The PA Supreme Court issued their ruling a couple of hours ago, and the question of the day has definitely been “what does this mean?” Rather than upholding or striking down the voter ID law, the Supreme Court has vacated the lower court’s ruling against an injunction, and sent the case back down to Judge Simpson.
So what does this mean? It isn’t a win, but we think it’s a positive development.
Firstly, the Supreme Court’s instructions shift the burden of proof from our plaintiffs to the state. This is significant. Secondly, it establishes a very high standard that the state must meet in order to uphold the voter ID law – a standard that, in our opinion, the state cannot meet. In reevaluating the case, the Supreme Court has instructed Judge Simpson to focus on two questions. If the answer to either of those questions is “no,” the Supreme Court says Judge Simpson is obliged to issue an injunction against the voter ID law. Those two questions, with brief explanations:
1) Does the state of Pennsylvania’s implementation of the voter ID law conform to the requirements the law set forth, particularly in the state’s distribution of voter ID to eligible voters?
According to Act 18, the voter ID law, PennDOT is required to issue an ID at no cost to any registered voter who signs an oath that says he or she does not have the ID they require for voting purposes. No further requirements – such as showing a birth certificate or social security card – are required. The Supreme Court calls this “a liberal access standard.” In court, the state’s attorneys pointed out that PenDOT cannot, according to Homeland Security requirements, comply by this requirement. Instead, the state created the Department of State ID card, a new form of voter ID specifically intended for voting purposes.
At the time Judge Simpson heard argument, the Department of State ID was merely theoretical. State officials detailed their plans to roll out the ID, but it was not yet in existence. Now, Judge Simpson will have the opportunity to look at the reality of that ID card and its distribution, along with the state’s efforts to educate and inform the public, and decide whether the liberal access standard in Act 18 is being met. We do not believe it is.
Furthermore, the Supreme Court stated in their ruling that they are not satisfied with “a mere predictive judgment based primarily on the assurances of government officials.” In other words, it’s no longer good enough for the state to testify about what they plan to do. They must demonstrate that what they are presently doing is enough to satisfy the requirements of Act 18.
2) Can Judge Simpson say, in his judgement, that no voters will be disenfranchised on Election Day?
In their ruling, the Supreme Court establishes as fact several points that have at various times been disputed: One, that voting is a fundamental right. This was something the state disputed in its argument. Two, that some number of eligible voters are at risk of being disenfranchised by this law. Three, that any number of disenfranchised voters represent harm to the electoral process. Their instruction to Judge Simpson is very clear, and sets a very high standard: If, in his judgement, there is doubt that voters may be disenfranchised, he is obliged to enjoin the law.
In his ruling, Judge Simpson did not hold voting to the standard of a fundamental right, and went so far as to point out that, if the standard were different, he may have ruled differently. The Supreme Court has clearly instructed him to apply a very high standard. If there is doubt, Judge Simpson must enjoin.
And is there doubt? Well, even by the State of Pennsylvania’s lowest possible estimate, there are 100,000 registered voters without PennDOT ID. Our scientific figures put that at more than one million, but let’s use the state’s lowest estimate for the sake of argument. Since the state started giving out various forms of ID for voting purposes in March, they have distributed only 9,000 IDs. Since our trial, they have distributed roughly 6,000 – less than 1,000 per week. In order to reach the remaining 91,000 voters (again, that is a minimum estimate) PennDOT would need to increase that number to 13,000 IDs distributed per week.
The bottom line is that the burden is now on the state of Pennsylvania to show that they are meeting the ID requirements of the voter ID law, and to convince Judge Simpson that there will be no one disenfranchised by this law on Election Day. That is a very high standard, and not one we believe the government can meet.
Judge Simpson is instructed to issue a ruling on or before October 2. The Supreme Court also made clear that they are prepared to hear any further appeal to that decision, and that those rulings will also be expedited.