From the per curiam opinion issued today (you can access the full opinion here. Justice Todd’s dissent is here, and Justice McCaffrey’s is here:
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.
The Commonwealth will now have an opportunity to further develop the factual record and establish that its means of implementing the act will not impermissibly disenfranchise otherwise eligible voters. I find it interesting that Justices Todd and McCaffrey filed dissents – based upon the oral argument, and the open hostility that these two justices displayed for the Commonwealth’s position, I had counted them as two sure votes to reverse the lower court and enjoin enforcement of the statute. It appeared to me that Justice Eakin (who observed that the fact that there is fraud in elections is self-evident) and Chief Justice Castille (who appeared to be strongly advocating for application of the same standard adopted by the US Supreme Court in Crawford v. marion County, in which a statute virtually identical to Pennsylvania’s was upheld) were likely votes to uphold the lower court, leaving Justices Baer and Saylor as the swing votes.
Justice Saylor was plainly troubled, to an extent, bu the Commonwealth’s admission that it was not implementing the law in a manner not provided for in the text of the statute, and that it was quite likely that implementation in accordance with the letter of the statute would not be possible. Justice Baer also seemed to have some questions about the means of implementation. It would seem that the remand is intended to enable the Commonwealth to further develop the record to address the majority’s concern’s about implementation. If the Commonwealth can adequately address these concerns and persuade the Commonwealth Court that it correctly refused the injunction the first time, it is my belief that it would likely gain the vote of at least Justice Saylor, which, if my assumptions about Justice Eakin and the Chief Justice’s sympathies are correct, would be sufficient to uphold the lower court’s refusal to enjoin enforcement of the statute (a 3 to 3 tie would be sufficient to affirm the lower court, as the Supreme Court is currently sitting with 6 justices.