PENNSYLVANIA RECORD

In what is being viewed as a partial victory for opponents of the state’s controversial

Voter ID law, the Pennsylvania Supreme Court on Tuesday vacated a lower court’s ruling that denied a request to issue a temporary injunction preventing the law from taking effect.

In a seven-page order released Sept. 18, the high court directed that the case be transferred back to the Commonwealth Court judge whose decision to not temporarily enjoin the law led to the appeal that was the basis for the justices’ review.

The order follows a Sept. 13 hearing in Philadelphia during which the high court listened to oral arguments by those opposing and supporting the law, which requires registered voters to show photo identification at polling places.

The law, which was pushed by a GOP majority in the state House of Representatives, and subsequently signed by Republican Gov. Tom Corbett, drew criticism from civil rights advocates who claimed it would disproportionately disenfranchise certain voters, such as the poor, elderly and minorities – a voting bloc that tends to vote Democratic.

The argument was that that segment of the population tends to lack a government-issued photo ID, and might have trouble getting one due to the requirements such as having a birth certificate and other hard-to-come-by items.

Soon after the law was passed the ACLU of Pennsylvania and other civil rights attorneys filed suit over the controversial measure on behalf of a handful of plaintiffs who alleged they would endure hardship under the law.

Commonwealth Court Judge Robert Simpson refused to grant a preliminary injunction in that case, ruling that the law appears constitutional on its face.

It was that decision that was appealed by the plaintiff’s to the state Supreme Court.

In their Sept. 18 order, the justices singled out the law’s provision that the Pennsylvania Department of Transportation provide photo identification for voting purposes to those who lack it as a reason why the matter should be sent back to the lower court.

This provision of the law establishes a policy of “liberal access” to obtaining identification cards, the ruling states.

The problem is that in reality, access to obtaining the proper ID hasn’t been as easy as it was designed to be under the law, the justices determined.

“As implementation of the Law has proceeded, PennDOT – apparently for good reason – has refused to allow such liberal access,” the high court’s ruling states. “Instead, the Department continues to vet applicants for … cards through an identification process that Commonwealth officials appear to acknowledge is a rigorous one.”

Those seeking a PennDOT-issued ID card must show a birth certificate, a Social Security card and two forms of documentation displaying a current residence.

The reason for this is that the federal government has specific regulations on what constitutes a so-called “secure form of identification,” which could be used to carry out activities such as boarding an aircraft.

As an alternative to a PennDOT-issued ID, the Pennsylvania Department of State, which oversees elections, began issuing ID cards strictly to be used for voting purposes.

But this decision came after the Voter ID law’s passage, and isn’t contained within the actual law itself, the justices had noted during their session last week.

“The Department of State has realized, and the Commonwealth parties have candidly conceded, that the Law is not being implemented according to its terms,” the high court’s ruling states. “Furthermore, both state agencies involved appreciate that some registered voters have been and will be unable to comply with the requirements maintained by PennDOT to obtain an identification card under Section 1510(b).

“It is also clear to state officials,” the ruling continues, “that, if the Law is enforced in a manner that prevents qualified and eligible electors from voting, the integrity of the upcoming General Election will be impaired.”

The justices wrote that upon review, they found there to be a disconnect between what the law prescribes and how it is being implemented, something that has created a number of “conceptual difficulties” in addressing the legal issues that have been raised.

In the end, the high court ruled that it decided to send the matter back to the Commonwealth Court “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.

“In this regard, the court is to consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards,” the ruling states. “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.”

Two justices, Debra Todd and Seamus McCaffery, filed dissenting opinions.

In her dissent, Justice Todd wrote that the high court’s sending the matter back to Commonwealth Court is done so the lower court can again attempt to predict whether the commonwealth can implement the new law without disenfranchising a substantial number of voters come November.

“In my view, the time for prediction is over,” Todd wrote. “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.

“By remanding to the Commonwealth Court, at this late date, and at this most critical civic moment, in my view, this Court abdicates its duty to emphatically decide a legal controversy vitally important to the citizens of this Commonwealth,” Todd’s dissent continues. “The eyes of the nation are upon us, and this Court has chosen to punt rather than to act. I will have no part of it.”

McCaffery agreed with Todd, writing in his dissent that he believes a preliminary injunction should be granted through the Nov. 6 election.

“There is no doubt that the record, as it is, establishes the immediate and irreparable harm required for injunction,” McCaffery wrote.