Pennsylvania Voter ID…DENIED Sent back!
Pennsylvania Voter ID Law Sent Back By State Supreme Court To Lower Court For Reconsideration
In a potentially significant victory for Democrats, the Pennsylvania Supreme Court vacated a lower court's decision to uphold the states's restrictive new voter ID law on Tuesday, and asked the judge to consider enjoining it instead.
The law, passed by a Republican legislature and governor, requires voters to have specific, state-issued photo ID -- a move that opponents say could disenfranchise tens of thousands of people, most of them minorities, students and the elderly.
"We are not satisfied with a mere predictive judgment based primarily on the assurances of government officials," the court wrote of arguments that voters would not be disenfranchised by the law.
The court ruled 4-2, with two dissenting justices saying it should have blocked the law outright. One justice accused the court of "punting" and said she would have "no part in it."
The state Supreme Court sent the case back to the Commonwealth Court judge, but with instructions that seemed almost designed to force him to enjoin the law. Given the fact that there are less than two months until the election, the justices wrote, "the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate."
The judge was instructed "to consider whether the procedures being used for deployment" of ID cards comports with the law as written -- which the court itself made clear was not the case. "The Department of State has realized, and the Commonwealth parties have candidly conceded, that the Law is not being implemented according to its terms," the justices wrote.
The justices, for instance, noted in their decision that while the law called for voters to be granted state-issued ID simply upon an affirmation, "as implementation of the Law has proceeded, PennDOT -- apparently for good reason -- has refused to allow such liberal access."
If those procedures are not being followed, or if the judge was "not still convinced ... 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" then he would be "obliged to enter a preliminary injunction," the higher court wrote.
The court agreed that the short timeframe of the law's implementation just months before Election Day presented a potential constitutional issue, but noted that even the appelants agreed that such a law could be implemented.
The two Democratic justices who were most outspoken during last week's oral arguments both dissented from the majority opinion, saying the high court should have issued an injunction itself.
Justice Seamus P. McCaffery wrote in his dissent:
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. That has been made abundantly clear by the House Majority Leader. 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.
McCaffery was referring to a declaration in June by Pennsylvania's GOP House majority leader, Mike Turzai, that the voter ID law "is going to allow Governor Romney to win the state of Pennsylvania."
Justice Debra McCloskey Todd wrote in her dissent, "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."
The decision gave Commonwealth Court Judge Robert Simpson until Oct. 2 to file his new opinion.
"Today’s decision by the Pennsylvania Supreme Court is a big step in the right direction for the Commonwealth's voters," said Penda D. Hair, co-director of the Advancement Project, one of the groups that sued to overturn the law. "The Supreme Court sent the case back to the lower court, stating in strong terms that the state’s restrictive voter ID must be stopped in time for the fall elections unless the lower court finds that ‘there will be no voter disenfranchisement arising out of the ID requirement.'"
Opponents of the law saw the battle turning in their favor, though not yet won, with the burden of proof now being on the state rather than the plaintiffs. "It's only a victory in the sense that it vacates the adverse result below," said David Gersch, the attorney for the plaintiffs. "But the court has gotten us at least part way there, and we're very appreciative of that … We don't believe that the Commonwealth can make the showing that the Supreme Court says has to be made."
[J-114-2012]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
VIVIETTE APPLEWHITE; WILOLA SHINHOLSTER LEE; GROVER
FREELAND; GLORIA CUTTINO; NADINE MARSH; DOROTHY BARKSDALE; BEA BOOKLER; JOYCE BLOCK; HENRIETTA KAY DICKERSON; DEVRA MIREL
(“ASHER”) SCHOR; THE LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA; NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE; PENNSYLVANIA STATE
CONFERENCE; HOMELESS ADVOCACY PROJECT
v.
THE COMMONWEALTH OF
PENNSYLVANIA; THOMAS W.
