So by now, we all know that Democrats and liberals (and lovers of freedom and voting rights everywhere) won a “sorta” victory yesterday, a “did we win or not?” win. Proponents of voter rights had appealed the earlier decision of a lower court last month refusing to issue a preliminary injunction preventing Pennsylvania’s controversial new Voter ID Law from taking effect. Yesterday, the Pennsylvania Supreme Court handed down its decision.
As a lawyer, this decision is right in line with what judges usually do – hand out deflating victories, or defeats with cushions. If you’re not an attorney, though, this decision could be a little too much nuance, and not enough oomph. It was anything but a sexy decision. Lightning did not crash. No choirs of angels sang. The earth didn’t move. And the Law is still there – with no injunction to block its implementation – yet.
The Supreme Court was cautious in its decision. The Court let the lower court know that it disagreed with the lower court’s reasoning and vacated the lower court’s decision. In addition, the Supreme Court sent the case back down to the lower court, with instructions. This basically lets the lower court know that it HAS to issue a preliminary injunction blocking the Law from taking effect, unless it is proven that some things have happened that will ensure that voting is not harder for certain groups. In other words, unless changes have happened that pretty much take all the political advantage away from the Republicans who passed the legislation in the first place, the lower court HAS to issue an injunction. It seems to be a reasonable approach.
The Voter ID Law
To the Supreme Court, the primary point of the Law is to require voters to present photo identification before the voter can vote. The Law expects that the primary form of photo ID used by voters will be Pennsylvania Department of Transportation (PennDOT)–issued driver’s license or non-driver ID. The Law tries to make acquiring the ID really easy by attempting to override PennDOT procedures, kind of an “Easy ID” provision: the ID will be issued free of charge, and any voter who signs a statement affirming that the voter in question doesn’t have proof of identification and needs one for voting purposes, and has completed the application for the ID, will receive one. Apparently, the purpose of this “Easy ID” provision is to avoid any accusations that the Law is attempting to disenfranchise voters by making the procurement of a hard-to-get ID one of the requirements for voting.
However, it turns out that PennDOT is not playing along. If I were a cynical person (and I am), I would argue that Republicans wrote this Law, knowing full well that PennDOT would never implement it as written, but proceeded to enact the Law anyway. Why not? If confronted with claims of voter disenfranchisement due to PennDOT’s non-compliance with the Law, these Republicans could just shrug their shoulders. Hey, they tried to make it easy. Who knew that PennDOT was such a hardass? By then, then issue would be dead, because President Romney would already be warming up the money-bubble bath for corporations and obliging the Tea Party nuts.
No, PennDOT is still requiring that people present a birth certificate with raised seal, a social security card, and two forms of documentation showing current residence. And for good reason: since PennDOT photo ID is a secured form of identification, one that you can board planes with, for example, the bar must necessarily be high to show that you are who you say you are. When asked on the stand about PennDOT’s sensible adherence to its traditional vetting process prior to issuing photo ID, the Secretary of the Commonwealth could only offer the lame defense that the “Easy ID” section of“’[t]he [Voter ID] law does not require those kids of – the kind of identification that is now required by PennDOT for PennDOT IDs.’” In other words, “We tried to make getting ID easy, it’s evil PennDOT that’s screwing everything up!” How convenient for Republicans.
Because it’s so obvious that this situation will screw many voters (trying not to be overly technical, I think “screw” hits the right note), the State testified that it is “in the process of implementing several remedial measures on an expedited basis.” Wow, sounds reassuring. At the time of testimony, less than two months’ out from the General Election, the State’s “in the process”. Because if nothing else was being done, then there’s a real problem here, because the “Easy ID” section of the Law isn’t even being followed by PennDOT.
So what “remedial measures” to help comply with the “Easy ID” section? Well, one solution being contemplated is a new, non-secure Department of State ID card. Of course, preparations were still “underway” at the time of the evidentiary hearing back whenever, before the lower court trial. What’s more, applicants for the State ID card may still have to undergo the rigorous PennDOT application process and then get rejected, before qualifying for application for the State ID. According to the Commissioner of the Bureau of Commissions, Elections and Legislations, applicants who are unable to get a PennDOT photo ID will have the opportunity to call the Department of State to “begin the process of obtaining the alternative card.” Yeah, that sounds really “easy”.
Let’s pause for a moment to digest what this means.
1) The Voter ID Law requires you to show ID, probably PennDOT ID
2) The Voter ID Law makes getting the PennDOT easier with its “Easy ID” provision
3) However, PennDOT does not comply with these easier requirements in the “Easy ID” provision, and keeps the same requirements for getting PennDOT ID (for good reasons, like commercial airport security)
4) Republican Department of State is in the process of offering alternative, Department of State-issued State ID
5) For State ID, you still have to undergo the entire PennDOT ID application process
6) For State ID, you have to then get rejected during your PennDOT ID application process
7) After rejection, then you get a number to call to contact Department of State to begin the State ID application process.
