After hearing oral arguments on the VoterID bill last week, the state Supreme Court, in a 4-2 decision, has decided ... not to decide. At least not yet.
In an unsigned opinion, the court's three Republican judges joined with Democrat Max Baer to send the case back to Commonwealth Court Robert Simpson for another hearing. This time, though, the ruling requires Simpson to ensure that the state's issuance of ID cards "comport[s] with the requirement of liberal access which the General Assembly [required]
[I]f the Commonwealth Court is not still convinced ... that there will be no voter disenfranchisement arising out of the Commonwealth's implementation of [the Voter ID law] for purposes of the upcoming election," the ruling continued, then Simpson "is obliged to enter a preliminary injunction" that would bar the law from taking effect this November.
In other words, unless the state can convince Simpson that no one is losing their access to the polls, the law is being shelved until after the election.
"It's a very tough standard," David Gersch, who argued against the law before the Supreme Court, told reporters during a conference call. And the Supremes, he noted, instructed Simpson not to take government officials' word for it. "We are not satisfied with a mere predictive judgment based primarily on the assurances of government officials," the ruling held, "even though we have no doubt they are proceeding in good faith."
ACLU attorney Vic Walczak, who was also on the conference call, said that such language shifted the burden of proof from the plaintiffs to the defendants -- which is why Simpson may very well not come to the same conclusion he did last time, when he denied the motion to put the law on hiatus.
In his original ruling, Simpson did acknowledge that, if he subjected the law to a stricter standard of legal scrutiny, he he might have reached a different decision.
It's clear from the Supreme Court's ruling that the case was vexing -- in part because, as Baer said during last week's arguments, judges were being asked to rule on "a moving target" -- a law whose implementation was being handled on the fly. When Simpson held his hearing, after all, a plan to issue special voting-only ID cards for those who couldn't get existing IDs was still on the drawing board. Simpson accepted government officials' claims about the card's availability at face value, even though the state didn't begin issuing them until late August.
In its ruling today, the majority wrote that "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 ... 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."
In other words, the state -- and its voters -- are reaping the whirlwind of a GOP initiative to establish voter ID requirements just months ahead of a national election. During the arguments in Simpson's courtroom and before the Supreme Court, critics argued that the law had been rushed. Other states with voter ID laws, they pointed out, had phased those laws in over a few election cycles.
Indeed, the two dissenting judges, Democrats Seamus P. McCaffery and Debra McCloskey Todd, wanted to issue the preliminary injunction putting the law in limbo. "By remanding to the Commonwealth Court, at this late date, and at this most critical civic moment," Todd wrote, "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."
With just 49 days to go before the election, "The question no longer is whether [PA] can constitutionally implement this law, but whether it has," she added.
McCaffery wrote a similarly stinging dissent. As he did in court last week, he noted that the crisis was entirely of Republicans' making, since the state had no evidence that voter fraud had happened, or was likely to happen this November. "I cannot now be a party to the potential disenfranchisement of even one otherwise qualified elector," he concluded.
But in any event, the fever pitch seems unlikely to abate any time soon. Arguments before Simpson will likely take place next week, and the Supreme Court is requiring him to issue a ruling the week after that -- no later than Oct. 2. And even that ruling may be appealed.
"If we thought the first trial was on compressed schedule," Walczak said, "we haven't seen nothin yet."