A frustrating voter ID punt from the Pennsylvania Supremes

The Hon. Ron Castille, chief justice
of the Pennsylvania Supreme Court. Argh. This is not quite enough.

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, even though we have no doubt they are proceeding in good faith.

Thus, we will return the matter 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. 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.

Translation: "Judge Simpson, are you really sure no one is going to be deprived of the right to vote? Really?"

In a way, it's a good decision insofar as it requires the lower court to meet a high, evidence-based standard. The parties agreed that IDs were not readily available under the law as-written, because Homeland Security regulations prevent IDs from being too easily obtainable, and so the question is whether PennDOT (our drivers license bureau) is doing a decent job on the new voting-only ID. Judge Simpson has until Oct. 2 to so rule, but we already know the answer: It's a massive burden at best.

Two Democratic justices, Debra Todd and Seamus McCaffery, would have gone further and halted the law right now. Justice Todd:

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. Despite impending near-certain loss of voting rights, despite the Commonwealth's admitted inability thus far to fully implement Act 18 and its acceptance that, presently, 'the Law is not being implemented according to its terms,' and despite the majority's concession that the 'most judicious remedy' in such circumstances would be to grant an injunction, the majority nonetheless allows 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....

Like the majority, I am not 'satisfied with a mere predictive judgment based primarily on the assurances of government officials.' But, unlike the majority, I have heard enough about the Commonwealth's scramble to meet this law's requirements. There is ample evidence of disarray in the record, and I would not allow chaos to beget chaos. The stated underpinnings of Act 18 ' election integrity and voter confidence ' are undermined, not advanced, by this Court's chosen course. Seven weeks before an election, the voters are entitled to know the rules.

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 McCaffery:

[A] new prediction from the lower court will have no more legal significance before this Court than the existing one, and I predict that, once again, we will be presented with a record that establishes that many thousands ' indeed, ultimately uncountable numbers ' of otherwise qualified  electors will lack a Photo ID for purposes of the upcoming election, and hence will be disenfranchised, despite the Commonwealth's last ditch efforts to loosen the standards established by Act 18....

[T]he Commonwealth offered no evidence below of the existence of in-person voter fraud in this state or that in-person voter fraud is likely to occur in the upcoming election. The Commonwealth's interest in the implementation of this law, at least as concerns the November election, is somewhere from slight to symbolic...

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. While I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political. That has been made abundantly clear by the House Majority Leader. 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.

For now, the law remains in place.