In a surprise move at the close of a two-week trial, lawyers representing the commonwealth of Pennsylvania said the state is willing to extend the injunction of the voter ID law through the coming November election.
At the end of her closing argument, Alicia Hickok, a partner at Drinker Biddle & Reath, told Commonwealth Court Judge Bernard McGinley that, considering the pressure and tension during the first challenge to the law as it bounced between the trial and appeals courts last year, the state would agree to extend the injunction in order to allow the court time to fully consider the case.
She characterized Commonwealth Court Judge Robert Simpson's injunction last fall as a "soft rollout," noting that the judge presiding over last year's trial challenging the law that would require voters to show photo identification before casting a ballot had not enjoined the state from advertising the provision of Act 18 nor did he stop poll workers from asking to see voters' ID cards.
"He put a soft rollout in place … and, your honor … the respondents would be willing to extend that through this November's election in order to give you the opportunity to deliberate upon these things without having a time demand hanging over you," Hickok said.
Challengers to the law were surprised by the move, said Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia, immediately after the court adjourned.
"We still have to work that out with the court, as to exactly what the scope of the injunction will be," she said.
Much of Hickok's hourlong closing emphasized the burden that is required to prove that a law is unconstitutional — challengers have alleged that Act 18 violates the Pennsylvania Constitution both on its face and as it is applied — and she argued that the challengers have fallen far short.
"A statute is to be found unconstitutional only if it clearly, palpably, and plainly violates the constitution," she said. "Act 18 does not fit into that category."
Hickok prefaced that statement by telling McGinley that the Commonwealth Court has been instructed that way by the Supreme Court "time and time again."
She later cited specific case law, including a voting-rights case heard by an en banc panel of the Commonwealth Court in 2000 that included McGinley. The case, Mixon v. Commonwealth, was brought by several petitioners contesting the state's regulations surrounding the voting rights of felons.
Quoting from a citation to a 1914 Pennsylvania Supreme Court decision, Winston v. Moore, in Mixon, Hickok said:
"The power to regulate elections is legislative, and has always been exercised by the lawmaking branch of the government. Errors of judgment in the execution of the legislative power, or mistaken views as to the policy of the law, or the wisdom of the regulations, do not furnish grounds for declaring an election law invalid unless there is a plain violation of some constitutional requirement. Legislation may be enacted which regulates the exercise of the elective franchise, and does not amount to a denial of the franchise itself."
She added, "And your honor will recall that when you sat on the Mixon en banc panel that you thought that Mixon did not go far enough and you would have gone further."
The Mixon court had held that incarcerated felons are not eligible to be absentee voters, but that the state's restriction that released felons must wait five years to register to vote is unconstitutional.
McGinley wrote a dissent to the second part, saying, "This legislative prohibition requires the felon to adhere to the rules of society for five years before he or she can register to vote. Because our federal and state courts have previously determined that the legislature has the statutory authority to totally deny a convicted felon the free exercise of the right to suffrage, Section 501 of the Voter Registration Act does not violate Article VII, Section 1 of the Pennsylvania Constitution."
In the Harrisburg courtroom Thursday, though, Clarke argued that regardless of the standard of review — strict scrutiny, middle tier or rational basis — the burden imposed by Act 18 can't be justified.
By anyone's count, she argued, the number of people in the state who don't have an ID that complies with the law number in the hundreds of thousands. Clarke then detailed the various analyses offered by experts and state officials during the course of the trial — most of which were fiercely contested by the state.
Also, Clarke argued, the PennDOT offices where people often have to go to get a photo ID are few and far between, and nine Pennsylvania counties don't even have an office, which means that they are difficult to get to, especially for people who don't drive.
The list of IDs that the law allows is the "strictest, narrowest list in the country," Clarke said, noting that it requires the cards to have expiration dates and excludes ID cards issued by school districts, municipalities and employers.
Those things, taken with the fact that Act 18 has no "safety net" like other states have that allow people to vote by absentee ballot or sign an affidavit as to their identity at the polls, point to the law being unconstitutional on its face.
"These problems are fundamental and foundational," Clarke said.
McGinley had issued a scheduling order late Wednesday pushing back his deadline for resolving motions to continue or modify the preliminary injunction to August 19. It had been set for August 9. But it may be made moot in light of the state's willingness to extend the injunction through the November election.
He indicated in the same order that some decisions in the case may be made en banc, saying, "Post-trial motions may be decided by a panel of the court."
Saranac Hale Spencer can be contacted at 215-557-2449 or firstname.lastname@example.org. Follow her on Twitter @SSpencerTLI. •