AP: ” Pennsylvania’s state Supreme Court justices on Thursday aggressively questioned whether a politically charged law requiring photo identification from each voter should take effect for the Nov. 6 presidential election and whether it guarantees the right to vote….The six justices , three Republicans and three Democrats , saved their most aggressive questions for lawyers representing the state and Republican Gov. Tom Corbett, who signed the law in March. A couple exchanges became testy.”
Huffington Post: “Justice Thomas Saylor, a Republican, questioned the state’s lawyers about whether the law guarantees that every registered voter will be able to get an ID, or at least cast a vote. Justice Debra Todd, a Democrat, flatly suggested the law is unconstitutional. Justice Seamus McCaffrey, also a Democrat, pushed the state’s lawyers to explain the Republican rationale used to pass the law and whether the Legislature deserves deference for its decision to pass a politically charged law that tramples the rights of citizens.”
When the trial court released its opinion back in mid-August, I was nearly certain his decision on the preliminary injunction would be upheld on appeal (despite my deep misgivings about PA trying to roll out a brand new law, and to get ids into the hands of 750,000 voters without them, by November). I based that upon the very deferential standard for preliminary injunctions as well as the judge’s careful opinion and rejection of much of the plaintiffs’ evidence about the burden of the law.
But it now appears that the law could well be blocked, at least for use in this election. It sounds like even the Republican Justices on the Court share my concern about whether the state is really ready to implement this just over 50 days. Putting aside the merits of the law generally, it is always a bad idea to roll out new laws for a presidential election—like doing the premiere of your play straight on Broadway.
If the Justices want to issue a quick decision, they can reverse the preliminary injunction, pointing to the evidence of these difficulties, and not rule on the underlying question whether the law violates the state constitution once it can be fully implemented. That would have the effect of sending the case back for a full trial, followed by another eventual appeal—without the press of the election and the intense national attention.