The Pennsylvania trial court judge who has been presiding over challenges to the state’s new Voter ID law issued a ruling today that effectively bars the law from being enforced during the 2012 elections:
A Pennsylvania judge on Tuesday delayed full implementation of a highly contested state law requiring strict photographic identification to vote in next month’s election, saying that the authorities had not done enough to ensure that potential voters had access to the new documents.
The judge, Robert Simpson, who upheld the law in August when it was challenged by liberal and civil rights groups, was instructed by the state’s Supreme Court two weeks ago to hold further hearings. He was told to focus on the question of whether enough had been done to ensure “liberal access” to the picture ID cards or alternatives.
Judge Simpson said in his Tuesday ruling that for the presidential election of Nov. 6, voters in Pennsylvania could be asked to produce the newly required photo IDs, but if they did not have them could still go ahead and vote. The decision could still be appealed to the state Supreme Court.
“While we’re happy that voters in Pennsylvania will not be turned away if they do not have an ID, we are concerned that the ruling will allow election workers to ask for ID at the polls and this could cause confusion,” said Penda D. Hair, co-director of Advancement Project, one of the groups that challenged the law. “This injunction serves as a mere Band-Aid for the law’s inherent problems, not an effective remedy.”
The Pennsylvania law, passed in the spring without any Democratic support, is one of 11 similar laws around the country passed by Republican-dominated legislatures. The laws’ backers say they are trying to ensure the integrity of the electoral process by preventing fraud. But Democrats accuse them of seeking to suppress the votes of the poor and members of minority groups who tend to have neither the needed ID nor the means to go to state offices and obtain one and who tend to vote Democratic.
As I noted last week after the evidentiary hearing that Judge Simpson held in this matter, there were signs that an injunction barring application of the statute for this year was likely to be granted, especially given the standard that the Pennsylvania Supreme Court had set in its ruling. What the Judge effectively did here was bar enforcement of that part of the law that provided that anyone who came to vote without proper identification would be required to cast a provisional ballot and later prove their identity to the local elections board. Instead, at least for November’s election, poll workers can still ask for identification but must still let someone vote even if they don’t have it.
During last week’s hearing, state officials had announced a number of changes to the procedure for issuing identification that were designed to make it easier for people to obtain them. Judge Simpson seems to be quite pleased with those reforms, but his main concern is that there isn’t enough time to implement them before the election without the risk that people will fall through the cracks:
I have three problems with the testimony regarding the proposed changes. First and foremost, the evidence is similar in kind to the prospective “assurances of government officials” testimony which the Supreme Court found an unsatisfactory basis for a “predictive judgment.” Id. at ___, ___ A.3d at ___, slip op. at 6. Second, the proposed changes are to occur about five weeks before the general election, and I question whether sufficient time now remains to attain the goal of liberal access. Third, the proposed changes are accompanied by candid admissions by government officials that any new deployment will reveal unforeseen problems which impede implementation. These admissions were corroborated by anecdotal evidence offered by Petitioners regarding the initial roll-out of the DOS IDs in August. For these reasons, I cannot conclude the proposed changes cure the deficiency in liberal access identified by the Supreme Court
Nevertheless, acknowledgement should be made of improvements in system design by government officials since initial deployment of the DOS ID. These include a more streamlined procedure for validating birth dates, improved scheduling of individuals manning the DOS Help Desk, a more structured referral system for complex Help Desk inquiries, and some extended hours at PennDOT Drivers Licensing Centers, to name a few. Outreach and voter education efforts by PennDOT and DOS, believably described by Deputy Secretaries Myers and Royer, are extensive, surpassing predictions made in the earlier hearing. These existing structural improvements, together with the proposed enhanced access to the DOS ID and additional time, will place the Commonwealth in a better position going forward.
(…)
As of the most recent hearing, between 9300 and 9500 PennDOT IDs for voting have been issued. Also, between 1300 and 1350 DOS IDs have been issued. Further, PennDOT statistics for issuance of initial drivers’ licenses and initial photo IDs for the period March, 2012, through September, 2012, show a slight increase over the same period in 2011. Pet’rs’ Ex. 136. The increase is in the magnitude of 1000 to 2000 a month. Id.
I expected more photo IDs to have been issued by this time. For this reason, I accept Petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed. I reject Respondents’ argument that my initial estimate was overblown.
Consequently, I am not still convinced in my 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. Under these circumstances, I am obliged to enter a preliminary injunction.
There are two points worth observing here. First, I think the Judge is likely correct that five weeks is insufficient time to fairly implement the new procedures that the state testified to last week. Employees will need to be education on the new procedures, regulations may need to be changed, and voters will need to be educated about what they need to do and how the new procedures differ from how things were done previously. Second, the Judge’s language strikes me as a strong sign that he is likely to uphold the law when this case moves on the Permanent Injunction phase, which may not occur until later this year or early 2013. For purposes of the 2012 election, though, there clearly isn’t enough time to implement the law properly. For that reason, I think the Judge got it right here, but I also strongly suspect that the law will ultimately be upheld.
David Weigel, who has been covering this case since the trial started characterizes this as a defeat for the Pennsylvania Republicans who backed the law. I suppose that’s the case in the short term, but is, as I suspect, the law is ultimately upheld, it will be a temporary loss at most.
Here’s the opinion:
