Received 02/03/2014 Commonwealth Court of Pennsylvania
`
`Filed 02/03/2014 Commonwealth Court of Pennsylvania
`330 MD 2012
`
`IN THE COMMONWEALTH COURT OF PENNSYLVANIA
`
`WILOLA SHINHOLSTER LEE; BEA
`BOOKLER; THE LEAGUE OF WOMEN
`VOTERS OF PENNSYLVANIA;
`NATIONAL ASSOCIATION FOR TILE
`ADVANCEMENT OF COLORED PEOPLE,
`PENNSYLVANIA STATE CONFERENCE;
`and HOMELESS ADVOCACY PROJECT,
`Petitioners,
`
`v.
`
`THOMAS W. CORBETT, in his capacity as
`Governor; and CAROL AICIIELE, in her
`capacity as Secretary of the Commonvvealth,
`Respondents.
`
`Docket No. 330 M.D. 2012
`
`ORDER
`
`AND NOW, on this
`
`day of February, 2014, upon consideration of Respondents'
`
`Application for Argument Before an En Bane Panel made pursuant to Pa.R.A.P. 123 and 3713,
`
`and any response thereto, it is hereby ORDERED that the Application is GRANTED.
`
`Accordingly, motions for post-trial relief in this case shall be heard by an en bane panel
`
`established in accordance vvith LOT. §§ 111 and 112.
`
`BY THE COURT:
`
`J.
`
`

`

`DRINKER BIDDLE & REATH LLP
`Alfred W. Putnam, Jr.
`D. Alicia Hickok
`Todd N. Hutchison
`One Logan Square, Suite 2000
`Philadelphia, PA 19103
`(215) 988-2700
`alfred.putnarndbr.com
`alicia.hickok@Obr.com
`toddlutchison@dbr.corn
`
`KATHLEEN G. KANE
`Attorney General
`TIMOTHY P. KEATING
`Senior Deputy Attorney General
`Office of the Attorney General
`Strawberry Square, 15th Floor
`Harrisburg, PA 17120
`(717) 705-8580
`tkeating@attorneygeneral.gov
`
`A ttorneys for Respondents
`
`IN THE COMMONWEALTH COUR.T OF PENNSYLVANIA
`
`WILMA SHINHOLSTER LEE; BEA
`BOOKLER; THE LEAGUE OF WOMEN
`VOTERS OF PENNSYLVANIA;
`NATIONAL ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED PEOPLE,
`PENNSYLVANIA STATE CONFERENCE;
`and HOMELESS ADVOCACY PROJECT,
`Petitioners,
`
`v.
`
`THOMAS W. CORBETT, in his capacity as
`Governor; and CAROL AICHELE, in her
`capacity as Secretary of the Commonwealth,
`Respondents.
`
`Docket No. 330 M.D. 2012
`
`RESPONDENTS APPLICATION FOR ARGUMENT BEFORE AN EN BANC PANEL
`
`

`

`Governor Corbett and Secretary of the Commonwealth Aichele, Respondents in the
`
`above-captioned matter, respectfully request that motions for post-trial relief (including
`
`Respondents motion currently pending before the Court — a copy of which is attached to this
`
`application as an appendix — be heard by an en bane panel of this Court. Respondents make this
`
`application pursuant to Pennsylvania Rules of Appellate Procedure 123 and 3713 (permitting a
`
`party to request, or the Court sua sponte to direct, en ham argument after the record has been
`
`made), and in accordance with the Court's Internal Operating Procedures at §§ 111 and 112.
`
`In support of their application. Respondents state as follows:
`
`1.
`
`This action for declaratory judgment and equitable relief, addressed to the Court's
`
`original jurisdiction, has been pending since May 2012. Substantial proceedings — including
`
`preliminary injunction hearings and a final merits trial — have been conducted over many days
`
`before two commissioned judges of the Court. In addition, the Supreme Court in September
`
`2012 reviewed this Court's initial order denying Petitioners' application for preliminary
`
`injunction and remanded for an additional evidentiary hearing. See Applewhiie v.
`
`Commonwealth, 54 A.3d I (Pa. 2012).
`
`2.
`
`This matter is of trernendous public importance_ Petitioners challenge the
`
`constitutionality of substantial amendments made to the Pennsylvania Election Code that the
`
`Cieneral Assembly enacted in the exercise of its unquestioned power to regulate elections and
`
`that affect millions of Pennsylvania voters_ See Act 2012-18, §§ 2, 3 (adding to the Election
`
`Code a new § 206 {25 P.S. § 26261 and amending § 1210 [25 P.S. § 3050]).
`
`3.
`
`After trial, the judge assigned by the Court to preside ruled in his decision and
`
`verdict that the challenged statute is unconstitutional under Pa. Const, art. 1, § 5 (providing that
`..lejlections shall be free and equar), Therefore, the trial judge has determined, this Court must
`
`

