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Uncertainty on Supreme Court, federal probe could threaten voter ID law

By   /   August 2, 2012  /   No Comments

The NAACP, joined by labor unions, religious groups, voter's rights groups and several state representatives, held a rally July 24 outside the Capitol to protest the voter ID law. Photo by Melissa Daniels

By Melissa Daniels | PA Independent

HARRISBURG — With 95 days until Election Day, the constitutionality of Pennsylvania’s voter ID law remains in limbo.

Though the first round of arguments for and against Pennsylvania’s voter ID law wrapped up Thursday, future hearings, investigations and logistical issues loom in the face of the court’s decision.

Commonwealth Court Judge Robert Simpson said he expects to hand down a decision in about two weeks. But an appeal from either side — the state or the plaintiffs — is possible, pushing the case up the ladder to the state Supreme Court.

Not only is there a time crunch, but a majority decision could be difficult to reach with an even number of justices, if the court agrees to hear the case.

The state Supreme Court is down to six members: three Republicans and three Democrats.

Though there’s usually seven justices on the bench, the court became an even split when Justice Joan Orie Melvin was suspended earlier this year. Melvin faces corruption charges related to the conviction of her sister, former state Sen. Jane Orie, R-Allegheny.

Court vacancies are filled by a governor’s appointment that requires a two-thirds majority of the state Senate to pass. That justice would serve until a replacement is elected and seated.

But in the case of a tie, a lower court’s decision — in this case, the Commonwealth Court — would be the final ruling.

Wes Oliver, associate professor of law with Duquesne University School of Law in Pittsburgh, said it’s rare that a state Supreme Court stands at a stalemate and lets a lower court’s decision stick.

To avoid a tie, a middle-leaning member will cobble a remedy that at least four can live with, Oliver said, rather than let the lower court decision stand.

“That’s a real challenge to the integrity and legitimacy of the higher court,” he said.

Witold Walczak, the attorney for the plaintiffs and legal director for the American Civil Liberties Union of Pennsylvania, said appeals are likely, but he isn’t concerned about a decision being made in time for Election Day.

“The Supreme Court is used to ruling on election day matters on an emergency basis,” Walczak said to PA Independent after his closing argument.

The plaintiffs argue that the law, which requires a voter show a photo ID before casting a ballot, infringes on the fundamental right to vote protected by the Pennsylvania Constitution. They argue it disenfranchises minority groups — the poor, the elderly and minorities — who may have difficulty obtaining an ID.

But regardless of the case’s outcome in the courts, the feds also may get their say. The Justice Department is examining whether the law disenfranchises minorities.

Earlier this year, the department struck down a voter ID law in Texas, because a disproportionate amount of Hispanics did not have proper identification and would be ineligible to vote.

Even if the law is declared constitutional in time for this year’s election, some worry about potential backfire. Walczak said confusion over an ineligible voter would gum up long lines, turning away potential voters who have the right identification.

“Any way you slice it or dice it, it’s already a mess,” Walczak said.

Patrick Cawley, senior deputy attorney general, said during closing arguments that state officials are working “to ensure no one will be ignorant of the law’s requirements by Election Day.”

The Department of State announced in July that it would create new identification cards for those who lack documents required for a non-driver’s license ID from the state Department of Transportation.

State figures say around 750,000 Pennsylvanians do not have a PennDOT-issued photo ID that could be used for voting purposes, like a driver’s license or non-driver’s state ID. But the $1 million set aside for new IDs would cover about 85,000.

Proponents said the law brings integrity to the voting process, combating potential fraud and illegitimate voting. Cawley said the constitution protects the right to vote, not sparing inconveniences like having difficulty obtaining documents in order to get a valid ID.

The statute is neutral and non-discriminatory, he said. A photo ID, Cawley said, is used “in so many facets or our modern life.”

But whether IDs will be required to enter Pennsylvania polls this November is still unknown, and the clock is ticking.


Melissa formerly served as staff reporter for Watchdog.org.