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The Pennsylvania Supreme Court today vacated a lower-court decision upholding the state’s voter ID law, instructing Commonwealth Court Judge Robert Simpson to rehear the case, looking specifically at whether the state is doing enough to make sure that every eligible Pennsylvania voter has the right ID to cast a ballot. The supreme court, in a 4-2 decision, found a “disconnect between what the Law prescribes and how it is being implemented,” and noted 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.” Ad Policy

Two key sections of the court decision:

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. …We will return the matter to the Commonwealth Court to make a present an 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 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.

The important takeaway from the ruling is that the supreme court shifted the burden of proof from the plaintiffs, who in lower court had to show that eligible voters would be disenfranchised by the law, to the state, who now has to prove that voters will not be disenfranchised. That’s why lawyers for the plaintiffs, which includes the ACLU and the Advancement Project, are optimistic about the chances of receiving a preliminary injunction when the Commonwealth Court rehears the case, possibly as soon as next week. A decision is mandated by October 2. “It’s certainly a victory in that it vacates the adverse decision from below,” said David Gersch, the lead lawyer for the plaintiffs. Gersch wanted an injunction against the law but said that today’s ruling has “gotten us partway there.” He said the state would have a tougher time making their case under the new standard mandated by the supreme court. Judge Simpson has “got to determine, without relying on assurance from the government, that no voters are being disenfranchised,” said Gersch. “That’s a very tough burden to meet.”

The case is now less about the constitutionality of voter ID laws and more about the difficulties of obtaining the right ID. Under the new voter ID law, acceptable forms of ID include a driver’s license, Department of Transportation (PennDOT) ID, passport, military ID or an ID issued by state or city governments, nursing homes or accredited colleges and universities, provided they have an expiration date on them (which many do not). To get a “free” voter ID from PennDOT you need two proofs of residency, along with a Social Security card and a birth certificate—which not everyone has and which costs money to obtain. Under public pressure, the state began issuing a voting-only “safety net” ID at the end of August that only requires a Social Security number and two proofs of residency.

In the lower-court decision, Judge Simpson concluded that the number of registered voters without valid voter ID “is somewhat more than 1 percent and significantly less than 9 percent,” which leaves anywhere from 100,000 to 500,000 voters, according to conservative estimates, without ID. Yet Vic Walczak, legal director for the Pennsylvania ACLU, noted that the state has issued only 9,000 voter IDs since the law went into effect in March. Six thousand of them have been issued since the trial in August, which equals less than 1,000 a week. Even if the state doubled the number of voter IDs it issued per week, that would still mean only 25,000 voters obtained the right ID—a number far below the 100,000–500,000 registered voters without ID. “That’s a significant gap,” Walczak said—and a disparity that should be a major focus of the new trial.

Moreover, obtaining voter ID can be a hellishly difficult process in Pennsylvania. According to the Pennsylvania Budget and Policy Center, “Nine rural counties have no driver’s license centers at all, and in an additional 20 counties containing 1.5 million people, Driver License centers are open three or fewer days a week. Only seven of 67 counties have more than one driver’s license center.” Philadelphia has five PennDOT offices in a city with over a million registered voters. This was the line when I visited a location in downtown Philadelphia on Friday afternoon—at least a hundred people were there, and the wait was well over an hour.

The Washington Post recounted a story of one longtime voter who waited four hours just to get her voter ID. It’s not uncommon for voters to wait for hours and then be told by a PennDOT worker that they have to pay $13.50 for what is supposed to be a free ID or that the don’t have the right documentation. Despite the availability of the new “safety net” ID, “‘people are being turned away,” said Marian Schneider of the Advancement Project.

“The Commonwealth’s interest in the implementation of this law, at least as concerns the November election, is somewhere from slight to symbolic,” wrote Judge Seamus McCaffery in his dissent. For that reason, the supreme court should’ve immediately issued a preliminary injunction against the law, wrote Judges McCaffery and Todd in their dissents.

Wrote McCaffery:

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 [Mike Turzai, who said the voter ID law “is going to allow Governor Romney to win the state of Pennsylvania”]. 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.

Concurred Todd:

Forty-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. Despite impending near-certain loss of voting rights, despite the Commonwealth’s admitted inability thus far to fully implement Act 18 and its acceptance that, presently, “the Law is not being implemented according to its terms,” and despite the majority’s concession that the “most judicious remedy” in such circumstances would be to grant an injunction, the majority nonetheless allows the Commonwealth to virtually ignore the election clock and try once again to defend its inexplicable need to rush this law into application by November 6, 2012.

She concluded: “The eyes of the nation are upon us, and this Court has chosen to punt rather than to act.”

Pennsylvania isn’t the only state where voting rights are being attacked. Check out The Nation’s Voting Rights Watch 2012 collaboration with Colorlines.com.