Meet the Pontius Pilate of Voting Rights: Pennsylvania's Supreme Court

A four-member majority washes its hands of the voter ID conflict

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Justice Seamus McCaffery offered a dissenting opinion. (Reuters)

Yesterday I wrote about the strange ambivalence many Americans feel toward the right to vote. It's a good idea for the "right" people, but very dangerous in the "wrong" hands. Tuesday afternoon, the Supreme Court of Pennsylvania issued a decision in a closely watched voter ID case in that state (dissents here and here); and that decision, while nominally a victory for those challenging the law, is dangerously cavalier about a concrete danger to the upcoming election.

Simply put, the majority of the state Supreme Court held that the state of Pennsylvania has not followed the law -- not the part of it, anyway, that requires the state Department of Transportation to provide voters with a valid ID. In Pennsylvania, people who don't drive can go to a DOT driver's exam station and, for a fee, obtain an identification card, called a 1510(b) card. Until now, those cards have cost money, and required much the same kind of identification as a driver's license -- e.g., a birth certificate.

But under the voter ID law, a potential voter who lacks a photo ID can sign a sworn statement that he or she "does not possess proof of identification . . . and requires proof of identification for voting purposes." At that point, a 1510(b) card is to be issued free of charge. The problem is that the DOT has been refusing to adopt the new, looser requirements specified in the Voter ID law, arguing that the 1510(b) card can be used for security purposes like boarding an airplane. For that reason the DOT has continued to require documents such as a birth certificate, despite what the law says.

Given that it is late September, that would, one would think, be enough to justify an injunction against imposing the ID requirement on the November election. But four Justices of the six-member court decided instead to remand the case to the Commonwealth Court, which had upheld it on August 15, to take another look at whether it can implemented before November 5. The majority concedes that the population that may encounter difficulty voting in the fall "includes members of the most vulnerable members of our society (the elderly, disabled members of our community, and the financially disadvantaged)." This puzzling ruling reminds me of a word I learned years ago from an Italian politician: ponziopilatismo, the Pontius Pilate maneuver, washing one's hands and looking the other way.

The Commonwealth Court is directed to decide the case again by October 2. That means the state government must continue to plan for implementation in November, and so must both parties. The armies of volunteers in Pennsylvania spending their time to get ID for longtime voters facing disfranchisement must continue their work. And the chances of chaos and injustice at the polls grow higher with each passing day.

Two Justices of the Court dissented from the order, arguing that the Supreme Court should have simply enjoined the Act for the November election, giving the state government time to make it work properly for the next set of elections. Given that the state conceded at oral argument that it had no evidence of any voter fraud in Pennsylvania or elsewhere for the law to prevent, it seems silly even to consider rushing it into action, risking disfranchisement of those vulnerable voters to whom the majority fecklessly tips its hat.

In his dissent, Justice Seamus McCaffery broke through the unreality of the entire voter ID debate, by pointing out that, however we have interpreted the federal Constitution, the Pennsylvania Constitution makes voting a fundamental right:

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. . . . 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.

Why is it so hard for Americans to say words like the ones above? Once you hear them, they sound obvious.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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