In Pennsylvania, Finally, a Sensible Voting Rights Ruling

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A Republican judge changes his mind, because he has to.

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Keith Srakocic/Associated Press

Pennsylvania Commonwealth Court Judge Robert E. Simpson, Jr. finally got the message. Six weeks after he issued an atrocious ruling upholding his state's new voter identification law, and just a few weeks after the state supreme court told him to go back and try again, the trial judge came up with a sensible decision Tuesday that will greatly reduce the risk this election season of disenfranchising hundreds of thousands of registered Pennsylvania voters who don't drive and who haven't otherwise ever needed a state-issued photo ID.

These people, these poor and elderly people, these minorities and students, these ill and infirm residents, no longer have to travel to state offices, and wait in long lines, to procure new photo identification cards so that their votes will count this election year. Instead, they can offer election officials at polling places what they have been able and willing to offer in years past -- other forms of identification, good and valid forms of identification, which prove that they are who they say they are.

Judge Simpson's injunction precludes election officials from requiring registered voters to have and to show the new state photo identification card in order to get access to a regular ballot. It acknowledges that voter disenfranchisement was occurring, and would have continued to occur, had the restrictive law been enforced as written this election season; that all the state's horses, and all the state's men, weren't going to be able to get all those registered voters the right identification cards in time for the November contest.

No, Judge Simpson's ruling did not strike down the new state law. In that sense, his 18-page order is a disappointment to voting rights advocates who believe that the measure, on its face, illegally burdens voters. Nor does the decision mean the end of the fight. Republican officials Tuesday afternoon made it clear that they still are willing to endorse this odious law, still willing to pitch the patently baseless idea that it's not just an ALEC-infused partisan effort designed to make it harder for certain kinds of registered voters, and only those kinds, to vote.

But this is no time for foes of voter suppression to allow the pursuit of perfection to interfere with the embrace of the reasonable. Think of the ruling today as you would a successful emergency surgery. Pennsylvania just bought itself some time to fully litigate the effects of this law without the tick-tock pressure of a looming national election. The law ultimately may survive, or not, but at least it won't be crammed down the throats of voters and the courts, as it was going to be until the Pennsylvania Supreme Court stepped in a few weeks ago.

Has Judge Simpson seen the light? Probably not. But let's give him credit for responding reasonably to the judicial smackdown he received a few weeks ago from the state supreme court. The justices there, by a vote of 4-2, expressed confidence that the Republican jurist would get it right the second time around -- and he did. Disappointed that he didn't just toss the whole law? Don't be. Judges don't just toss out laws; in fact, there is strong precedent, uncontroversial precedent, in favor of keeping as much of a state statute as is possible.

Chastened by his superiors, Judge Simpson was forced to acknowledge that he will need further guidance from the Pennsylvania Supreme Court about whether it is the state or those challenging the law who have the burden of proving (or disproving) its disenfranchising effect. But he also ruled that his injunction will automatically dissolve after the coming election. This means we'll like see a full-blown trial over the new law sometime next year, a long, nasty trial the state could avoid simply by amending the text of the law to make it less burdensome.

We'll see. There is no reason to think, absent a dramatic change in the makeup of the state legislature next year, that the Republicans now in control will be any more amenable to a nonpartisan solution here than they were when they enacted the law in the first place. They said they needed to do it to prevent voter fraud and to ensure the accuracy and integrity of the state's elections. But guess what? Judge Simpson didn't once use the phrase "voter fraud" in his ruling Tuesday. Not once.

There will be, this ruling guarantees, plenty of time for Pennsylvanians of all stripes to fight among themselves over who gets to vote and how. In the meantime, today is a bad day for the venal Republican lawmaker who said publicly over the summer that the new law would mean a Romney victory in the state. And it's a bad day for the prejudiced Republican lawmaker who said a few weeks ago that Pennsylvanians without a new photo identification card were just lazy. And if today is a bad day for yahoos like that, it is a very good day indeed for democracy in America.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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