.
Those facts are developing so fast that Simpson was informed that the Department of State just Monday night has changed the application process for securing a compliant identification card. So, similar to answers from government officials at the trial, the future tense pervaded the answers they gave about the program as it will be implemented in the weeks before November’s election.
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.
And state officials were continuing to craft a voter ID program even on the eve of Tuesday’s hearing, according to testimony heard by the Commonwealth Court.
The case is back before the Commonwealth Court after Simpson’s initial ruling was appealed to the state Supreme Court. The justices remanded the case to Simpson with instructions “to make a present assessment of the actual availability of the alternate identification cards on a developed record in light of the experience since the time the cards became available.”
The easier-to-get ID cards are produced by PennDOT through a program run by Pennsylvania’s Department of State. They became available on August 27, about a week after Simpson issued his opinion.
The Supreme Court decision, which came down last week, was critical of the process for issuing the Department of State IDs because it required voters to go through the PennDOT process first.
“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 court’s per curiam order said.
In response to that criticism, the Department of State changed the application process the night before the hearing in front of Simpson on Tuesday.
“This has been an evolutionary process,” Kurt Myers, deputy secretary for safety administration in Pennsylvania’s Department of Transportation, testified in court. He was questioned by David Gersch, of the Washington, D.C., firm Arnold & Porter, who has worked on the case with the ACLU and other advocacy groups.
The new application for the Department of State ID doesn’t include the paragraph that had been at the top of the form explaining that the card would be issued only after the voter had exhausted his or her opportunities for a PennDOT ID, which requires, among other things, a raised-seal birth certificate.
It also eliminated the requirement for two proofs of residency and a gender selection, Myers testified.
Gersch questioned him for about an hour and a half about the new form, which was emailed this morning to PennDOT’s 71 locations around the state, and about the process that PennDOT had used to issue the IDs from August 27 until Monday.
Patrick Cawley of the Pennsylvania Attorney General’s Office questioned Myers for about 15 minutes.
Simpson — who told the court when he opened the trial in July, “think of me as the Supreme Court’s hearing officer … I’m sort of a way station” — looked subdued as he presided over the hearing on Tuesday.
He chuckled, though, when he caught Witold “Vic” Walczak yawning. Walczak is the legal director of the ACLU of Pennsylvania.
“You can’t be yawning,” Simpson said from the bench, after Myers had finished explaining part of PennDOT’s production process to Gersch.
“It’s as interesting for me as it is for you,” Simpson said, to laughter from the two dozen people in the gallery at the Harrisburg courthouse.
At the start of Tuesday’s hearing, Simpson read from the Supreme Court’s order remanding the case to him with the mandate that he is to consider how effective the Department of State’s ID program is in supplying voters with the ID necessary to vote.
“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,” Simpson read from the order, stressing the word “upcoming.”
November 6 is Election Day, and the Supreme Court is requiring Simpson to issue an opinion by October 2 in anticipation of a request for review of the new decision.
“The sooner the better for everyone involved,” Simpson said, explaining that he plans to issue his opinion soon.
The hearing will likely continue on Thursday, when Simpson could hear two sets of closing arguments — both Alfred Putnam Jr. of Drinker Biddle & Reath in Philadelphia, who is working with the state’s lawyers, and Cawley are likely to give closings.
“This has come back to us in an unusual posture,” Simpson said, “so I’m going to be as flexible as I can.”