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Dissent

Dissent

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Published by jmicek

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Published by: jmicek on Sep 18, 2012
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[J-114-2012]IN THE SUPREME COURT OF PENNSYLVANIAMIDDLEDISTRICT
VIVIETTE APPLEWHITE; WILOLASHINHOLSTER LEE; GROVERFREELAND; GLORIA CUTTINO; NADINEMARSH; DOROTHYBARKSDALE; BEABOOKLER, JOYCE BLOCK; HENRIETTAKAY DICKERSON, DEVRA MIREL("ASHER") SCHOR, THE LEAGUE OFWOMEN VOTERS OF PENNSYLVANIA;NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLOREDPEOPLE; PENNSYLVANIA STATECONFERENCE; HOMELESS ADVOCACY PROJECTv.THE COMMONWEALTH OFPENNSYLVANIA; THOMAS W.CORBETT, IN HIS CAPACITY ASGOVERNOR; CAROLE AICHELE, INHER CAPACITY AS SECRETARY OFTHE COMMONWEALTH APPEAL OF: VIVIETTE APPLEWHITE;WILOLA SHINHOLSTER LEE; GLORIACUTTINO; NADINE MARSH; BEABOOKLER; JOYCE BLOCK; HENRIETTAKAY DICKERSON; DEVRA MIREL(“ASHER”) SCHOR; THE LEAGUE OFWOMEN VOTERS OF PENNSYLVANIA;NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED::::::::::::::::::::::::::::::::::::::No. 71 MAP 2012 Appeal from the August 15, 2012 Order of the Commonwealth Court of Pennsylvaniaat Docket No. 330 MD 2012, denying Appellant’s Application for PreliminaryInjunction ARGUED: September 13, 2012
 
[J-114-2012] -2PEOPLE; PENNSYLVANIA STATECONFERENCE; HOMELESS ADVOCACY PROJECT:::
DISSENTING STATEMENTMR. JUSTICE McCAFFERYFILED: September 18, 2012
I completely agree with Justice Todd that the existing record in this case,together with the arguments and admissions made by the Commonwealth in its briefsand by its attorneys at argument before this Court, is fully sufficient to determine,without equivocation, that a preliminary injunction shouldbe granted through theNovember 6, 2012 general election. I thusfully join her excellent dissenting statement. As Justice Todd astutely observes, the PerCuriamOrder merely gives theCommonwealth Court another opportunity to “predict” whether the implementation of  Act 18 would disenfranchise any otherwise qualified elector in the November election,based on anticipated evidence of the Commonwealth’s latest effortsunmoored fromthe actual text of Act 18 and without benefit of governing regulation –toissue Photo IDcards to those whostill lack them. However, a new prediction from the lower court willhave no more legal significance before this Court than the existing one, andI
 predict 
that,once again,we will be presented witha record that establishes thatmanythousands –indeed, ultimately
uncountable
numbersof otherwise qualified electorswill lack a Photo ID for purposes of the upcoming election, and hence will bedisenfranchised, despite the Commonwealth’s last ditch effortsto loosen the standardsestablished by Act 18. In the end, it is this Court that must determine whether thePennsylvania Constitution requiresthe entering of animmediate preliminaryinjunctionpriorto the November election. For the good of the electorate, and to foster respect for 
 
[J-114-2012] -3the judiciary andthe integrity of the electoral process, I agree with Justice Todd that
now
is the time for this Court to make that decision.There is no doubt that the record, as it is, establishes the immediate andirreparable harm required for the injunction.
1
Prior to enacting Act 18,the General Assembly clearly failed to sufficiently consider the burdens and impediments that thelaw’s requirements would place upon “the most vulnerable segments of our society.”PerCuriamOrder at 5. When Appellants’ lawsuit challenging the constitutionality of Act18 placed a spotlight on these burdens and impediments, the agencies charged withimplementing Act 18 began efforts, first on or about May 23, 2012, and then on or about August 27, 2012, to relax the procedures for obtaining the requisite ID. Although theseefforts may be laudable, they necessarily suffer from the compressed timeframe inwhich they are expected to achieve the purported goals of Act 18. Indeed, the August27, 2012 effort was instituted a mere ten weeks before the election. Where afundamental constitutional rightisat issue –arguably
the
fundamental right animplementationof even a lesserburdenon the exercise of that right, ten weeks before itis to be exercised, is simply unreasonableand constitutionally insupportable. Indeed,the Commonwealth’s activities in this regard area tacit admission that Act 18 issimplynot ready for the primetime of the November 6, 2012 election.
2
 
1
Initially, it must be observed that the Commonwealth Court plainly erred by requiring Appellants to show immediate and “inevitable” harm. Perhaps that court made this error because of its mistaken belief that the only issue before it was whether a legislativerequirement for a Voter Photo ID
generally
was facially unconstitutional, rather thanwhether the hasty implementation of Act 18 for purposes of the November 6, 2012election violated the Pennsylvania Constitution.
2
 Additionally, I believe that Appellants have established that the availability of thePennDOT locations where the Commonwealth’s efforts are to take place are inadequateto the task in regard to the November election because of limited hours, limited(…continued)

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