The Conflicts and Error in Lower Court’s Reasoning
Unsurprisingly, in the face of all this, voters’ rights groups challenged the law as invalid and asked for an injunction to prevent the Law from taking effect. The lower court refused, stating that its belief was that Pennsylvania government efforts to educate the voting public, coupled with remedial measures like the one just outlined above, would be sufficient to prevent any potential voter disenfranchisement.
Well, the Supreme Court smacked down that conclusion in its opinion, writing that, while it didn’t doubt the good faith efforts of State employees, the Court wasn’t about to let glowing State employee testimony settle the question of whether voters could be disenfranchised by the Voter ID Law. The Court stated that it was “not satisfied” with the lower court’s “mere predictive judgment” that the state’s education efforts and remedial measures would take care of the potential problem, in light of the daunting issue of implementing such widespread change in such a short period of time (the Voter ID Law was enacted only in March 2012, after all), all the while making sure that no one gets disenfranchised.
Although die-hard liberals like me would have liked the Court to issue an injunction preventing the Law from taking effect, the law student part of me has to admire the inherent fairness of what the Pennsylvania Supreme Court did. If you can agree, in theory, that requiring people to show photo ID before voting is constitutional, as long as everyone who wants a photo ID can get one before the next important election, then theoretically there is nothing wrong with the Voter ID Law.
The Court noted that the problem arises when the State of Pennsylvania attempts to ram through this new Voter ID procedure, the (unspoken and hoped-for) result being that thousands, tens of thousands, or hundreds of thousands of Democratic voters won’t be able to secure appropriate ID in time to vote in this year’s general election. Even though the Law may be constitutional in the long run, if implemented properly and reasonable education is combined with reasonable means for people to procure ID, in the short-run what the State is attempting to do is potentially constitutionally defective.
So given that, in the long run, this Law may constitutionally check out as legit, the Court sent the case back down to the lower court with some instructions. First, find out what’s up with this State ID initiative. Is it easy enough to get one of these State IDs that the “Easy ID” provision of the Voter ID Law is satisfied and disenfranchisement won’t occur because people can get the proper ID to vote? (The Court made it clear in its opinion that offering State ID only after you jump through all the hoops to get your PennDOT and then get rejected, doesn’t count as “easy enough”) If it’s not easy enough, or if the State ID initiative isn’t even off the ground yet, or not working well, the lower court has to issue an injunction. (Also, the Supreme Court stated that if the judge on the lower court has changed his mind, he must issue an injunction. I won’t hold my breath.)
From a perspective that values our representative-based democracy, you have to admire the Supreme Court’s restraint in its decision. Rather than block a law which was passed by democratically-elected officials in the legislature, the Court focused like a laser on the constitutional issue: could this Law’s hasty implementation disenfranchise vulnerable voters? If so, what’s being done to prevent that? State ID? Ok, well then, will State ID inoculate the voters against disenfranchisement by providing an easy solution to getting appropriate ID? If so, great! Let the Law stand. If not, block the Law. Even though the Supreme Court didn’t come right out and say it, it seems the Court knows that the State ID initiative will be insufficient to protect the rights of the sheer number of potential voters who will be disenfranchised by the new Law.
Through its opinion, the Court has cleverly crafted a solution that will result in either the Law being blocked from taking effect, or will result in a solution that will take away all the victory from Republicans, because anyone who wants appropriate ID will have the opportunity to get one, thus ensuring them the ability to vote.
Moreover, by gently highlighting the doubts that the Supreme Court has about the voter education efforts and remedial measures to be implemented, the Supreme Court subtly called attention to the massive and craven power play in which the Republicans have engaged to suppress the vote in Pennsylvania.
Let’s be frank, this was the Republicans’ plan from the beginning. There’s no possible way that implementing such a massive new piece of legislation in a few months’ time could possibly ensure that no eligible voter is disenfranchised. That’s actually the unspoken-and whole-point. Unspoken and hidden away, beneath a series of impediments working together to form a gauntlet through which many voters in the most vulnerable groups in Pennsylvania will not successfully navigate in time to vote on November 6.
Need PennDOT ID? It’s easy, just apply and sign this statement. Oh what? You mean you have to show embossed birth certificate, social security card, and two pieces of documentation proving current residence? That’s OK, no problem! Just apply for this Department of State-issued State ID! Wait, we’re working on that right now. Don’t worry – we’ll make it available. But hang on – you have to first go through the PennDOT ID application process first. You know, the one where you have to show your birth certificate, social – yeah, that one. You got rejected? Okay, then, here’s a number to call. Just call the Department of State and begin the process to get your State-issued State ID. I’m sure the wait won’t be too- Oh looky here! President Romney wins Pennsylvania. Have a nice life, you 47% moochers!