`

`enter a declaratory judgment to that effect and issue a permanent injunction against Respondents
`
`— representatives of the Executive Branch — prohibiting them ti-orn administering or enforcing the
`
`commands of the law.
`
`4.
`
`The trial judge's ruling includes an unprecedented holding that strict scrutiny
`
`applies to legislation regulating elections under Article I. § 5, of the Pennsylvania
`
`Constitution. Respondents challenge to this ruling — and the other decisions of constitutional
`
`import that the trial judge made should be considered by the Court en bane.
`
`5.
`
`In addition, Respondents have raised for review through their timely motion for
`
`post-trial relief several important issues pertaining to statutory construction and the proper
`
`vveight to be given to the public policy determinations made by the Legislature, as well as the
`
`scope of administrative authority and discretion and the challenges to implementation on which
`
`the trial judge relied in concluding that the law as enacted by the General Assembly is
`
`unconstitutional and that its implementation by the executive must be permanently enjoined.
`
`6.
`
`The foundational issues of constitutional law and the statutory construction
`
`questions that are integral to the constitutional analysis, as well as the importance to millions of
`
`Pennsylvania voters of the public policy that the statute at issue represents, deserve consideration
`
`by an en bane panel of this Court.
`
`7.
`
`This Court has long demonstrated its understanding of the special jurisprudential
`
`responsibility it has over the constitutionality and proper construction of the Commonwealth's
`
`election laws in considering such matters through an en bane court even when there has not yet
`
`been a hearing or opportunity for development of the record. See, e.g., Bonfield v. Aiehele, 51
`
`A.3d 300 (Pa. Cmwlth. 2012) (consideration of application thr summary relief en bane); Bonfield
`
`v. Cortes, 922 A.2d 36 (Pa. Cmwlth. 2007) (consideration of preliminary objections en bane);
`
`2
`
`

`

`Mixon v. Commonwealth, 759 A.2d 442 (Pa. Cmw1th. 2000) (consideration (A-preliminary
`
`objections en ham). In this case, of course. there have been three hearings, and the record has
`
`been made. Thus, application of Rule 3713 is appropriate.
`
`8.
`
`Respondents respectfully submit that this case is particularly appropriate for en
`
`hanc consideration because it requires the Court to weigh the interests that every Pennsylvanian
`
`has in protecting the right to vote and in having his or her properly cast vote counted equally.
`
`See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997).
`
`- .3 -
`
`

`

`WHEREFORE, Respondents respectfully request that this Court consider motions for
`
`post-trial relief in the above-captioned matter through an en ham: panel.
`
`Dated: February 3, 2014
`
`Respectfully submitted,
`
`DRINKER BIDDLE & REATH LLP
`
`By: /s/D. Alicia Hickok
`Alfred W. Putnam, Jr.
`D. Alicia Hickok
`Toddl\T_ Hutchison
`One Logan Square, Suite 2000
`Philadelphia. PA 19103
`(215) 988-2700
`al li-ed.puinarn(64br,com
`al icia, hickoladbr.com
`.
`,
`td.hutclus,on(crubr.Lorrt
`
`KATHLEEN Ci. KANE
`Attorney General
`TIMOTHY P. KEATING
`Senior Deputy Attorney General
`Office of the Attorney General
`Strawberry Square, 15th Floor
`Harrisburg, PA 17120
`(717) 705-8580
`Ikea-0 ngivkiuorne2. general.p
`
`Attorneys for Respondents
`
`- 4
`
`

