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24 Sep 2012

The ‘can’ that is the Commonwealth’s Voter ID law was kicked back to Commonwealth Court on Wednesday

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September 24, 2012 Category: Week In Review Posted by:

By Denise Clay


The battle over the Commonwealth’s new Voter ID law has turned into a game of “Kick the Can.”


By a 4-2 decision, the state Supreme Court has remanded the Voter ID law back to Commonwealth Court for a new hearing. It was the lower court’s decision to uphold the law earlier this month that led to the Supreme Court appeal.


In Commonwealth Court Justice Robert E. Simpson’s 70-page-decision, he gave deference to the General Assembly and said that the Voter ID law didn’t constitute a hardship to voting because people could use absentee ballots and there were ample opportunities and ample time to either get a multi-use ID or get one of the free IDs that the Commonwealth was issuing to allow people to vote.


That was the main part of Judge Simpson’s decision that the Supreme Court disagreed with. Writing for the majority, Chief Justice Ron Castille said that the time frame that the Commonwealth had given itself to implement this law was far too short for the court to believe that 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.”


Add this to information that the Supreme Court received regarding how many ID cards PennDot could produce in a single month, which was 55,000 at maximum and the fact that November 6 is less than two months away, the court felt that it had no recourse but to demand that the Commonwealth court take a second look.


But for the two dissenting justices, Debra McCloskey Todd and Seamus McCaffrey, both Democrats, the ruling just made matters worse.


In her dissent, Todd, who kept asking Commonwealth attorneys what made putting the voter ID law in place such an urgent priority with this election, said that by sending this back to the lower court, the court had acted irresponsibly.


Voters need to know the rules of the game before they go to the polls in November, she said. Since there’s no way that the Commonwealth could do what it’s supposed to do according to its own rules by then, the Supreme Court should have just did what the plaintiffs requested and granted an injunction.


“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 said. “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.”


McCaffrey went further, saying in so many words that the “good faith” the Supreme Court was giving to lawmakers in the General Assembly was misplaced. Thanks to Majority Leader Mike Turzai’s comments on how the law would help Republican Presidential Candidate Mitt Romney win the state’s electoral votes in November, McCaffrey said the politics of the law demand its injunction.


“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,” McCaffrey 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.”


At a press conference following the ruling, lawyers for the plaintiffs that filed the initial lawsuit against the Voter ID law expressed relief that the Supreme Court demanded that a stricter standard be applied when looking at this law.


“The Supreme Court has affirmed that voting is a fundamental right with this ruling,” said David Gersh, an attorney from the Washington, D.C. firm Arnold and Porter that was representing the plaintiffs. “The burden of proof is on the state instead of the plaintiffs.”


The case must be heard and a decision made by Oct. 2.

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