by Mary O'Rourke, Staff Writer
Although the court’s ruling appears to be a victory for
critics of the Voter ID Law, the law was only preliminarily — and not
permanently — enjoined. The law’s identification requirements may have been
inapplicable for the November election, but they were not declared unlawful for
future elections. Indeed, both the unsigned opinion of the Supreme Court and
the Commonwealth Court’s opinion issuing the injunction indicate that Act 18’s
requirements would have been upheld if they had not been implemented in such a
short time period before the election.
“Voter ID, which is going to
allow Governor Romney to win the state of Pennsylvania: done.”
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| State Representative Mike Turzai (PA-R) commenting on Voter ID law© Marc Levy/Associated Press |
Pennsylvania House Majority
Leader Mike Turzai’s comments unknowingly set into motion a hotly contested
examination into the validity of Act 18, otherwise known as the Pennsylvania
Voter ID Law.
Turzai’s comments came
months before a group of individuals and organizations, including various
amici, filed an action in the Commonwealth Court requesting the court to enjoin
the Commonwealth of Pennsylvania from implementing the Voter ID Law,
legislation that requires registered voters to present photo identification in
order to cast a vote.
Commonwealth Court Judge
Robert E. Simpson originally heard the challenges to the law, which asserted
that the law violated rights provided by the Pennsylvania Constitution. On Aug.
15, 2012, Judge Simpson issued an opinion holding that the law was
constitutional and that as a result, electors would be required to present
proof of identification in order to vote in the 2012 Presidential Election. Those
challenging the law appealed, and the Supreme Court of Pennsylvania held
argument about a month later.
The Supreme Court refrained
from reversing the Commonwealth Court’s decision, and instead sent the case
back to determine whether registered electors were being provided with
alternative forms of identification in compliance with Act 18 so that no voter
would suffer from disenfranchisement.
Although the Pennsylvania
Department of Transportation (“PennDOT”) was statutorily obligated to provide
registered electors with photo identification cards, it was not complying with
the law. As the Court explained, PennDOT had failed in allowing liberal access
to identification cards and instead required registered elector applicants to
complete a rigorous application process to obtain one.
As a result, the Supreme
Court found that the law was not being implemented as written, and remanded the
case back to the Commonwealth Court to determine whether PennDOT ID cards were
liberally accessible to registered electors. The Supreme Court advised the
Commonwealth Court that after its examination, if it was still not convinced
that no voter disenfranchisement would arise from the Voter ID
requirement, then it was obligated to issue a preliminary injunction against
the enforcement of the law.
On remand, Judge Simpson held another hearing from which
he concluded that in the remaining five weeks before the election the estimated
need for those who had no form of identification was too great. Not convinced
that no voter disenfranchisement would arise out of the implementation
of the Voter ID Law, the Commonwealth Court issued an order enjoining the
Commonwealth from requiring that registered electors’ present identification in
order to cast a vote for the 2012 Presidential Election.
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| © Todd Wiseman/The Texas Tribune |
During oral argument before
the Supreme Court, challengers of Act 18 acknowledged that, although unconstitutional
in this context, it would be constitutionally permissible for a state to
require the presentation of an identification card in order to cast a ballot.
In fact, other states such as Virginia, Tennessee, Georgia, Indiana and Kansas
have upheld voter ID laws under their respective constitutions.
Both the Supreme Court and
Commonwealth Court have indicated that the Voter ID Law is constitutional. The
opinions enjoining the law rely on the fact that the law failed to guarantee
that all qualified voters would have access to a photo ID before the November
election. However, in the order enjoining Act 18’s ID mandates, there is no
mention of any section of the Pennsylvania Constitution.
Both courts have been
unclear as to whether they are to be construed as impacting the
constitutionality of election regulations. Regardless of their lack of clarity,
the rules articulated in these decisions now control. Until the Pennsylvania
Supreme Court clarifies what kind of effect its decision will have on election
law, the legal community is bound to the explanations of law within these
recent opinions.
Although infamously
and insistently referred to throughout the election, Turzai’s partisan comments
surprisingly received only cursory treatment by both courts. Neither the
majority of the Supreme Court nor Judge Simpson found them significant enough
to discuss in their opinions. Justice McCaffery’s dissent touched up the
question of animus sparked by Turzai’s statements.
“It
is clear to me that the reason for the urgency of implementing Act 18 prior to
the November 2012 election is purely political,” McCaffery said in his
dissenting opinion.
Does the Supreme
Court’s failure to address the issue of animus mean that Turzai’s statements
were irrelevant? Although the Court does not provide an answer, Judge Simpson’s
opinion appears to have adopted the federal animus standard announced in Crawford v. Marion County Election Board,
in which the United States Supreme Court held that if a nondiscriminatory law
is supported by other valid neutral justifications, it should be upheld
regardless of any partisan interests that may have motivated individual
legislators. The Supreme Court’s failure to adequately address the consequence,
if any, of Turzai’s statements, has left those in the legal community guessing
as to whether legislative animus even matters.
The Pennsylvania Supreme
Court’s decision is important in another respect. Although the opinion was
unsigned, the elected court, which is currently consists of three Democrats and
three Republicans, did not split according to party affiliation as many had
predicted. The per curiam order was
joined by all of the Republican Justices and one Democrat. Bruce Ledewitz, a constitutional
law professor at Duquesne University and a frequent critic of the court, was
surprised when his prediction that the court’s decision would be divided
according to party lines was wrong. Ledewitz commended the justices for
reaching outside party lines.
“Partisan considerations did
not enter into it at all and everyone thought it would. The people of
Pennsylvania should be very proud of their judges. This is a real rebuke to
people who say you cannot get non-partisan justice out of an electoral system. I
think we did,” Ledewitz said.
