Here is the crucial, predictive paragraph from pages 6 and 7 of the ruling:
Thus, we will return the matter to the Commonwealth Court to make a present assessment of the actual availability of the alternate identification cards on a developed record in light of the experience since the time the cards became available. In this regard, the court is to consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards. If they do not, or if the Commonwealth Court is not still convinced in its predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth’s implementation of a voter identification requirement for purposes of the upcoming election, that court is obliged to enter a preliminary injunction.
[Bold added for emphasis]
The court is mandating that the Commonwealth Court must grant a preliminary injunction if the court is not convinced that there will be no disenfranchisement.
That is a serious burden to overcome, and I would wager that the Commonwealth Court will be handcuffed to entering a preliminary injunction. The proceedings taken by the Commonwealth Court must be consistent with the ruling released today, and today’s ruling was very explicit in describing the burden of proof for the Commonwealth Court–they must be convinced that there will be no disenfranchisement.
The dissenting opinion by Justice McCaffery echoes the points I made above. Justice McCaffery says at the bottom of page 5 of his opinion
The Per Curiam Order also correctly determines that any voter disenfranchisement arising out of the Commonwealth’s implementation of a Voter Photo ID requirement before the November 2012 election obliges the Commonwealth Court to enter a preliminary injunction.
Justice McCaffery dissented from the opinion of the Court because he “believe[s] circumstances already exist such that we should remand with the specific directive to the Commonwealth Court to immediately grant the requested preliminary injunction.”
I agree with McCaffery that further hearings are not “necessary or appropriate,” but I suspect that the result of the Commonwealth Court will likely be the same given the strict orders of today’s opinion.
Wendy Weiser, Democracy program director of voter ID opponents at the Brennan Center for Justice, agrees with my optimism:
“We are optimistic this restrictive voter ID law will not be in effect for the 2012 election.”
So does President Leo Gerard of the USW:
“The Pennsylvania Supreme Court took the first step towards halting this unreasonable law.”
And Penda D. Hair, co-director of the Advancement Project, one of the groups that sued to overturn the law:
“Today’s decision by the Pennsylvania Supreme Court is a big step in the right direction for the Commonwealth’s voters.”
Voting rights advocate Marybeth Kuznik sent me the following note advising caution:
Jake, I am not as optimistic as you. The Commonwealth Court has a long history of ignoring serious problems with our elections. For example, for six years Commonwealth Court has been foot dragging on a case regarding serious problems with electronic voting machines (a case which I am not a party to, BTW.) And every election year we hear reports of candidates being improperly removed from the ballot by the court after politically-motivated challenges to petitions. So I advise caution to all. I think fierce efforts to get the IDs to everyone should continue because it could come to pass that Commonwealth Court will find no problem with the way IDs are being issued.
[NOTE: I’ll be updating this post as more information comes to light, or if I receive enough emails telling me I’m right or wrong.]