CORBETT, IN HIS CAPACITY AS
GOVERNOR; CAROLE AICHELE, IN HER CAPACITY AS SECRETARY OF THE COMMONWEALTH
APPEAL OF: VIVIETTE APPLEWHITE; WILOLA SHINHOLSTER LEE; GLORIA CUTTINO; NADINE MARSH; BEA
BOOKLER; JOYCE BLOCK; HENRIETTA KAY DICKERSON; DEVRA MIREL
(“ASHER”) SCHOR; THE LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA; NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE, PENNSYLVANIA STATE
CONFERENCE; HOMELESS ADVOCACY PROJECT
: No. 71 MAP 2012
:
: Appeal from the Order of the
: Commonwealth Court dated 8/15/12 at
: No. 330 MD 2012, denying Appellant's
: Application for Preliminary Injunction
:
:
: ARGUED: September 13, 2012
:
ORDER
PER CURIAM DECIDED: September 18, 2012
Before this Court is a direct appeal from a single-judge order of the
Commonwealth Court denying preliminary injunctive relief to various individuals and
organizations who filed a Petition for Review challenging the constitutional validity of Act
18 of 2012, also known as the Voter ID Law. Appellate courts review an order granting or denying a preliminary injunction for an abuse of discretion. See Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1000 (Pa. 2003).
The Declaration of Rights set forth in the Pennsylvania Constitution prescribes that elections must be free and equal and “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” PA. CONST. art. 1, § 5. The parties to this litigation have agreed that the right to vote in Pennsylvania, as vested in eligible, qualified voters, is a fundamental one.
The Voter ID Law was signed into law by the Governor of Pennsylvania in March of this year. For the General Election this November, and for succeeding elections, the legislation generally requires presentation of a photo identification card as a prerequisite to the casting of ballots by most registered voters.
In this regard, the Law contemplates that the primary form of photo identification
to be used by voters is a Department of Transportation (PennDOT) driver’s license or
the non-driver equivalent provided under Section 1510(b) of the Vehicle Code, 75
Pa.C.S. § 1510(b). See N.T. at 770-71. Furthermore, the Law specifically requires that
- notwithstanding provisions of Section 1510(b) relating to the issuance and content of the cards - PennDOT shall issue them at no cost:
to any registered elector who has made application therefor and has
included with the completed application a statement signed by the elector
[J-114-2012] - 2
declaring under oath or affirmation that the elector does not possess proof
of identification . . . and requires proof of identification for voting purposes.
Act of Mar. 14, 2012, P.L. 195, No. 18, § 2; see 25 P.S. § 2626(b). As such, the Law
establishes a policy of liberal access to Section 1510(b) identification cards.
However, as implementation of the Law has proceeded, PennDOT - apparently for good reason - has refused to allow such liberal access. Instead, the Department continues to vet applicants for Section 1510(b) cards through an identification process that Commonwealth officials appear to acknowledge is a rigorous one. See N.T. at 690, 994. Generally, the process requires the applicant to present a birth certificate with a raised seal (or a document considered to be an equivalent), a social security card, and two forms of documentation showing current residency. See N.T. at 467, 690, 793.1 The reason why PennDOT will not implement the Law as written is that the Section 1510(b) driver’s license equivalent is a secure form of identification, which may be used, for example, to board commercial aircraft. See N.T. at 699-700, 728-30, 780.
The Department of State has realized, and the Commonwealth parties have candidly conceded, that the Law is not being implemented according to its terms. See, e.g., N.T. at 1010 (testimony of the Secretary of the Commonwealth that “[t]he law does not require those kinds of - the kind of identification that is now required by PennDOT for PennDOT IDs, and it’s the Homeland Security issues”). Furthermore, both state agencies involved appreciate that some registered voters have been and will be unable to comply with the requirements maintained by PennDOT to obtain an identification card under Section 1510(b). See N.T. at 713 (testimony from a deputy secretary for PennDOT that “at the end of the day there will be people who will not be able to qualify for a driver’s license or a PennDOT ID card”), 749, 772, 810, 995. It is also clear to
1 Applicants whose information is already in PennDOT’s database may be exempted from these requirements. See N.T. at 466.
[J-114-2012] - 3
state officials that, if the Law is enforced in a manner that prevents qualified and eligible electors from voting, the integrity of the upcoming General Election will be impaired. See, e.g., N.T. at 480.
