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State Supreme Court sends voter ID case back to Commonwealth Court for review

| Tuesday, Sept. 18, 2012, 1:47 p.m.
THE PATRIOT-NEWS
Bishop A.E. Sullivan, President of the Interdenominational Ministers Conference, speaks during the NAACP Voter ID rally in front of the Pennsylvania State Capitol Tuesday, July 24, 2012. John C. Whitehead | The Patriot-News

HARRISBURG — The state Supreme Court declined to kill Pennsylvania's voter ID law in a 4-2 ruling Tuesday but sent a strong signal that it won't be in effect for the November election, legal analysts said.

Opponents of the law declared victory when the Supreme Court sent the voter ID challenge back to Commonwealth Court, which last month declined to block it. The ruling gives the lower court just two weeks to decide whether the law meets a strict set of standards, including that every voter in the state who wants the required photo identification will be able to get one in time and that no one will be disenfranchised.

“Bottom line: I think this decision means that the voter ID law is dead meat, at least for this election,” said John Burkoff, law professor at the University of Pittsburgh Law School.

Commonwealth Court Judge Robert Simpson, who ruled in August against delaying the law's implementation, is likely to get the case again and has until Oct. 2 to deliver his opinion. The two dissenters on the high court — Democrats Debra Todd and Seamus McCaffery — wanted the court to block the law itself. But the result likely will be the same, Duquesne University law professor Bruce Ledewitz said.

“This is as strong a hint as an appellate court can give,” Ledewitz said.

The law, passed by a Republican-controlled General Assembly and signed by GOP Gov. Tom Corbett in March, remains in effect, noted Matthew Keeler, spokesman for the Department of State, which oversees elections. “We are confident every voter who needs an ID will be able to get one by the election in November,” Keeler said. In addition to driver's licenses, acceptable photo IDs include university identification, military IDs and photo cards issued by nursing homes and government agencies.

The court questioned whether the state was living up to the law's requirements, noting that PennDOT resisted handing out photo IDs without proof that the person was who they said they were. The court said PennDOT's concerns were valid — state IDs can be used to board airliners, it noted — but that they might not follow the law's requirement of “liberal access” to IDs.

In deciding whether the state can meet its obligations, Simpson is going to have to rely on more than “the assurances of government officials,” the court's anonymous majority opinion said.

“We think the commonwealth is going to have trouble no matter what. It's a very high standard that the Pennsylvania Supreme Court has imposed, and correctly so given how few days are remaining before the November election,” said David Gersh, a lawyer with the firm Arnold & Porter, who argued against the law.

The partisan debate over the law, which garnered national attention, has pitted mostly Republicans who favor it against mostly Democrats.

Opponents claim the requirement was onerous for low-income people, minorities and seniors who might not have photo identification. Supporters say the law would ensure integrity of the voting process.

“It's good no one is questioning the constitutionality or legality of voter ID,” said Stephen Miskin, spokesman for House Republicans.

Miskin said they're confident Simpson will find that any voter who wants ID can get it, but Democrats argue PennDOT is struggling to meet demand.

“The fact is that PennDOT already could not come close to handling the number of people without IDs in Pennsylvania between now and Nov. 6th,” said state Sen. Daylin Leach, D-Montgomery County. “The only correct course of action is to enjoin the law for this election cycle and give the state more time to get everyone the IDs they need. It appears that this is the direction which the Supreme Court, cautiously, is heading.”

Todd and McCaffery wanted the court to get there faster.

“The eyes of the nation are upon us, and this court has chosen to punt rather than to act,” Todd wrote in her dissent. McCaffery's dissent noted House Majority Leader Mike Turzai's comments to a Republican gathering that the law would help Republican presidential nominee Mitt Romney win the state, saying it was evidence that the push to implement the law before November is “purely political.”

If the third Democrat on the high court, Justice Max Baer, had joined Todd and McCaffery in the dissent, the resulting 3-3 tie would have in effect upheld the Commonwealth Court decision. Republican Justice Joan Orie Melvin is suspended from decisions while she awaits trial in Allegheny County on corruption charges.

Commonwealth Court will issue an order, possibly as early as Wednesday, laying out how the case will be handled and what the court must decide, said Deputy Prothonotary John Moyer. It's very likely it will be assigned to a single judge and it's a safe bet that will be Simpson, Moyer said. But it may depend on other factors including scheduling.

Brad Bumsted is state Capitol reporter for Trib Total Media. He can be reached at bbumsted@tribweb.com. Mike Wereschagin is a staff writer for Trib Total Media. He can be reached at 412-320-7900 or mwereschagin@tribweb.com.

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