OUT & ABOUT: Courts’ Weird Dance Around Voter Photo ID

BY DENISE CLAY/ “No, you handle it!”

“No! I don’t want to handle it! You handle it!”

“But you’re the bigger court!”

“But you made the initial decision!”

Now, I’m pretty sure that’s not how it went, but I would guess that if the Pennsylvania Supreme Court and the Commonwealth Court were a couple of little kids, they’d be saying that about the Commonwealth’s new voter-ID law right about now.

On Wednesday, the Supreme Court made a decision on the voter-ID law based on the arguments they heard during last week’s hearings held here in Philadelphia. The decision: Let’s not make a decision. Let’s make Commonwealth Court do it. The Supremes sent the voter-ID law back to Commonwealth Court.

This was the court that decided a few weeks ago that the law, which mandates some sort of state-sponsored ID in order to vote, didn’t constitute an impediment to voting and that the state should be trusted to make sure that all voters know (a) that the law was in place and (b) where to get an ID.

On that point, the Supremes did not agree. Writing for the majority in the 4-3 decision, Chief Justice Ron Castille said the time frame that the Commonwealth had given itself to implement this law was far too short for the court to believe they would be able to pull it off. “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 by no means has been seamless in light of the serious operational constraints faced by the Executive Branch,” the opinion said. “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.”

In other words, they got a load of PennDOT, saw that it could only churn out at max 45,000 regular IDs a month, not to mention the new “voting-only” IDs and said, basically, “Are you nuts?!”

The court also stipulated if the Commonwealth Court couldn’t find anyone other than the electeds to show that no one who was supposed to have the right to vote would end up out in the cold because of the lack of an ID, they’d have to grant the injunction. That’s because, at least to the Supremes, voting is one of those rights that you only mess with because you have to, not just to be arbitrary.

The Commonwealth Court has to make a decision on this issue by Oct. 2 according to the ruling. This gives the losing side the chance to appeal to the Supremes, who have promised an expedited hearing.

But while the majority of the court seemed to agree with that, two of the Democratic justices, Seamus McCaffery and Debra McCloskey Todd, dissented. Justice Todd, who really took it to Deputy Attorney Gen. John Knorr during last week’s hearings, said in her dissent the Supreme Court had abdicated its responsibility by sending it back to the lower court. 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,” she said. “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 Nov. 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,” Todd continued. “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 went even further in his dissent, echoing the view on the part of some of the law’s opponents that the law is more about politics than it is about fraud, a view not helped by Majority Leader Mike Turzai’s declaration of “Done!” shortly after saying that this law represented Republican presidential candidate Mitt Romney’s chance to win the state’s electoral votes in November.

“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 the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political,” Justice McCaffery said. “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.”

Like I said earlier, the Commonwealth Court has to make a decision on Oct. 2, so this isn’t going away. But you might want to make sure you have your ID … because I don’t think this is the last we’ve heard of this issue.

   Send article as PDF