Yesterday, the Pennsylvania Supreme Court decided to vacate a lower state court’s ruling that allowed Act 18, the photo voter ID law, to commence as planned. Problem being: the law as planned appears so burdensome that—putting voters aside for a moment—the state itself can’t comply with its own law. As stated in the Court’s order, “the Commonwealth parties have candidly conceded, that the Law is not being implemented according to its terms.”
The Supreme Court ordered per curiam—meaning unsigned by the six justices—that the Commonwealth Court must re-examine the implementation of certain provisions of the law. Commonwealth Court Judge Robert Simpson, who ruled in August in favor of the law, must decide if the way the state presently administers free photo voter ID cards to those who can’t get regular state-issued id cards is in compliance with the law—something the state already conceded in court that it doesn’t, and can’t for good reasons.
This means that while the state would like to grant photo ID cards to all who approach for voting, it can loosen its rules only so much without breaching federal and state security concerns. Which means that many people will still be burdened with producing specific documents—birth, marriage, adoption certificates, etc.—to get state-issued ID. From the voters’ perspective, this unresolved issue is rooted in the age-old conundrum best expressed by Mos Def: “Why do I need ID to get ID? If I had ID, I wouldn’t need ID.”
Still, the state has time to correct whatever legal problems it has in order to impress Simpson, who has until October 2 to issue a new decision.
Speaking with University of Pittsburgh law professor Jessie Allen, she said the ruling was “a classic piece of judicial craftsmanship and political compromise.” Bipartisanship at its finest, though the legislation itself enjoyed no such harmony—it was passed with all Republican votes. Still, two of the justices, Debra Todd and Seamus McCaffery, issued dissenting statements summarily, saying that the law should be blocked as soon as possible. Justice Todd said her colleagues were allowing “the Commonwealth to virtually ignore the election clock and try once again to defend its inexplicable need to rush this law into application by November 6, 2012.”
Justice McAffery, agreeing with Todd, suggested in his dissent that the rush was “purely political” and stated, “Where a fundamental constitutional right is at issue—arguably the fundamental right—an implementation of even a lesser burden on the exercise of that right, ten weeks before it is to be exercised, is simply unreasonable and constitutionally insupportable.”
But the important thing about the higher court’s ruling, as Pennsylvania ACLU legal director Vic Walczak told reporters yesterday, is that civil rights lawyers no longer have to show and prove that the law is burdensome. Instead, the state has to prove the law’s current implementation won’t lead to disenfranchisement of any voters. Meaning the numbers that have been flung around about whether 100,000 or 1 million voters don’t have ID are now hardly relevant—if one voter will be disenfranchised, then the law can’t stand for November.