PA SUPREMES VACATE LOWER COURT APPROVAL OF PHOTO ID LAW, SEND IT BACK FOR REVIEW

The Pennsylvania Supreme Court, in a 4 to 2 decision this afternoon, has vacated a Commonwealth Court’s earlier ruling, which had denied a temporary injunction on the state GOP’s polling place Photo ID restriction law. Rather than issuing their own injunction, they have has sent the matter back to the lower court for review.

According to the high court’s 7-page order [PDF] issued today, if the lower court finds that the state is unable to implement “liberal access” to the supposedly free Photo IDs to be issued by the state, as dictated by the General Assembly’s requirements detailed in the statute itself, “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.”

We’ll try to unpack that for you in a moment. As well, there were two scathing dissents to today’s ruling, both highly critical of the majority for not ending the ongoing “chaos” immediately, instead of remanding it for another round to the lower court. But, in general, and depending on how Commonwealth Court Judge Robert Simpson, a Republican, reviews the case as ordered, this is may be good news for voters in the Keystone State.

“It’s certainly a very positive step in the right direction in that the court recognizes that the state does not make adequate provision for people to get the ID that they would need to vote,” said David Gersch, the lead lawyer for the plaintiffs challenging the law’s state constitutionality, according to CBS. “In addition, there is a practical problem with getting the ID to people in the short time available.”

The case, Applewhite v. Commonwealth of Pennsylvania [PDF], was originally filed in May by the ACLU, the PA League of Women Voters, and other civil rights organizations on behalf of 92-year old Viviette Applewhite and 10 other petitioners who were facing potential disenfranchisement under the new law, along with hundreds of thousands of other legally registered and otherwise eligible voters in the state. Before the trial even began, the Commonwealth admitted that they were unaware of a single instance of polling place impersonation — the only type of voter fraud that can possibly be deterred by their polling place Photo ID restrictions — in the history of the state.

Last Thursday, during their hearing in Philadelphia, the PA Supremes indicated they had some skepticism about the law, as we detailed here. The court was reviewing an appeal by the plaintiffs filed last week after the Commonwealth Court had stunned many of those following the case, including the plaintiffs who had predicted a “slam-dunk” win, by upholding the law last month and refusing to grant a preliminary injunction in advance of the November Presidential election.

But now Judge Simpson will have another crack at deciding the case, as the high court has punted it back to him. This time, however, he has been ordered by the high court to issue a preliminary injunction on the law if he cannot determine that the state is able to meet two very specific conditions…

‘Liberal access’

What appears to have happened here is this. The Republican majority in the General Assembly, when they wrote their law (“Act 18”), required that the Pennsylvania Dept. of Transportation (PennDOT) issue Photo ID cards, for free, to those who did not already have the type of Photo ID required to vote under the new law.

The IDs were to be issued, according to the statute, “to any registered elector who has made application therefor and has included with the completed application a statement signed by the elector declaring under oath or affirmation that the elector does not possess proof of identification . . . and requires proof of identification for voting purposes.”

While the effort required to obtain the ID for as many as 1.6 million registered voters believed to be lacking the type of ID required to vote under the law is not minimal — particularly since most of them have no drivers license to get to a PennDOT facility in the first place — at least the requirement to obtain the ID, once at PennDOT, was written into law to be fairly liberal. Only an “affirmation” by the voter that they were who they said they were, was needed.

But in the actual implementation of the law, as the Supreme Court noted, PennDOT “requires the applicant to present a birth certificate with a raised seal (or a document considered to be an equivalent), a social security card, and two forms of documentation showing current residency.”

The once “liberal access” to the IDs became onerous in the process, the court discovered.

Further complicating the matter — and, perhaps the reason that PennDOT had to add the additional requirements — is that the law, as written, orders that an ID meeting federal requirements for a “secure” ID be issued to such voters. To meet the federal requirements of a “secure” ID, proof of citizenship and residency, etc. must be presented.

In short, the Supreme Court has noticed that the state seems unable to meet the requirements of its own law. The statute orders that “secure” IDs be given to voters who lack otherwise-acceptable Photo ID, but the “liberal access” contemplated to receive those IDs would violate federal provisions for issuing a “secure” Photo ID card.

The state knew they blew it

At some point, after the Applewhite case had been filed, the state clearly realized they had a problem. In hopes of remedying it, they scrambled to invent a new form of non-secure ID that was to be used for voting purposes only. They now call it a Dept. of State ID or DOS ID. Those may be issued, the state determined, to those who do not have the underlying documentation needed to receive the secure PennDOT ID.

