Today the Supreme Court of Pennsylvania issued a 4-2 per curiam (unsigned) decision and two dissenting statements, sending the challenge to the state’s new tough voter i.d. law back to the trial court for more factfinding.  The four Justices in the majority (3 Republicans and a Democrat) want the trial court to take a second look at whether Pennsylvania can actually get new state-issued i.d.’s into the hands of voters before the November election.  The majority strongly suggested that the evidence demonstrates the state cannot do so, and it has directed the trial court to put the voter id law on hold for this election if voters will be disenfranchised by the new law.  (The two dissenters believe there is already enough evidence in the record to conclude that Pa. officials cannot get the i.d.’s into the hands of officials in time for this election and would therefore hold the trial court abused its discretion in not preliminarily enjoining application of the law.)

Here’s the operative instruction to the trial court from the Supreme Court majority:

Thus, we will return the matter to the Commonwealth Court to make a present assessment of the actual availability of the alternate identification cards on a developed record in light of the experience since the time the cards became available. In this regard, the court is to consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards. If they do not, or if the Commonwealth Court is not still convinced in its 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, that court is obliged to enter a preliminary injunction.

(my emphasis)

The decision, and division, on the Court is quite odd.

First, it seems very likely that Pa.will have an identification requirement in place for the 2016 presidential election. As one of the two dissenters (joined by the other dissenter) wrote, “I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing Act 18 prior to the November election is purely political.”  It looks like all the Justices (perhaps based upon a concession of David Gersch at the oral argument) will vote that a fairly and fully implemented voter id law does not violate the state constitution.

Second, it seems that all the Pa. Justices agree that there are serious doubts about whether PennDOT can actually implement voter id in time for November—it appears many people, including what the majority calls the most “vulnerable” in the state (the elderly, disabled, and financially disadvantaged), still lack the id and cannot get the i.d.’s before Election Day. This is not a newly discovered problem.  Back on July 31 I had a post entitled: Pa Voter ID Law Just Not Ready for Prime Time. And the new order looks to impose a very tough standard for PA to meet: “no voter disenfranchisement”

So put 1 and 2 together, and it looks like the Court could have crafted a narrow unanimous opinion that said (1) the Pa. law, when fully implemented, is likely to be constitutional; but (2) the trial court abused its discretion in not temporarily barring the use of the i.d. requirement until the state could show it could get i.d.’s into the hands of all voters that need them.

So what happened?  Why give the trial court another chance to reconsider the evidence and issue a ruling by October 2 subject to a second expedited appeal to be heard just days before election day, something that will present a recipe for confusion of voters and poll workers at the polls no matter what eventually happens?

I can think of a few unsatisfying possibilities. (1) The Supreme Court wanted to give the trial court a chance to fix its own mess. (2) The Justices wanted to give the state one more chance to see if it could prove it could get its act together before the election. (3) This was some sort of compromise among the 4 Justices in the majority.

None of these convince me as to the reason for the remand, but I cannot think of any other possibilities.  Nor does it seem justified to stretch out this uncertainty into the few weeks before election day.  That does no one any good.

(For a news roundup of the case, see Howard Bashman’s post.)