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Justices McCaffery and Todd Allege Pennsylvania Supreme Court’s Voter-Id Opinion a Product of Partisan Politics

By James P. Goslee, Esquire

The Pennsylvania Supreme Court issued a per curiam opinion yesterday in a nationally followed case, temporarily vacating a lower court’s decision to allow implementation of a controversial voter identification law. Pursuant to the opinion, Commonwealth Court Judge Robert Simpson must reconsider his prediction that Pennsylvania voters will not be disenfranchised if Act 18’s voter identification requirement goes into effect prior to the November 6 elections. Although the majority’s opinion opens the door for a possible injunction, impassioned dissents by two Justices accuse the majority of engaging in partisan politics and outline the grave threat of disenfranchisement if the law is eventually permitted to go forward. While it seems the law is at risk to be applied to the November election, the Commonwealth Court has until October 2, 2012 to make a final determination.

In Applewhite et. al. v. Commonwealth of Pennsylvania a number of Pennsylvania citizens and non-profit organizations filed a lawsuit to prevent the Commonwealth from enforcing a new law (“Act 18”) requiring citizens to have State issued identification cards in order to vote in the November elections. On August 15, 2012, Commonwealth Court Judge Robert Simpson denied the plaintiffs request for an injunction and cleared the way for Act 18’s voter identification requirements to go into effect. In denying the injunction, Judge Simpson predicted that Pennsylvania’s efforts to educate the public on Act 18 and quickly provide identification cards to registered voters would prevent citizens from being disenfranchised. The plaintiffs subsequently appealed.

In its opinion, the Pennsylvania Supreme Court openly questioned whether Act 18 could be constitutionally implemented before the November elections. The primary concern for the Court was the fact that the law was not being enforced as written. Pursuant to Act 18, citizens who are registered to vote in Pennsylvania can receive a free identification card from the Pennsylvania Department of Transportation – even without typically required forms of proof such as a birth certificate or social security card. Despite Act 18’s liberal proof requirement, PennDOT has refused to issue identification cards without proper proofs in order to avoid Homeland Security issues. Although the Commonwealth has attempted to cure this defect by issuing non-secure Department of State identification cards, the majority questioned whether this alternative plan could be implemented by November. Despite its apparent misgivings, the Supreme Court decided not to issue an injunction. Instead it remanded the case back to Judge Simpson “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 other words, Judge Simpson is to consider if the Commonwealth’s ad hoc efforts to make alternative identification cards available by November 6 is sufficient to avoid potential disenfranchisement.

In response to the per curiam opinion, Justices McCaffery and Todd issued short, colorful and thought provoking dissenting statements chastising the majority for remanding the case to Judge Simpson. According to Justice Todd, “[f]orty-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.” (emphasis in original). Considering the “near-certain loss of voting rights” and the Commonwealth’s admitted inability to implement the law as written, Justice Todd believed the Supreme Court should have granted the injunction – not remanded the case back to Judge Simpson. Justice Todd concluded her dissent by accusing the majority of abdicating their judicial duty:

“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 joined in Justice Todd’s dissent and also wrote one of his own. He too was critical of the majority’s decision to remand the case instead of granting the injunction. According to Justice McCaffery:

“[A] new prediction from the lower court will have no more legal significance before this Court than the existing one, and I predict that, once again, we will be presented with a record that establishes that many thousands – indeed, ultimately uncountable numbers – of otherwise qualified electors will lack a Photo ID for purposes of the upcoming election, and hence will be disenfranchised despite the Commonwealth’s last ditch efforts to loosen the standards established by Act 18. (emphasis and bold in original)”

Justice McCaffery considered the Commonwealth’s attempt to implement Act 18 ten weeks before the election “simply unreasonable and constitutionally insupportable.” He dismissed any benefit of the Act, noting that the Commonwealth stipulated that it had no evidence of past in-person voter fraud. Thus, according to Justice McCaffery, “[w]here there is concededly no harm that will be remedied by implementing Act 18 prior to November 2012, where the potential for harm to the cherished right to vote to uncountable numbers of citizens is substantially threatened, and where this harm cannot be remedied by any post-election lawsuit, contrary to the Commonwealth Court’s astounding belief, the need for immediate judicial action cannot be denied.”

Not to be outdone by Justice Todd, Justice McCaffery concluded his dissent with a blistering criticism of the purpose and impact of Act 18 and suggested that the majority’s refusal to grant an injunction was a product of partisan politics:

“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.”

The per curium opinion has clearly articulated the square question that, while simple on its face, has grave Constitutional implications. It is at the same time abundantly clear from the opinions of Justices McCaffery and Todd that the answer is obvious; they disagree with the forced, speedy implementation of Act 18 and the majority’s refusal to enjoin it outright. Nevertheless, with the clock ticking closer to November 6, all eyes now return to Judge Simpson. If he once again predicts that Act 18 will not disenfranchise Pennsylvania voters the Supreme Court will almost certainly have to consider the issue again – but next time they won’t have the option to “punt. “

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