A judge considering arguments over a politically charged Pennsylvania law that requires voters to show photo identification suggested Thursday he may strike part of it so that someone who doesn't have a valid ID at the polls can cast a provisional ballot.
Commonwealth Court Judge Robert Simpson made the suggestion toward the end of a hearing on the issue, and lawyers for the plaintiffs seeking to halt enforcement of the entire law before the Nov. 6 presidential election had only a minute to protest.
Simpson said he was seeking a way to target "the part of the act that's the offending activity, the disenfranchising part."
If Simpson follows through on his suggestion, it would effectively hand a victory to the state by leaving most of the 6-month-old law intact for the election, and the entire law intact for every election afterward.
The plaintiffs' lawyers contend the state's stumbling attempts to comply with the law have obstructed efforts among voters to get a photo ID, violated the spirit of the law, and ensured that some people will be unable to exercise their right to vote, particularly young adults, poor people, minorities, the elderly and the disabled. They say many Pennsylvania voters still are not aware of the new law.
Among the toughest in the nation, the law has sparked debate over voting rights and has become a partisan lightning rod in the contest between Democratic President Barack Obama and Republican presidential nominee Mitt Romney for Pennsylvania's prized 20 electoral votes.
Witnesses testifying for the plaintiffs Thursday told of making numerous trips to driver license centers to confront clerks who seemed equally confused by a bureaucratic maze of IDs, requirements and paperwork.
On Tuesday, the first day of testimony, Simpson sought ideas from lawyers on both sides on what an injunction should look like. Alicia Hickok, a lawyer representing Gov. Tom Corbett in the case, made a suggestion Thursday similar to Simpson's, saying it would avoid the "destruction and chaos" of striking an entire law that the state has tried for months to comply with and enforce.
But Witold Walczak, an American Civil Liberties Union lawyer helping to represent the plaintiffs, objected to Simpson's idea, saying that forcing people to vote on a provisional ballot could cause problems -- possibly overwhelming county election offices that may not be able to process a surge of provisional ballots.
He likened Simpson's suggestion to judicial lawmaking and contended that continuing to broadcast the message that a photo ID is necessary to vote would cause people without one to stay home.
The constitutionality of the law is not a question in front of Simpson. But the judge is under orders from the state Supreme Court to halt enforcement of the law if he finds the state has not met the law's promise of providing free and easy access to a photo ID or if he believes it will prevent any registered voters from casting a ballot.
Simpson must rule by Tuesday, just five weeks before the election. State officials say they believe the number of people who need an ID to vote is small -- the state had issued less than 11,000 free IDs as of Monday -- and they contend that a new form of voting-only ID and a streamlined process to qualify for one should comply with the Supreme Court's directions. But critics of the law say the Legislature intended that photo ID cards be freely available in March, when the law passed, not with just a few weeks left before the election.