Act 18 itself does not contemplate the new DOS IDs and thus, Republican Justice Thomas G. Saylor grilled the state’s attorneys during the hearing as to whether they were actually implementing the law as written. They were forced to concede during the hearing that they were not.

As the majority decision notes today, “The Department of State has realized, and the Commonwealth parties have candidly conceded, that the Law is not being implemented according to its terms.”

Moreover, the majority found, that the integrity of the election itself may be compromised if all eligible voters are unable to obtain the ID necessary to vote under the terms of the law. Even the lower court judge, who downplayed the number of those who might be disenfranchised, pegged the percentage of registered voters who did not have acceptable Photo ID as of June 2012 at “somewhat more than 1% and significantly less than 9%” of the registered population.

By Judge Simpson’s own math then, as the appellants noted in their appeal to the Supreme Court, that means that “‘somewhat more than’ 82,000 and ‘significantly less than’ 738,000” registered voters stand to be disenfranchised or otherwise adversely affected by the law.

The state Supreme Court noted those concerns in their decision today.

“It is also clear to state officials 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,” they write. “Nevertheless, there is little disagreement with Appellants’ observation that the population involved includes members of some of the most vulnerable segments of our society (the elderly, disabled members of our community, and the financially disadvantaged).”

Back to the Commonwealth Court

“Given this state of affairs,” the majority wrote in their ruling, before vacating the lower court order and sending the case back for review, “we are not satisfied with a mere predictive judgment based primarily on the assurances of government officials, even though we have no doubt they are proceeding in good faith.”

Court watchers, and both of the dissenters on the court, predict more chaos in the month ahead, as the case is re-litigated in the lower court.

“The ruling means more drama, next month, with just weeks to go before the election,” notes CBS Radio News senior legal analyst Andrew Cohen. “The trial judge now has to respond to this and give attorneys for both sides a chance to make new arguments.”

The Supreme Court has ordered that Commonwealth Court Judge Simpson both confirm, through his hearings, that the law can be implemented as written, and that in his “predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth’s implementation of voter identification requirement for purposes of the upcoming election.”

That seems a tall order, one which must be met by the Commonwealth Court by October 2, 2012, just over 30 days before the November Presidential Election. If Simpson cannot confirm that the law is being implemented as written, and that, in his prediction, “no voter disenfranchisement” will occur because of it, he is now “obliged” by the state Supreme Court to halt the law, for now, by entering a preliminary injunction.

The dissenters

Justices Debra Todd and Seamus P. McCaffrey, both Democrats, offered their own blistering dissents to today’s ruling.

In her 3-page dissent [PDF], Todd argued that “the time for prediction is over.”:

Todd continued on with a blistering condemnation of both the majority decision and the lower court’s initial ruling, leading her “to the inescapable conclusion that the lower court indeed abused its discretion in failing to find that irreparable harm of constitutional magnitude — the disenfranchisement of a substantial number of eligible, qualified, registered voters, many of whom have been proudly voting for decades — was likely to occur based on the present structure, timing, and implementation of Act 18.”

“There is ample evidence of disarray in the record, and I would not allow chaos to beget chaos,” she wrote. “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. 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.”

Justice McCaffrey signed on to Todd’s dissent, and added his own 7-page dissent [PDF], which Todd also signed on to in turn.

McCaffrey writes [emphasis in original]:

“There is no doubt that the record, as it is, establishes the immediate and irreparable harm required for the injunction,” writes McCaffrey. “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. Indeed, the Commonwealth’s activities in this regard are a tacit admission that Act 18 is simply not ready for the prime time of the November 6, 2012 election.”

McCaffrey goes on to highlight the Commonwealth’s pre-trial stipulation that there is no in-person voter fraud known in the state of Pennsylvania, even though that is also the purported reason for the Republican law in the first place.

“Stipulations have legal consequences,” he says, “and the Commonwealth must live with those it entered. The purported evidence received by the legislature is thus of no moment, and the balance of potential harm unquestionably weighs heavily in favor of an injunction.”

Finally, he adds a last powerful testiment to his obligation, as a representative of the people, to protect the cherised and “sacred” right to vote in the state: “I was elected by the people of our Commonwealth, by Republicans, Democrats, Independents and others, as was every single Justice on this esteemed Court. I cannot now be a party to the potential disenfranchisement of even one otherwise qualified elector, including potentially many elderly and possibly disabled veterans who fought for the rights of every American to exercise their fundamental American right to vote.”

“I cannot in good conscience participate in a decision that so clearly has the effect of allowing politics to trump the solemn oath that I swore to uphold our Constitution. That Constitution has made the right to vote a right verging on the sacred, and that right should never be trampled by partisan politics.”