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.
Says the court’s order: “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.”
“They left very little room here for the trial judge to do anything but enjoin the ID requirement,” says Allen. “[Simpson] has to determine without relying just on assurances from the government that no voters will be disenfranchised, which is a tough determination to make.”
The burden of protecting voting rights has effectively been shifted away from voters and placed on the state, whose job it is to protect those rights to begin with. In my coverage of Pennsylvania’s voter ID law hearings, I’ve focused on burdens. During the initial Commonwealth Court hearing in Harrisburg, Pennsylvania, I reported how voters, particularly those of color and low income, expressed those burdens by testifying with their very lives. For the Supreme Court hearing in Philadelphia, I reported on how those burdens, and those lives, were overlooked. Today, the state must finally prove that their law has a zero tolerance for disenfranchisement.
The Supreme Court—which Walczak said was “sufficiently nervous” that all voters may not get the ID needed to vote—has already hedged toward telling Simpson to grant an injunction. Its order states that “the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate.”
But Governor Tom Corbett’s administration can change the law to ensure that Simpson will once again protect it. “If the state can convince the trial judge that they have changed procedures significantly since oral argument last week, then he might still deny the injunction,” says Allen. “But that would sure leave the judge pretty far out on a limb.”
The Supreme Court gave clear orders—if the law doesn’t fit, then you must acquit voters from having to follow it. Simpson doesn’t have the discretion to go above those instructions, but they are still subject to his interpretation, says Allen. Still, there will be little wiggle room for that. “The trial judge is the primary finder of facts and he has to examine whether [implementation of the law] meets the standard the law sets. The Supreme Court says, ‘We doubt it does,’ and the state candidly concedes it does not. So the [Supreme Court] is saying to the trial judge that if it’s not, then you must issue the injunction.”
The Supreme Court reviewed whether Simpson engaged in an “abuse of discretion” in his earlier ruling. It said that Simpson based his decision on a “predictive judgement” that the state would meet its legal obligation and protect every Pennsylvanian’s fundamental right to vote. So Simpson’s prejudiced ruling erred in favor of the state’s promise to do whatever needed done, but without the burden of proof that it could actually be done.
But as the civil rights lawyers pointed out yesterday, there has already been mad madcap around the state’s issuance of voter IDs. Many applicants for the free ID have been turned away because their voter registration records aren’t matching up with motor vehicle records&madsh;”there is a disconnect with the data,” said Advancement Project attorney Marian Schneider, who’s been helping people obtain ID.
“The reports from Pennsylvania already include long lines at the PennDOT offices, confusion and untrained workers giving out misinformation,” said Advancement Project co-director Judith Browne Dianis. This report from Ari Berman at The Nation supports as much.
Justice Todd stated in her dissent, “There is ample evidence of disarray in the record, and I would not allow chaos to beget chaos,” and agreed with her colleagues who wrote in the order that they are “not satisfied with a mere predictive judgment based primarily on the assurances of government officials.”
“I think this is quite right,” says Ohio State University Moritz College of Law professor Daniel Tokaji. “It shouldn’t be based on predictions of whether voters will or won’t get ID. The protection of the right to vote shouldn’t be a matter of guessing probabilities.”
Yet, grassroots organizations and civil rights groups still remain burdened with the guesswork of whether they should or shouldn’t continue mobilizing around helping people obtain ID. With the case in limbo at least another couple of weeks, they have little recourse but to stay on the voter ID course.
Whether the ruling should be considered a victory for voting rights is also up in the air. But it at least shows that someone in government takes seriously the burdens this law imposes on voters. “It gives me some faith in the judicial process,” says Allen of the ruling. Asked if the lower court’s early ruling did the same, she replied, “Not particularly.”
For more on court decisions concerning elections, read George Zornick on a defeat for campaign finance reform.