The Pennsylvania voter identification law has thankfully been delayed until after next month’s election.  Although Pennsylvania is now largely predicted to go to Obama, the case could have repercussions further afield.  The New York Times had an interesting write up that can found at their website.  Take a look at this excerpt:

“A Pennsylvania judge on Tuesday delayed full implementation of a highly contested state law requiring strict photographic identification to vote in next month’s election, saying that the authorities had not done enough to ensure that potential voters had access to the new documents…”

“…Pennsylvania is one of a number of swing states that could make the difference in the presidential race between President Obama and Mitt Romney, the Republican candidate, especially if the count is close. Increasingly, however, Mr. Obama, who won Pennsylvania in 2008, has been pulling far ahead of Mr. Romney in key states. A Quinnipiac/New York Times/CBS News poll last week showed Mr. Obama ahead in Pennsylvania by 12 points.”

Also, Rick Hasen at Election Law Blog, who is a respected election reformer, had the following to add:

But the judge enjoined only part of the law. UPDATE and CORRECTION: The state may still ask for id.  But it must accept a ballot even if the voter fails to have id.  It will not be necessary to cast a provisional ballot.  [This is a correction from en earlier post.]  This may cause confusion at the polls, as the state will still have poll workers ask for id, even though a voter can vote without it.

The state may appeal. I expect any state argument along these lines to be rejected by the state Supreme Court, given the last ruling.

And after the election there will be a full trial on whether or not to permanently enjoin the law.  I predict that after this election, the PA courts will in fact uphold the voter id law, perhaps even on a unanimous vote of the state Supreme Court.

Also, there is a pdf of the judge’s order.  Here is an interesting section of the judge’s order:

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Viviette Applewhite; Wilola :
Shinholster Lee; Grover :
Freeland; Gloria Cuttino; :
Nadine Marsh; Dorothy :
Barksdale; Bea Bookler; :
Joyce Block; Henrietta Kay :
Dickerson; Devra Mirel (“Asher”) :
Schor; the League of Women Voters :
of Pennsylvania; National Association :
for the Advancement of Colored :
People, Pennsylvania State Conference; :
Homeless Advocacy Project, :
Petitioners :
:
v. : No. 330 M.D. 2012
:
The Commonwealth of Pennsylvania; : HEARD: September 25, 2012
Thomas W. Corbett, in his capacity :
as Governor; Carole Aichele, in her :
capacity as Secretary of the :
Commonwealth, :
Respondents :

Dangerous Election Law by JUDGE SIMPSON FILED: October 2, 2012

SUPPLEMENTAL DETERMINATION
on APPLICATION for PRELIMINARY INJUNCTION

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.

From the time of initial deployment on August 27, 2012, until the first day of the hearing, September 25, 2012, the DOS ID was issued as a “safety net,” that is, it was issued only when the more rigorous procedures for secure PennDOT IDs could not be satisfied. The Supreme Court, however, described this situation as “still contrary to the Law’s liberal access requirement ….” Applewhite, ___ Pa. at ___, ___ A.3d at ___; slip op. at 4.The new procedure proposed the first day of the hearing will cure this deficiency if implemented as described. As believably explained by Kurt Myers, Deputy Secretary for Transportation, the new procedure will eliminate the so-called “exhaustion” requirement, will eliminate the requirement for two proofs of  residency, and will result in the DOS ID no longer being a “safety net” product.

Additional proposed changes credibly described by Shannon Royer, Deputy Secretary for the Commonwealth, will obviate the necessity for a second trip to a PennDOT Drivers Licensing Center to obtain the DOS ID.I have three problems with the testimony regarding the proposed changes. First and foremost, the evidence is similar in kind to the prospective “assurances of government officials” testimony which the Supreme Court found an unsatisfactory basis for a “predictive judgment.” Id. at ___, ___ A.3d at ___, slip op. at 6. Second, the proposed changes are to occur about five weeks before the general election, and I question whether sufficient time now remains to attain the goal of liberal access. Third, the proposed changes are accompanied by candid admissions by government officials that any new deployment will reveal 4 unforeseen problems which impede implementation.

These admissions were corroborated by anecdotal evidence offered by Petitioners regarding the initial rollout of the DOS IDs in August. For these reasons, I cannot conclude the proposed changes cure the deficiency in liberal access identified by the Supreme Court. Nevertheless, acknowledgement should be made of improvements in system design by government officials since initial deployment of the DOS ID. These include a more streamlined procedure for validating birth dates, improved scheduling of individuals manning the DOS Help Desk, a more structured referral system for complex Help Desk inquiries, and some extended hours at PennDOT Drivers Licensing Centers, to name a few. Outreach and voter education efforts by PennDOT and DOS, believably described by Deputy Secretaries Myers and Royer, are extensive, surpassing predictions made in the earlier hearing. These existing structural improvements, together with the proposed enhanced access to the DOS ID and additional time, will place the Commonwealth in a better position going forward.

Disenfranchisement

After the first hearing, I made the following preliminary determination: Although not necessary for preliminary injunction purposes, my estimate of the percentage of registered voters who did not have photo ID as of June, 2012, is somewhat more than 1% and significantly less than 9%, based on the testimony of Rebecca K. Oyler and inferences favorable to Respondents. I rejected Petitioners’ attempts to inflate the numbers in various ways.5 Applewhite v. Commonwealth, No. 330 M.D. 2012, 2012 WL 3332376, at *3, n.16 (Pa. Cmwlth. Aug. 15, 2012) (unreported). As of the most recent hearing, between 9300 and 9500 PennDOT IDs for voting have been issued. Also, between 1300 and 1350 DOS IDs have been issued. Further, PennDOT statistics for issuance of initial drivers’ licenses and initial photo IDs for the period March, 2012, through September, 2012, show a slight increase over the same period in 2011. Pet’rs’ Ex. 136. The increase is in the magnitude of 1000 to 2000 a month. Id.I expected more photo IDs to have been issued by this time. For this reason, I accept Petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed. I reject Respondents’ argument that my initial estimate was overblown.

Consequently, I am not still convinced in my 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. Under these circumstances, I am obliged to enter a preliminary injunction. Applewhite, ___ Pa. at ___, ___ A.3d at ___, slip op. at 7.

Dangerous Election Law: Form of Preliminary Injunction

At my invitation, the parties offered argument on the form of a preliminary injunction. Importantly, Petitioners concede that parts of Act 18 6 (relating to proof of identification for absentee voting) do not cause injury and may be implemented. Therefore, they no longer seek a total ban on implementation of Act 18. Also, Respondents concede that procedures for deployment of the DOS IDs did not conform to the liberal access requirement as explained by the Supreme Court and that some injunction relating to that activity is appropriate. Respondents highlight changes already made and others recently proposed. A preliminary injunction must be crafted so as to be no broader than is necessary for the petitioner’s interim protection.