`

`APPENDIXW
`
`

`

`Received 01/27/2014 Commonwealth Court of Pennsylvania
`
`IN THE COMMONWEALTH COURT OF PENNSYLVANIA
`
`WILOLA SHINHOLSTER LEE; BEA
`BOOKLER; THE LEAGUE OF WOMEN
`VOTERS OF PENNSYLVANIA;
`NATIONAL ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED PEOPLE.
`PENNSYLVANIA STATE CONFERENCE;
`and HOMELESS ADVOCACY PROJECT.
`Petitioners,
`
`v.
`
`THOMAS W. CORBETT, in his capacity as
`Governor; arid CAROL AICIIELE. in her
`capacity as Secretary of the Commonwealth,
`Respondents,
`
`Docket No. 330 M.D. 2012
`
`ORDER
`
`AND NOW, on this
`
`day of
`
`. 2014. upon consideration of
`
`Respondents Post-trial Motion Pursuant to Pa.R.C.P. No. 227.1, and any response thereto, it is
`
`hereby ORDERED that the Motion is GRANTED. It is hereby Ordered that the Order & Verdict
`
`dated January 17, 2014. is set aside and judgment is directed in favor of Respondents and against
`
`Petitioners on all causes of action pursuant to Rule 227.1(0(2).
`
`BY THE COURT:
`
`J.
`
`

`

`DRINKER BIDDLE & REATH LLP
`Alfred W. Putnam, Jr.
`D. Alicia Hickok
`Todd N. Hutchison
`One Logan Square, Suite 2000
`Philadelphia, PA 19103
`(215) 988-2700
`alfred.putnam@dbr.com
`alicia.hickok@dbr.com
`todd.hutchisongdbr.com
`
`KATHLEEN G. KANE
`Attorney General
`TIMOTIIY P. KEATING
`Senior Deputy Attorney General
`Office of thc Attorney General
`Strawberry Square, 15th Floor
`Harrisburg, PA 17120
`(717) 705-8580
`tkeating@attorneygeneraLgov
`
`Attorneys fir Respondents
`
`IN THE COMMONWEALTH COURT OF PENNSYLVANIA
`
`WILOLA SIUNHOLSTER LEE; BEA
`BOOKLER; THE LEAGUE OF WOMEN
`VOTERS OF PENNSYLVANIA;
`NATIONAL ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED PEOPLE,
`PENNSYLVANIA STATE CONFERENCE;
`and HOMELESS ADVOCACY PROJECT,
`Petitioners,
`
`v.
`
`THOMAS W. CORBETT, in his capacity as
`Governor; and CAROL AICIIELE, in her
`capacity as Secretary of the Commonwealth,
`Respondents,
`
`Docket No. 330 M.D. 2012
`
`RESPONDENTS POST-TRIAL MOTION PURSUANT TO Pa.R.C.P. No. 227.1
`
`

`

`In accordance with Rule 227.1 of the Pennsylvania Rules of Civil Procedure and this
`
`Court's scheduling orders as incorporated into the January 17, 2014 Order, Respondents Thomas
`
`W. Corbett, in his capacity as Governor, and Carol Aichele, in her capacity as Secretary of the
`
`Commonwealth, hereby submit the following motion pursuant to Rule 227.1 (a)(1), (2), and (4).
`
`1.
`
`INTRODUCTION
`
`A judge of this Court (Judge McGinley) conducted the permanent injunction hearing in
`
`this case. The permanent injunction proceedings built upon the record of a lengthy preliminary
`
`injunction hearing conducted by another judge of this Court (Judge Simpson), full consideration
`
`by the Pennsylvania Supreme Court of Petitioners appeal of this Court's denial of preliminary
`
`injunctive relief, a remand to this Court for further consideration of the preliminary injunction
`
`request based on Supreme Court instructions, and additional preliminary injunction proceedings
`
`conducted by Judge Simpson in accordance with the remand order. The trial judge's verdict and
`
`decision issued in this case is not consonant with the opinion of the Supreme Court, departs from
`
`established principles of statutory construction, and employs a flawed constitutional standard.
`
`This Court should correct those errors of law.
`
`In its opinion in Applewhite v. Comnmnveuith, 54 A.3d 1 (Pa. 2012) (per curiani)
`
`(Applewhite 11), the Supreme Court cited and expressed agreement with Petitioners' concession
`
`made during oral argument that "there is no constitutional impediment to the Commonwealth's
`
`implementation of a voter identification requirement, at least in the abstract." Id. at 4-5. It is
`
`against the backdrop of the Supreme Court's express validation of the General Assembly's
`
`constitutional power to require photo identification of voters and the manner in which it chose to
`
`do so in Act 2012-18 that Petitioners' challenge to that law must be judged by this Court.
`
`

