HARRISBURG —
Eyebrows raised midway through Thursday’s 80 minutes of state Supreme Court arguments over Pennsylvania’s law requiring voters to show particular forms of photo identification.
That was about the time that Justice Thomas Saylor began raising questions that seemed to go to the heart of the plaintiffs’ complaint that the law creates unconstitutional barriers around the right to vote.
Saylor’s concerns are particularly important because the law will need the support of at least three justices on the politically divided state Supreme Court if it is going to take effect in this year’s presidential election.
Republicans who control the state Legislature wrote and passed the legislation, among the toughest in the nation, and Republican Gov. Tom Corbett signed it into law in March. No Democrat voted for it, and the law has become a central theme in the heated election-year rhetoric.
Now the spotlight is on the state Supreme Court and the six justices expected to issue a decision later this month as the days tick down to the Nov. 6 election.
Three justices were elected as Republicans and three as Democrats. A seventh justice, Republican Joan Orie Melvin, is suspended while she faces political corruption charges. A 3-3 tie on the request for a preliminary injunction would mean that the law could go forward; the support of four justices would be needed to halt the law.
The three Democrats dominated the questioning, and none seemed inclined to allow the law to go forward. Two of the Republicans, Michael Eakin and Chief Justice Ronald Castille, spoke relatively little.
But Saylor, who served as an assistant district attorney in Somerset County from 1973-1976, seemed troubled that the law stumbles when it comes to the “safety net provision.” In essence, it says the state must issue a free photo ID card to any registered voter who swears they have no other kind that will allow them to vote.
“Will that ever happen? Can it ever happen?” Saylor asked John Knorr, a chief deputy attorney general who was defending the law for the state.
The catch, according to Saylor, is that the type of photo ID described in the law is a “secure photo ID” that can be used for purposes other than voting, such as boarding an aircraft, and is thus subject to federal Homeland Security rules about when and to whom the state may issue one.
To issue one that complies with federal rules, the state requires an official record of birth, proof of a Social Security number and two proofs of residency, such as a utility bill – documents that not every registered voter may be able to produce.
In other words, the state can’t issue it as a voter ID, despite a law that says it must, Saylor was suggesting.
Saylor asked Knorr if that part of the voter ID law can ever be complied with.
“I think I have to say ‘No’ based on what the federal law now requires (the state Department of Transportation) to do in terms of issuing a secure ID,” Knorr responded.
Knorr pointed out that the state has begun issuing voting-only photo ID cards that have less rigorous qualifications. The state developed the idea for the voting-only card in June, a few weeks after the plaintiffs sued, and first made it available in late August.
“I guess it’s kind of a workaround to get to the same point where that statute would have had us,” Knorr told Saylor.
Saylor pressed his point, calling the voting-only ID card a “fallback” that is designed to comply with the spirit of the law – even though the law itself does not mandate it.
“You can’t comply with the letter of this law,” Saylor said. “That’s what you’re saying, right?”
Saylor then raised the question of what happens when a registered voter goes to a PennDOT office to get a legal photo ID to vote, but cannot qualify for a secure photo ID card.
“If you go to that PennDOT office under this statutory regime, they’re not going to give you that (secure ID) and they can’t give you that, right?” Saylor asked.
“That’s right,” Knorr replied.
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