The Commonwealth is challenging the order permanently enjoining enforcement of the Photo ID Law.

The Commonwealth filed a Post-Trial Motion, asking the Commonwealth Court to vacate its January 17, 2014, Order and enter judgment in favor of the Commonwealth.  In other words, the Commonwealth is arguing that Judge McGinley erred when he concluded that the Photo ID Law violates the PA Constitution and is asking him to reverse himself.

2 Comments

Filed under Uncategorized

Commonwealth Court Declares Pennsylvania’s Photo ID Law Unconstitutional

On January 17, 2014, in a 103 page opinion, the Honorable Bernard L. McGinley of Pennsylvania’s Commonwealth Court held that, based on the record created during the trial over which he presided last year, the section of Pennsylvania’s Photo ID Law that requires voters to show photo ID when they vote in-person violates the Pennsylvania Constitution.  Therefore, Judge McGinley permanently enjoined the Commonwealth from enforcing those provisions of the law.  

The Commonwealth likely will seek to have the entire Commonwealth Court review the decision and/or appeal to the Pennsylvania Supreme Court.  For the time being though, voters in Pennsylvania are not required to show photo ID when they vote.

 

Leave a comment

Filed under Uncategorized

Injunction Barring Enforcement of Photo ID Law Extended Through May Primary

The Court scheduled trial on Petitioners’ request to permanently enjoin the Photo ID Law to begin on July 15, 2013 (see the Court’s scheduling order).  In the meantime, the parties agreed that the preliminary injunction Judge Simpson entered on October 2, 2012 barring enforcement of the Photo ID Law should be extended through the May primary, and the Court entered an order so extending the preliminary injunction.  This means that voters will not be required to show photo ID in order to vote in the May 21 primary.

In other developments, Petitioners filed an Amended Petition for Review.

 

Leave a comment

Filed under Uncategorized

Does Judge Simpson’s Injunction Inadertently [Knock Pennsylvania Out of Complaince with] Federal Law?

Does the injunction that Judge Simpson issued today inadvertently violate [knock Pennsylvania out of compliance with] the first-time voter identification requirement in the Help America Vote Act of 2002 (“HAVA”)?

HAVA, in Section 303(b), requires [states to pass laws requiring] voters who register by mail and are voting for the first-time to present identification at the polls.  Pennsylvania implemented this requirement of HAVA in the law that preexisted the current Photo ID Law.  Specifically, before the Legislature passed the Photo ID Law (Act 18), Section 1210 of the Election Code required:

(a)  At every primary and election each elector who appears to vote in that election district for the first time and who desires to vote shall first present to an election officer one of the following forms of photo identification:

(1)  a valid driver’s license or identification card issued by the Department of Transportation;

(2)  a valid identification card issued by any other agency of the Commonwealth;

(3)  a valid identification card issued by the United States Government;

(4)  a valid United States passport;

(5)  a valid student identification card;

(6)  a valid employe identification card; or

(7)  a valid armed forces of the United States identification card.

The election officer shall examine the identification presented by the elector and sign an affidavit stating that this has been done.

(a.1)  Where the elector does not have a photo identification as provided for in subsection (a), the elector shall present for examination one of the following forms of identification that shows the name and address of the elector:

(1)  nonphoto identification issued by the Commonwealth, or any agency thereof;

(2)  nonphoto identification issued by the United States Government, or agency thereof;

(3)  a firearm permit;

(4)  a current utility bill;

(5)  a current bank statement;

(6)  a paycheck;

(7)  a government check.

The election officer shall examine the identification presented by the elector and sign an affidavit stating that this has been done.

Because the new requirement in the Photo ID Law that everyone show photo ID at every election made the requirement that first-time voters show ID unnecessary, Act 18 amended this section to do away with the distinction between first-time voters and all other voters.  The Act also limited the acceptable forms of identification to photo ID.  Specifically, Act 18 made the following changes to Section 1210(a), which changes, under Section 11 of the Act, would become effective for any election held after September 17, 2012:

(a)  At every primary and election each elector who appears to vote [in that election district for the first time] and who desires to vote shall first present to an election officer [one of the following forms of photo identification:

(1)  a valid driver's license or identification card issued by the Department of Transportation;

(2)  a valid identification card issued by any other agency of the Commonwealth;

(3)  a valid identification card issued by the United States Government;

(4)  a valid United States passport;

(5)  a valid student identification card;

(6)  a valid employe identification card; or

(7)  a valid armed forces of the United States identification card] proof of identification [defined elsewhere in Act 18 as photo ID].

The election officer shall examine the proof of identification presented by the elector and sign an affidavit stating that this has been done.

[(a.1)  Where the elector does not have a photo identification as provided for in subsection (a), the elector shall present for examination one of the following forms of identification that shows the name and address of the elector:

(1)  nonphoto identification issued by the Commonwealth, or any agency thereof;

(2)  nonphoto identification issued by the United States Government, or agency thereof;

(3)  a firearm permit;

(4)  a current utility bill;

(5)  a current bank statement;

(6)  a paycheck;

(7)  a government check.