`

`In evaluating the evidence presented at the permanent injunction hearing, this Court
`
`properly recognized that Petitioners claim based on the equal protection provisions of the
`
`Pennsylvania Constitution must fail. That is so because Pennsylvania's equal protection
`
`guarantees are coterminous with those granted under the Equal Protection Clause of the
`
`Fourteenth Amendment, and the U.S. Supreme Court has rejected a similar equal protection
`
`claim challenging a substantially similar state law. Nonetheless, this Court's trial judge declared
`
`void all of thc photo identification provisions included in Act 18 based on the Pennsylvania
`
`Constitution's Free and Equal Elections Clause, despite thc fact that the protections under the
`
`Free and Equal Clause are no greater than those under the Equal Protection Clause.
`
`Because the trial judge so invalidated the statute without employing proper statutory or
`
`constitutional analysis and without requiring Petitioners to sustain their burden. Respondents
`
`respectfully request that this Court correct the errors of the trial judge in its final determination of
`
`this case.
`
`Act 18 was enacted to protect the integrity of the electoral process and to better assure the
`
`people of the Commonwealth that only qualified electors are casting ballots. Toward that end.
`
`the General Assembly required that all who present themselves to vote produce proof of
`
`identification before they are able to cast a ballot. To enable aIl qualified electors to obtain proof
`
`of identification, the General Assembly crafted a provision designed to ensure that anyone who
`
`needs compliant ID would be able to get it from the Department of Transportation MOT"), an
`
`agency that already provides 9.8 million Pennsylvanians with secure identification. To make it
`
`liberally accessible and free, the General Assembly provided for exceptions to the requirements
`
`imposed by DOT and the General Assembly to obtain a secure identification.
`
`- 2 -
`
`

`

`To accommodate those who — for whatever reason — would not be able to obtain
`
`identification from DOT, the General Assembly has provided four alternatives: (1) several forms
`
`of acceptable identification that most people who do not have a DOT-issued driver's license
`
`would have or could readily obtain; (2) an indigene), provision giving a person who is unable
`
`because of the costs involved in obtaining proof of identification from DOT an alternative way to
`
`qualify to vote: (3) absentee ballot provisions for those who are not sufficiently mobile to vote at
`
`a polling place or are away from their home municipality on Election Day: and (4) the right of a
`
`voter to cast a provisional ballot if he or she is unable to present proof of identification at the
`
`polling place.
`
`Judge McGinley declared the statute to be facially invalid under the Free and Equal
`
`Elections Clause of the Pennsylvania Constitution because he found that the way in which the
`
`Department of State and DOT are (and were) implementing the law is (and was) faulty. Said
`
`another way, Judge McGinley decided that the executive agencies implementation of the statute
`
`in a manner different than the trial judge believed the General Assembly intended is a proper
`
`measure of whether the statute itself is constitutional on its face. This conclusion was error. The
`
`statute cannot be declared facially unconstitutional based solely on flaws found in the
`
`executive's reading or administration of the statute.
`
`Moreover, the trial judge committed error in interpreting the statute. These errors of
`
`statutory construction further undermine the trial judge's constitutional analysis. Compounding
`
`his misinterpretation of the statute, the trial judge found that there are "hundreds of thousands- of
`
`people harmed by the flawed implementation of the statute based upon a statistical assessment of
`
`DOT products and out-of-court assertions made by two Petitioners who did not even testify. If a
`
`law is to be struck down based on the harm it will cause to qualified electors, the decision should
`
`- 3 -
`
`

