Capitol reporter Mary Wilson covers Pennsylvania politics and issues at the Pennsylvania state capitol.
The judge in the voter ID case said Thursday he was considering the idea of a tightly-defined injunction that would render the photo ID requirement at the polls a mere option in the November election.
During closing arguments in the end of the hearing in Commonwealth Court, Judge Robert Simpson pointed to the possibility of a temporary block on the part of the law that affects provisional ballots, used by people as a contingency voting method, typically when they’re not on the rolls at a polling place.
Simpson indicated one possible injunction might allow people without voter ID to vote by provisional ballot. The ballots would count even if they never sent proof of valid voter ID, he suggested.
“People would understand this is the law going forward, they would have every incentive to comply with the law by the election,” said Alicia Hickok, a lawyer defending voter ID on behalf of the commonwealth, “but for those people who couldn’t or got caught, they would not be – they would not have any risk that their votes would not be counted.”
Lawyers challenging voter ID disagree. They argued sending voters without certain IDs to fill out provisional ballots would introduce too much uncertainty and chaos into the election.
“I don’t think that a comparison between hanging chads and provisional ballots is inappropriate,” said Vic Walczak, director of the ACLU of Pennsylvania, referring to problem plaguing ambiguous ballots cast in Florida during the 2000 U.S. presidential election.
“There’s no assurance that provisional ballots are going to be counted,” Walczak continued. “Any time somebody votes provisionally there’s a risk. Maybe it is counted, maybe it isn’t counted. The testimony was that sometimes voters aren’t even notified that they’re not going to count their provisional ballots. There’s just no notice and they throw them out.
Walczak’s camp wants the entire law to be blocked until after the November 6 election. Judge Simpson indicated in court that may not be the best route.
“I’m wondering if there’s something else besides all or nothing,” said the judge. Later, he added: “I don’t really see this case going away after the election.”
Commonwealth attorneys are suggesting a slightly different injunction than the one posed by the judge. They indicated they’d prefer a narrow block, also related to provisional ballots, that requires provisional voters to certify they tried to get voter ID.
As the voter ID law stands now, provisional ballots would only be counted by people who provide valid photo ID within six days of Election Day.
Lawyers on both sides have until Friday afternoon to send their own suggestions about a potential injunction to Judge Simpson. His ruling is due by Tuesday.
Neither side of the case expressed much confidence that the judge would follow through on suggestions about a narrow injunction. Walczak refused to read the “tea leaves” before Tuesday.
“Not a moment before that will we know what the judge is thinking,” Walcazak said. “We just don’t know.”
“It’s very hard to say what a court’s going to say,” said Hickok. "I believe that he would not strike down the entire law but I cannot speak for what a court will determine as he reviews the evidence and argument. I certainly believe that the entire law should not be struck down and that it would not be consistent with the law on injunctions, period.”
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