The election officer shall examine the identification presented by the elector and sign an affidavit stating that this has been done.]

Although Judge Simpson’s Order today reinstated certain sections of the preexisting Election Code (relating to provisional ballots) for the November election, it did not reinstate the preexisting version of Sections 1210(a) or 1210(a.1).  In fact, Judge Simpson’s Order explicitly says: “All other provisions of Act 18 remain in effect.”  This means that the section of the preexisting Election Code that required first-time voters to show ID no longer exists — it was stricken by Act 18 and Judge Simpson did not reinstate it in his ruling today.

Therefore, the Pennsylvania Election Code, after the injunction issued today, does not require first-time voters to show ID to vote [in November].  Rather, as with all other voters, poll workers can ask first-time voters to show photo ID, but must let them vote if they do not have ID.  If, as seems to be the case, Judge Simpson’s Order permits first-time voters who registered by mail to vote without showing any kind of ID, the Order may violate [knock Pennsylvania out of compliance with] HAVA.

There is a simple solution to this seeming oversight:  the former versions of Sections 1210(a) and 1210(a.1) can be reinstated for the November election, just like Judge Simpson reinstated the former provisional ballot provisions for the November election.  But, unless and until the Order is so modified, it would appear to be [place Pennsylvania law] in conflict with federal law.

UPDATE (10/3/12):

To clear up misunderstandings that I have heard from some:  HAVA required states to pass laws requiring first-time voters who register by mail to show ID.  Pennsylvania complied with that requirement years ago.  But as a result of Judge Simpson’s ruling yesterday, Pennsylvania no longer has a law that will require first-time voters to show ID — at least not in the November election.  Therefore, it would seem that the Election Code in Pennsylvania will not comply with HAVA for the November election.  [I edited my original post as indicated above to try to clear up any confusion].

Here is a simple way to look at it:  Go try to find a section of the Pennsylvania Election Code that, after Judge Simpson’s ruling yesterday, will require first-time voters to show ID in November.  You will not be able to find one.

4 Comments

Filed under Uncategorized

Judge Simpson Enters Injunction Extending “Dry Run” Provision In Photo ID Law to General Election

Judge Simpson entered his opinion on remand this morning. It appears to say that the Commonwealth must extend the “dry run” procedures in the law through the general election. In other words, poll workers must ask voters for photo ID, but if the voter does not have one, he or she can still cast a ballot.

The opinion is here:

UPDATED (12:30 p.m.):

Legal opinions often can be confusing and difficult to follow, especially for those who are not familiar with the details of a case.  So when I want to understand what a court actually held, I skip over the opinion and immediately flip to the court’s order.  Here, Judge Simpson’s ORDER says:

It is the intent of this Preliminary Injunction to extend the transition procedures described in Section 10(1) of Act 18 [the Photo ID Law] beyond September 17, 2012, and through the general election of November 6, 2012.

Section 10(1) of the Photo ID Law says:

Section 10.  The following shall apply to elections held after January 1, 2012, and prior to September 17, 2012:

(1)  (i)  Except as provided under subparagraph (ii) and notwithstanding any law, election officials at the polling place at an election held after January 1, 2012, shall request that every elector show proof of identification.

(ii)  Notwithstanding subparagraph (i), prior to September 17, 2012, if the elector does not provide proof of identification and the elector is otherwise qualified, the elector may cast a ballot that shall be counted without the necessity of presenting proof of identification and without the necessity of casting a provisional ballot, except as required by the act.

Therefore, Judge Simpson ruled that poll workers must request photo ID from all voters during the November 6 general election, but must permit voters who do not have photo ID to cast a regular ballot.  This does not mean, as some news outlets incorrectly are reporting, that voters without photo ID must vote by provisional ballot in November.

So, in short, under Judge Simpson’s opinion today, Pennsylvania voters DO NOT HAVE TO SHOW A PHOTO ID to cast a regular ballot during the election on November 6.

Leave a comment

Filed under Uncategorized

Briefs and Transcripts on Remand to Commonwealth Court

The Commonwealth Court, in compliance with the Supreme Court’s remand order, accepted additional briefing from the parties and heard additional  testimony and evidence during hearings on September 25 and 27.  Links to the briefs and transcripts of the hearing follow:

Petitioners’ Pre-Hearing Remand Brief

The Commonwealth’s Pre-Hearing Remand Brief

Petitioners’ Post-Hearing Remand Brief

The Commonwealth’s Post-Hearing Remand Brief

Transcripts of the remand hearing

Remand Declarations and Exhibits

Under the Supreme Court’s remand order, the Commonwealth Court must issue its decision no later than Tuesday, October 2.

 

Leave a comment

Filed under Uncategorized

The Pennsylvania Supreme Court Punts

The Pennsylvania Supreme Court did not rule one way or the other on the Constitutionality of the Photo ID Law, but rather sent it back to the Commonwealth Court with instructions to conduct additional hearings (before October 2) on the issue of whether the Commonwealth can actually get photo IDs into the hands of all who need them before the election.

The opinion is here.

Dissenting opinions are here and here.

 

Leave a comment

Filed under Uncategorized