Court rules no voter ID at Pa.'s polls Nov. 6
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HARRISBURG -- Pennsylvania voters will be allowed to cast ballots without showing photo identification next month under a Commonwealth Court decision issued Tuesday.
After surviving Democratic opposition in the Legislature and the earlier stages of a legal challenge, the state's new voter ID law was stripped of its teeth five weeks before Election Day. Judge Robert Simpson, who was asked by the Pennsylvania Supreme Court to reconsider his August decision against stopping the law, on Tuesday barred the state from requiring voters without acceptable identification to vote by a provisional ballot on Nov. 6. Those provisional ballots would have counted only if they later verified their identity.
Judge Simpson wrote that his injunction would have the effect of extending through the general election a transition period in which voters may be asked for identification but could vote without it. The order allows a continuation of advertising about the ID requirement while calling for a trial on the question of permanently stopping the law.
"Basically we're in a holding pattern," said Ken Gormley, dean of the Duquesne University School of Law. "He is not telling the state that they have to halt their educational efforts, and he's not prohibiting election officials from asking for ID. But the bottom line is that regardless of what ID anyone presents, they're going to be able to vote just as they have in the past."
Gov. Tom Corbett, who signed the voter identification measure into law in March, said he had not decided if he would appeal the injunction for the November election but suggested the administration might not.
"As it comes to a preliminary injunction, no final decision has been made," he said. "But you can see where we're probably leaning."
The governor's spokesman, Kevin Harley, said he was referring to a decision not to appeal the ruling.
In its order to reconsider the law, the Supreme Court had focused on efforts to implement the requirement before the November election. Judge Simpson wrote in the opinion issued Tuesday he had expected the state to issue more new driver licenses and photo identification cards than it has since the law took effect.
"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," he wrote.
The decision meant a change in plans for voting officials in Allegheny County, where the elections division had just hours to revise instructions for an early afternoon voter ID training session for election judges and inspectors. County Executive Rich Fitzgerald said Community College of Allegheny County branches will cease issuing a photo ID they had begun dispensing to eligible voters.
Attorneys who challenged the law celebrated the decision allowing voters without acceptable identification to vote with regular ballots, rather than, as Judge Simpson had suggested during the hearing, some form of provisional ballot.
"Voters who don't have ID on Election Day will be able to vote with a regular ballot as opposed to a provisional ballot," said Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania. "We actually think that's a huge victory."
But opponents of the law cautioned the judge's decision to allow the state to continue advertising about the photo identification requirement could confuse voters about what is required in November. David Gersch, an attorney with the challengers, said they would discuss the educational campaign with the administration.
"We like to think at the end of the day they're not going to be interested in having ads and educational materials out there that are incorrect," he said.
Matthew Keeler, a spokesman for the Department of State, said the department will continue its education efforts and "make the tweaks we need" to ensure voters understand what will happen at the polls.
"We'll update it so individuals understand come the November election -- just like the soft roll-out -- they will not be required but they will be requested to show a form of ID," he said.
Republicans passed the voter ID measure through the Legislature over vocal opposition from Democrats, and Steve Miskin, a spokesman for House Republicans, pointed to the temporary nature of the injunction as a victory.
"It's unfortunate that it took going to the Supreme Court for the critics to acknowledge the constitutionality of requiring identification for voters," he said. "Ultimately, that's what's going to happen. Voter integrity was never about just one election."
Some Democrats said they feared voters would not try to vote because they incorrectly believe they lack the needed identification.
"There has been so much controversy about this law, I still believe that some voters will not come out to vote fearing that they do not have the proper ID and therefore be disenfranchised," Senate Minority Leader Jay Costa, D-Forest Hills, said in a statement.
The decision sets the stage for the shaping of a permanent voter identification policy. Mr. Gormley, the Duquesne law school dean, said the opinions of the state Supreme Court and Commonwealth Court suggest the state Constitution allows some form of voter ID law.
"I would not rule out this going back to the Supreme Court on the permanent injunction issue to address whether this law in its current form passes constitutional muster or whether the Legislature needs to clean it up further before it's ready for prime time," he said.
The Supreme Court had raised concerns about the state's ability to implement parts of the law requiring free identification cards for voters without them.
Challengers to the law have said requiring photo identification could be constitutional if it does not discount the ballot of any rightful voter.
"In theory, a photo ID law could be constitutional. It depends how it's set up and whether every voter can meet the condition of being able to vote," Mr. Walczak said. "The devil is in the details, and those details will be litigated after the election at some point."
First Published October 3, 2012 12:00 am