[JURIST] The Supreme Court of Pennsylvania [official website] on Tuesday vacated [order, PDF] the decision [JURIST report] of the Pennsylvania Commonwealth Court [official website] upholding the state’s new voter identification law [HB 943 materials] and remanded for further consideration. The Supreme Court’s order, issued per curiam, suggests that it may be logistically impossible to implement the law by the November election, due to conflicts with the Pennsylvania Department of Transportation (PennDOT) [official website], the primary outpost for obtaining photo ID acceptable to the new law. The law requires that all voters present a state issued or federal government issued photo ID when they vote. However, the law provides that a potential ID recipient can swear to an affidavit that they have no proof of identification and receive a photo ID, whereas PennDOT has more rigorous requirements to obtaining a photo ID: a birth certificate with raised seal, a social security card and two forms showing current address.

Upon review, we find that the disconnect between what the Law prescribes and how it is being implemented has created a number of conceptual difficulties in addressing the legal issues raised. Initially, the focus on short-term implementation, which has become necessary given that critical terms of the statute have themselves become irrelevant, is in tension with the framing of Appellants’ challenge to the Law as a facial one (or one contesting the Law’s application across the widest range of circumstances). In this regard, however, we agree with Appellants’ essential position that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future. Indeed, the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate.

They remanded the case to the Commonwealth court 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.” Two justices, Justice Todd and Justice McCaffery [dissenting opinions, PDF] dissented to the order to vacate. Both criticized the court for remanding the issue so close to the general election in November, with Justice Todd writing: “By remanding to the Commonwealth Court, at this late date, and at this most critical civic moment, in my view, this Court abdicates its duty to emphatically decide a legal controversy vitally important to the citizens of this Commonwealth. The eyes of the nation are upon us, and this Court has chosen to punt rather than to act. I will have no part of it.”

There are now 32 US states [NCSL backgrounder] that require voters to present some form of ID at the polls, but the issue remains controversial. The Pennsylvania Supreme Court heard oral arguments [JURIST report] on the law late last week. The case reached Pennsylvania’s high court after an appeal [Bloomberg report] by the American Civil Liberties Union (ACLU) [advocacy website] from the lower court’s ruling allowing the voter ID law to stand. The ACLU along with 10 citizen plaintiffs brought this case against Governor Tom Corbett who signed the voter ID bill into law [JURIST report] in March. JURIST Guest Columnist Lawrence Frolik [official profile] of the University of Pittsburgh School of Law analyzed [JURIST op-ed] the law and declared that it will not stop voter fraud but will cause disenfranchisement.