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."
Here is the full ruling:
CLARIFICATION: An earlier version of this story said the court vacated the law. The court vacated the decision, not the law.