Last month, the Pennsylvania Supreme Court unanimously rejected a lower court judge’s decision allowing that state’s voter ID law to move forward. The high court ordered the trial judge to reexamine the case to ensure “liberal access” the ID voters need to vote, and to ensure that voter disenfranchisement will not result from the voter ID law — which the state’s Republican House Majority Leader said was enacted to “allow Governor Romney to win the state of Pennsylvania.”
This morning, the lower court judge responded to the state supreme court’s order, and he blocked some — but not all — of the state’s voter suppression law. The punchline of his opinion is that voters will still be asked to present IDs at the polls, but voters without IDs will be allowed to cast ballots of some kind. In November, the opinion indicates that voters will be allowed to cast regular ballots. After November, assuming the judge’s order remains in effect, they may have to cast provisional ballots, but the provision of the voter ID law that effectively prevents these provisional ballots from being counted will not take effect.
I reject the underlying assertion that the offending activity is the request to produce photo ID; instead, I conclude that the salient offending conduct is voter disenfranchisement. As a result, I will not restrain election officials from asking for photo ID at the polls; rather, I will enjoin enforcement of those parts of Act 18 which directly result in disenfranchisement. . . .
As to voter disenfranchisement, I carefully reviewed the language of the Election Code after amendment by Act 18. The language of disenfranchisement is found in the part of the Election Code dealing with provisional ballots: “A provisional ballot shall not be counted if ….” This language pre-existed Act 18, but Act 18 added two new circumstances when a provisional vote will not be counted. Both of these new circumstances relate to electors who are unable to produce proof of identification. . . . Thus, disenfranchisement expressly occurs during the provisional ballot part of the in-person voting process, which is addressed in subsections (a.2) and (a.4) of Section 1210. It is this part of the process which must be enjoined to prevent disenfranchisement.
The two provisions that the judge enjoined requires a voter who casts a provision ballot to “appear before the county board of elections” within six days after the election to prove their identity — normally by showing an ID. These provisions are no longer in effect, meaning that individuals who vote without IDs can have their provisional ballots cast without having to jump through even more hoops after the election.
This is an imperfect solution. It creates two different voting processes for different voters, and there are still opportunities for a provisional ballot to be tossed if the voter does not properly fill out the paperwork associated with a provisional ballot or even the ballot is not sealed using a special process involving two envelopes. Worse, the creation of a unique process for voters without IDs may discourage lawful voters from casting their ballot or lead to poll workers mistakenly turning away voters without IDs. Nevertheless, the judge’s decision is an improvement over the status quo. For at least the upcoming election, voters without IDs will have a path to avoid disenfranchisement.
Buried in the opinion is a line establishing that the requirement that voters without IDs cast only provisional ballots will also not be in effect during the November election. After describing a “transition” provision from January 1, 2012 until September 17, 2012 where voters who do not show ID may cast a ballot “without the necessity of casting a provisional ballot,” the judge concludes that “the injunction will have the effect of extending the express transition provisions of Act 18 through the general election.” The impact of this line is that voters without ID will cast normal, not provisional, ballots this November, but they will still be asked for ID.