The Pennsylvania Supreme Court today vacated a lower-court decision upholding the state’s voter ID law, instructing Commonwealth Court Judge Robert Simpson to rehear the case, looking specifically at whether the state is doing enough to make sure that every eligible Pennsylvania voter has the right ID to cast a ballot. The supreme court, in a 4-2 decision, found a “disconnect between what the Law prescribes and how it is being implemented,” and noted 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.”
Two key sections of the court decision:
Overall, we are confronted with an ambitious effort on the part of the General Assembly to bring the new identification procedure into effect within a relatively short timeframe and an implementation process which has by no means been seamless in light of the serious operational constraints faced by the executive branch. Given this state of affairs, we are not satisfied with a mere predictive judgment based primarily on the assurances of government officials.
…We will return the matter to the Commonwealth Court to make a present an 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. 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.
The important takeaway from the ruling is that the supreme court shifted the burden of proof from the plaintiffs, who in lower court had to show that eligible voters would be disenfranchised by the law, to the state, who now has to prove that voters will not be disenfranchised. That’s why lawyers for the plaintiffs, which includes the ACLU and the Advancement Project, are optimistic about the chances of receiving a preliminary injunction when the Commonwealth Court rehears the case, possibly as soon as next week. A decision is mandated by October 2. “It’s certainly a victory in that it vacates the adverse decision from below,” said David Gersch, the lead lawyer for the plaintiffs. Gersch wanted an injunction against the law but said that today’s ruling has “gotten us partway there.” He said the state would have a tougher time making their case under the new standard mandated by the supreme court. Judge Simpson has “got to determine, without relying on assurance from the government, that no voters are being disenfranchised,” said Gersch. “That’s a very tough burden to meet.”
The case is now less about the constitutionality of voter ID laws and more about the difficulties of obtaining the right ID. Under the new voter ID law, acceptable forms of ID include a driver’s license, Department of Transportation (PennDOT) ID, passport, military ID or an ID issued by state or city governments, nursing homes or accredited colleges and universities, provided they have an expiration date on them (which many do not). To get a “free” voter ID from PennDOT you need two proofs of residency, along with a Social Security card and a birth certificate—which not everyone has and which costs money to obtain. Under public pressure, the state began issuing a voting-only “safety net” ID at the end of August that only requires a Social Security number and two proofs of residency.