Faced with the above circumstances and the present litigation asserting that the
Law will impinge on the right of suffrage, representatives of the state agencies have
testified under oath that they are in the process of implementing several remedial
measures on an expedited basis. Of these, the primary avenue lies in the issuance of a
new, non-secure Department of State identification card, which is to be made available
at PennDOT driver license centers. However, preparations for the issuance of
Department of State identification cards were still underway as of the time of the
evidentiary hearing in the Commonwealth Court in this case, and the cards were not
slated to be made available until approximately two months before the November
election. N.T. at 534, 555, 706, 784, 993. Moreover, still contrary to the Law’s liberal
access requirement, applicants for a Department of State identification card may be
initially vetted through the rigorous application process for a secure PennDOT
identification card before being considered for a Department of State card, the latter of
which is considered to be only a “safety net.” N.T. at 709, 711, 791-95 (testimony from
the Commissioner of the Bureau of Commissions, Elections and Legislation that
applicants who are unable to procure a PennDOT identification card will be given a
telephone number to contact the Department of State to begin the process of obtaining
the alternative card); see also N.T. at 993.
In the above landscape, Appellants have asserted a facial constitutional
challenge to the Law and seek to preliminarily enjoin its implementation. They contend,
most particularly, that a number of qualified members of the Pennsylvania voting public
will be disenfranchised in the upcoming General Election, because - given their
[J-114-2012] - 4
personal circumstances and the limitations associated with the infrastructure through
which the Commonwealth is issuing identification cards - these voters will not have had
an adequate opportunity to become educated about the Law’s requirements and obtain
the necessary identification cards. While there is a debate over the number of affected
voters, given the substantial overlap between voter rolls and PennDOT’s existing ID
driver/cardholder database, it is readily understood that a minority of the population is
affected by the access issue. Nevertheless, there is little disagreement with Appellants’
observation that the population involved includes members of some of the most
vulnerable segments of our society (the elderly, disabled members of our community,
and the financially disadvantaged).
On its review, the Commonwealth Court has made a predictive judgment that the Commonwealth’s efforts to educate the voting public, coupled with the remedial efforts being made to compensate for the constraints on the issuance of a PennDOT identification card, will ultimately be sufficient to forestall the possibility of disenfranchisement. This judgment runs through the Commonwealth Court’s opinion, touching on all material elements of the legal analysis by which the court determined that Appellants are not entitled to the relief they seek.
As a final element of the background, at oral argument before this Court, counsel for Appellants acknowledged that there is no constitutional impediment to the Commonwealth’s implementation of a voter identification requirement, at least in the abstract. Given reasonable voter education efforts, reasonably available means for procuring identification, and reasonable time allowed for implementation, the Appellants apparently would accept that the State may require the presentation of an identification card as a precondition to casting a ballot. The gravamen of their challenge at this juncture lies solely in the implementation.
[J-114-2012] - 5
Upon review, we find that the disconnect between what the Law prescribes and
how it is being implemented has created a number of conceptual difficulties in
addressing the legal issues raised. Initially, the focus on short-term implementation,
which has become necessary given that critical terms of the statute have themselves
become irrelevant, is in tension with the framing of Appellants’ challenge to the Law as
a facial one (or one contesting the Law’s application across the widest range of
circumstances). In this regard, however, we agree with Appellants’ essential position
that if a statute violates constitutional norms in the short term, a facial challenge may be
sustainable even though the statute might validly be enforced at some time in the future.
Indeed, the most judicious remedy, in such a circumstance, is the entry of a preliminary
injunction, which may moot further controversy as the constitutional impediments
dissipate.
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 has by no means been seamless in
light of the serious operational constraints faced by the executive branch. 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.
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
[J-114-2012] - 6
Commonwealth Court is not still convinced in its predictive 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 obliged to enter a preliminary injunction.
Accordingly, the order of the Commonwealth Court is VACATED, and the matter
is returned to the Commonwealth Court for further proceedings consistent with this
Order. The Commonwealth Court is to file its supplemental opinion on or before
October 2, 2012. Any further appeals will be administered on an expedited basis.
Jurisdiction is relinquished.
Madame Justice Todd files a Dissenting Statement which Mr. Justice McCaffery
joins.
PEOPLE GET OUT AND VOTE DO NOT BE INTIMIDATED FOLKS DIED FOR YOUR RIGHT TO VOTE...USE IT!
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