A timid ruling sends the matter back to the trial court for more review -- guaranteeing more voting chaos between now and Election Day.
Different people will label differently Tuesday's voter identification ruling by the Pennsylvania Supreme Court. By a vote of 4-2, the Justices in the end decided not to uphold or strike down the controversial measure but rather to send the case back down to the trial judge to evaluate whether state election officials there were implementing it in a way that fairly ensures that "alternate identification cards" are being handed out "liberally" to ensure that no registered Pennsylvanian is disenfranchised by the new state-photo-ID requirement.
Some will call the ruling a "compromise," an act of judicial modesty, which buys state officials two more weeks to prove they can fairly implement the new measure. Indeed, this is likely how the Court's majority, in its unsigned opinion, wants posterity to judge this 7-page opinion. Even though the Justices expressed concern about "the disconnect between what the law prescribes and how is it being implemented," even though they acknowledged that the new law may be unconstitutional as applied today, they refused to strike down the measure.
Instead, the majority has sent the case back down for review to Judge Robert E. Simpson, Jr., the Republican jurist whose extraordinarily broad and factually weak ruling in August has jeopardized the ballots of perhaps hundreds of thousands of registered Pennsylvania voters. But Judge Simpson's mandate on remand is not clear, which is why some observers of this unfolding drama will label Tuesday's ruling as a futile one which only makes a bad situation worse. From the Court's opinion:
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 predicative 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 obligated to enter a preliminary injunction.
What that means, in effect, is that Judge Simpson has to hear more evidence, and hear more argument from lawyers, about whether the state is doing enough to ensure that registered voters without the new state-mandated photo ID are being given a workaround, an alternate form of identification which will allow their votes to count. In other words, the future of this law depends, for now, upon how successful state officials are in proving to the courts that they are encouraging exceptions to the law. This is why some observers might call the ruling "a joke."
Whatever Judge Simpson decides to do with the case now, he won't be able to get away with one of the most obvious judicial deceits he employed in August. He won't be able to shrug off constitutional concerns about disenfranchisement simply by accepting at face value the promises of bureaucrats, including partisan bureaucrats, that state voters will be just fine with the new requirements. If under his new level of review Judge Simpson finds any voter disenfranchisement, Tuesday's ruling indicates, he is "obligated" to strike down the measure.
Pennsylvania Supreme Court Justice Debra Todd, in dissent, used another word to describe the majority's ruling. "Forty-nine days before a Presidential election," she wrote, "the question is no longer whether the Commonwealth can constitutionally implement this law, but whether it has constitutionally implemented it" (emphasis in original). Justice Todd continued:
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.
Pennsylvania Supreme Court Justice Seamus McCaffery, another dissenter on Tuesday, was even more blunt. To him, sending the case back down to Judge Simpson, and inviting him again to some form of "predicative judgment" about the scope of the disenfranchisement resulting from the new law, is just a waste of time. Justice McCaffery wrote:
However, 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.
So the case now comes back down for review. Between now and October 2nd there will be briefing by the lawyers and a hearing, or two, by Judge Simpson. Then he will have to write another ruling and submit it to the state Supreme Court, which will then evaluate it in light of Tuesday's ruling. This guarantees that the voter ID fight in Pennsylvania will last at least until mid-October, as both sides scramble to make their case in court. You think there is drama now over voter suppression? Wait until October 15th. Or October 22nd.
What happens now? I don't know. Would Judge Simpson have the temerity to conclude again that no registered voters in Pennsylvania will be disenfranchised by an ID law that by its terms instantly disenfranchised hundreds of thousands of voters? Will state officials be able to prove between now and October 2nd that these "alternate identification cards" are being handed out so widely as to mitigate the heavy burdens imposed by the new law? Will even just one of the three GOP appointees on the state Supreme Court strike down this Republican law?
The irony in all of this, of course, no matter what happens now, is that a state law purportedly designed to ensure confidence and integrity in voting procedures has had the opposite effect. The 2012 election in Pennsylvania is chaotic now, and Tuesday's timid ruling guarantees that it will be chaotic for at least another month. The dissenting justices asked Tuesday: Why wasn't the new law phased in over two election cycles, as it has been elsewhere, to ensure less uncertainty and chaos? Why, indeed.
Instead of confidence and integrity in the coming election, and again thanks to Tuesday's procedural ruling, we have instead precisely what many of the law's most cynical sponsors and supporters hoped we would have: an electorate of minority voters, and the elderly, and the car-less, who are uncertain about their ballots and who are being hassled and harried as they try to bear the new burden imposed upon them by the state, a burden imposed despite the absence of any proof that the problem it purports to solve actually exists in Pennsylvania.
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