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

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.

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.

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.

The opinion is here.

Dissenting opinions are here and here.

UPDATE (9/17/12):

There was a very interesting article in the Philadelphia Inquirer on Friday relating to an issue raised by one of the Republican Justices at oral argument that, as far as I know, no one previously has mentioned.

Specifically, the Photo ID Law provides that: “[T]he Department of Transportation shall issue an identification card described in 75 Pa.C.S. § 1510(b) at no cost to any registered elector who has made application therefor and has included with the completed application a statement signed by the elector declaring under oath or affirmation that the elector does not possess proof of identification as defined in section 102(z.5)(2) and requires proof of identification for voting purposes.”

The identification card described in 75 Pa.C.S. § 1510(b) is a “secure” ID. Under Federal law, PennDOT cannot issue a secure ID unless the applicant provides identification documents, such as a birth certificate, social security card, and proofs of residence.

Therefore, PennDOT is prohibited by Federal law from issuing a free secure ID to an elector who does exactly what the Photo ID Law says — completes an application and signs a statement saying he lacks ID to vote. In other words, the Commonwealth cannot comply with the statute as drafted. Justice Saylor got the Commonwealth’s lawyer to concede this point on the record.

I’m not sure where Justice Saylor was going with the point, but he must have something in mind to have focused on the issue.

The Governor and Secretary of the Commonwealth filed a separate brief, which is available here.

The Commonwealth also filed a Suggestion of Mootness as to Petitioner Applewhite, to which Petitioners responded.

Several amicus briefs also were filed in support of the Photo ID Law.  Judicial Watch filed a brief on behalf of certain Republican members of the Pennsylvania House of Representatives.  According to the docket, the American Center for Law and Justice, Landmark Legal Foundation, and the voters who tried unsuccessfully to intervene in the case in the Commonwealth Court also filed amicus briefs, but I cannot find a copy of those briefs online.

My current workload, unfortunately, prohibits me from offering any analysis of these briefs.

UPDATE 9/17/12:

I found the “missing” amicus briefs on the webpage of Moritz College of Law (which has many of the documents filed in this case in one convenient location):  Republican Caucus amicus brief; Bipartisan Electors amicus brief; Landmark Legal Foundation amicus brief; American Center for Law and Justice amicus brief.

Amicus Brief of Several Pennsylvania Law Professors:  This brief argues that: (1) the Court should give deference to the cases from other states where the courts have stricken photo ID laws that are less restrictive than the Pennsylvania law; and (2) the Court should not give deference to the cases from other states where the courts have upheld photo ID laws because the laws at issue in those cases were not as restrictive as the Pennsylvania law.  The brief also distinguishes the Crawford case.

Amicus Brief of the Asian American Legal Defense and Education Fund:  This brief argues that the Photo ID Law will have a discriminatory impact on Asian American voters.

The amicus briefs filed by the City of Philadelphia, Common Cause, the SeniorLaw Center and a poll worker appear to be largely the same as the briefs filed by those same parties in the Commonwealth Court.

According to the docket, the AFL-CIO, the Senate Democratic Caucus and the Anti-Defamation League also filed amicus briefs, but I have not been able to find copies of them posted anywhere online.  (UPDATE 9/17/12: I found the AFL-CIO amicus brief and the ADL amicus brief).

In his decision, Judge Simpson noted that “Petitioners raised a substantial question as to the level of scrutiny to be applied,” but concluded that Petitioners “failed to persuade me that they will prevail on the merits” of their claims.  Petitioners latched onto Judge Simpson’s holding that the proper level of scrutiny is a “substantial question,” and used that holding as the foundation for their argument on appeal.

Specifically, a party seeking an injunction normally must demonstrate, among other things, that he is likely to prevail on the merits of his claim.  Petitioners, however, note that the Pennsylvania Supreme Court has held that where “substantial legal questions must be resolved to determine the rights of the respective parties,” the petitioner need not show that he is likely to prevail on the merits of his claim, but rather only must show that: (1) “the threat of immediate and irreparable harm . . . is evident” (2) “the injunction does no more than restore the status quo” and (3) “the greater injury would result by refusing the requested injunction than granting it.”  See Fischer v. Department of Public Welfare.  Petitioners argue that they satisfied all three factors required under Fischer:

• With respect to factor No. 2, Judge Simpson held that the injunction would do no more than restore the status quo.

• With respect to factor No. 1, Petitioners argue that Judge Simpson incorrectly held that “immediate and irreparable harm” must be harm that is “inevitable.”  Petitioners contend that “immediate and irreparable harm” means harm that is “imminent,” and cite to several cases in which the Pennsylvania Supreme Court found that a showing of possible imminent harm — not inevitable harm — is sufficient to satisfy factor No. 1.  Petitioners contend that, even under Judge Simpson’s own estimate of the number of voters in Pennsylvania who lack photo ID, a substantial number of voters will be disenfranchised by the Photo ID Law.  Therefore, contrary to Judge Simpson’s conclusion, Petitioners did establish the threat of “immediate and irreparable harm.”

• As for factor No. 3, Petitioners note that Judge Simpson punted on the issue.  Judge Simpson held that the Commonwealth would suffer the greater injury if he enjoined the law before the appeal was decided because, had the Supreme Court reversed an injunction, the Commonwealth would have had little time to complete preparations to implement the law, whereas no one would vote before the appeal was resolved.  The Supreme Court, however, now must address the issue that Judge Simpson did not — whether greater injury will result if the law is not enjoined before the next election.  On that issue, Petitioners argue, there is no question that the harm to voters will outweigh any harm to the Commonwealth.  Voters who do not have and cannot obtain an acceptable photo ID will be disenfranchised.  By contrast, the Commonwealth, having stipulated that there is no evidence that in-person voting fraud will occur in November if the Photo ID Law is enjoined, will suffer no injury if the Court enjoins the law.

As for what level of scrutiny Judge Simpson should have applied, Petitioners contend that the answer to that question rests on whether the constitutional right allegedly infringed is a fundamental right.  Petitioners note that Judge Simpson dodged this question entirely, never saying whether the right to vote is a fundamental right.  Petitioners argue that the right to vote is as important as, if not more important than, the right to free expression, which the Pennsylvania Supreme Court repeatedly has held is a fundamental right that must be analyzed under the strict scrutiny standard of review.  For instance, the Pennsylvania Supreme Court has held that government restrictions on expressive conduct such as nude dancing must be analyzed under the strict scrutiny standard.  If laws regulating nude dancing must be analyzed under the strict scrutiny standard, how can laws regulating voting possibly be analyzed under any lesser standard?  Petitioners then explain how the cases cited by Judge Simpson for the proposition that laws impacting the right to vote are subject to a lesser standard of review are distinguishable from the case at hand.

The Petitioners also explain that, even if they were required to prove that they are likely to prevail on the merits of their claims, the evidence they presented at trial did so.

The Commonwealth’s response to Petitioners’ appellate brief is due on September 7.