The fate of the state’s controversial new voter ID is now in the hands of the Pennsylvania Supreme Court, which heard oral arguments on the matter Thursday morning.
It was unclear when the court would issue its ruling, but the case was heard on an expedited basis, - which means the justices will move as quickly as possible to clarify voting rules before the presidential election.
Opponents hoped the court would, at the very least, delay implementation of the law until after the Nov. 6 presidential election. Supporters argued that there is no reason to delay implementation. The matter ended up before the Supreme Court after a Commonwealth Court judge earlier this summer denied an injunction that would have delayed implementation.
The attorneys’ arguments were punctuated by questions and comments from the six justices. David P. Gersch, the Washington D.C. attorney representing the appellants, which included the NAACP, the ACLU and the Public Interest Law Center of Philadelphia, argued that the law placed an undue burden on potential voters by infringing on their constitutional right to vote.
Acknowledging that the state legislature – which approved the law in March – has the authority to regulate elections, Gersch attacked the law on the basis that the burden to get the required ID was borne by the individual, not the state, with no guarantee that an individual had access to a state-approved identity card. It was a move, he argued, that it would disenfranchise an unknown number of voters.
“The vice is not requiring photo ID,” he said. “The vice is requiring photo ID that not everyone can get. The act does not guarantee that you will get the ID necessary to vote.”
It was a remark that elicited a rare comment from Justice J. Michael Eakins.
“There will never be a point when everyone can get something the legislature requires,” said Eakins.
Reliable numbers on how many voters the law could disenfranchise are difficult to come by. Estimates range widely, with some suggesting that 100,000 Pennsylvanians could be barred from voting because they lack an approved identity card. Other estimates run as high as 500,000.
Either number represented “a very large problem,” Gersch said.
Even at the low end of that scale, he argued, the state was not prepared to make sure that all eligible voters got an ID, issued through the state Department of Transportation.
“PennDOT only does 45,000 IDs a month” he told the court, pointing out that nine counties across the state don’t even have a PennDOT licensing center, and that in 10 counties those centers are open only one day a week.
Arguing for the state, John G. Knorr, chief deputy for the attorney general, said requiring photo ID was within the state’s authority and would not disenfranchise the vast majority of voters.
“The right to vote at its core, obviously, is a fundamental right – but not everything that affects that right is fundamental,” argued Knorr. “Elections cannot exist without pervasive state regulation. The court has always recognized this.”
He assured the court that most Pennsylvanians had some form of ID that would meet state rules.
The administration is “absolutely, positively sure that 91 percent of voters have ID,” said Knorr.
The new law is just a way to verify identity in an effort to prevent fraud, he said. “It’s simply a means to establish that you are who you say you are.”
“But it’s a new burden,” chimed in Justice Debra McCloskey Todd.
“The burden seems to me to be quite minimal,” replied Knorr, a response that was met with a quiet chorus of boos from the audience.
Justice Seamus P. McCaffery pointed out that his Supreme Court ID card would not be valid at the polls.
“My Supreme Court ID does not qualify, because it does not have an expiration date on it,” he said, eliciting laughter from the audience.
Todd repeatedly raised questions about the need to implement the law before the Nov. 6 election
“How much better could we do if we had two years?” she asked. “What’s the rush?”
McCaffery joined her in a similar line of questioning, asking rhetorically, “Could it be political, maybe? Do we give deference to the legislature for what seems to me a political thing that is now going to trample the rights of our citizens?”
Chief Justice Ron Castille cautioned that the case was a question of law - not time.
“The rush is not a reason to overturn this,” he said.
The six justices – three Republican and three Democrats – retired after hearing arguments for about two hours and 15 minutes. Several hundred people attended the hearing. Supreme Court chambers were packed to standing room only, and an overflow room down the hall was also filled beyond capacity.
With Republican Justice Joan Orie Melvin suspended, the court’s justices are evenly divided in terms of party affiliation. Should the court deadlock, the law will stand.
Justices could issue formal opinions on the matter, or simply affirm or deny the request for an injunction, delaying the law’s implementation.
Speaking to reporters after the hearing, the heads of the national and local NAACP Benjamin Todd Jealous and J. Whyatt Mondesire said they were “cautiously optimistic.”
“There is reason to be hopeful … that Pennsylvania will rejoin our great democracy by invalidating this law,” said Jealous.