`

`be grounded on evidence showing harm to actual people not arguments made by lawyers
`
`designed to make it sound like some people out therc might be hurt by the law's application.
`
`Judge McGinley concluded: "Like a house of cards. everything rises and falls upon the
`
`legitimacy of the [Department of State] ID [("DOS ID"] . . . . fT]he DOS ID is an unauthorized
`
`agency creation, and difficult to obtain." Op. at 35.1 From that statement, Judge McGinley
`
`concluded that the law itself is facially unconstitutional. Using implementation as the measure
`
`of the statute itself, the trial judge found that the right to vote should be subject to a strict
`
`scrutiny standard. and that (I) the burden and inconvenience of getting photo ID from DOT
`
`amounts to a denial of the right to vote; (2) the alternatives that the General Assembly put in
`
`place are of no significance; and (3) the General Assembly did not have a compelling reason to
`
`enact the law, did not list enough forms of alternative identification. and did not mandate that the
`
`issuers provide those forms of identification.
`
`These conclusions do not give proper deference to the role of the Secretary of the
`
`Commonwealth, the statutory authorization, or the public policy that favors agency cooperation.
`
`The DOS ID is not ultra vires. Because it is not, ordinary principles of statutory construction
`
`show that the General Assembly properly crafted a statute to protect the interests of its citizens
`
`while enhancing thc integrity — and the perception of integrity — of elections.
`
`The statute was intended to be, and is in practice, a regulation of the exercise of the right
`
`to vote; and it is valid as enacted. If the trial judge had employed proper constitutional analysis,
`
`he would not have seen the statute as a house of cards construct, but as a caretillly integrated
`
`The trial trial judge's decision was comprised of three documents: an Opinion ("Op."),
`Findings of Fact ("FOF"). and Conclusions of Law rCOL-).
`
`- 4 -
`
`

`

`measure to protect the right of all to vote without having legitimate votes diluted by fraudulent
`
`votes cast by those who are not eligible to vote.
`
`Even if, arguendo, there are areas of administrative implementation that do not fully
`
`carry forth the intent or the letter of the statute or satisfy constitutional limits, it is not the
`
`practice or proper role of courts to declare the statute at issue facially unconstitutional. Rather, a
`
`court that rinds flawed implementation of a statute should declare the proper interpretation of the
`
`statute, instruct in the means of administration that are mandated by the statute and the
`
`Constitution, and require through declaratory and equitable measures that the statute be
`
`implemented and administered properly. That is precisely what the Supreme Court did in
`
`Applewhite 11 in issuing its instructions to this Court on remand for further consideration of
`
`Petitioners request for a preliminary injunction. Indeed, the Department of State on its own
`
`initiative responded immediately following Applewhite 11- to modify its administrative procedures
`
`to comply with the Supreme Court's instruction.
`
`ln the matter before the Court now, the verdict and decision of the trial judge is replete
`
`with criticism as to how DOT and the Department of State failed to respond sufficiently to the
`
`Supreine Court's direction in Applewhhe Hand did not execute well enough their responsibilities
`
`under the law. But rather than instruct them in the proper interpretation of the statute and the
`
`required manner for its implementation, the trial judge leaped to the illogical conclusion that the
`
`statute itself is facially unconstitutional and must be permanently enjoined. This was error.
`
`If there are ways in which the agencies have erred in their construction of the statute or in
`
`their efforts to implement the statute as mandated by the General Assembly and consistent with
`
`constitutional commands. the proper role of the Court — exercising its powers as a court of equity
`
`— is to authoritatively interpret the statute and instruct the executive as to the manner in which it
`
`- 5 -
`
`

`

`must be administered to comply with the law. As they have demonstrated throughout these
`
`proceedings, the Secretary of the Commonwealth and other executive officials are ready, willing,
`
`and able to implement the statute as required by law and for the welfare and benefit of all
`
`Pennsylvanians.
`
`II.
`
`POST-TRIAL MOTION
`
`A.
`
`The Trial Judge Erred in His Approach to Statutory Construction and in thc
`Conclusions He Reached Based Upon that Flawed Approach.
`
`1.
`
`At page 35 of his decision, the trial judge summarized his opinion thusly:
`
`Like a house of cards, everything rises and falls upon the legitimacy of the DOS
`ID. As analyzed above, the DOS ID is an unauthorized agency creation, and
`difficult to obtain.
`
`From that statement, the trial judge concluded that the law itself is facially unconstitutional. Op.
`
`at 35.
`
`2.
`
`To reach these conclusions, the trial judge construed Act 18 without actually
`
`applying or adhering to statutory construction principles and by ignoring well-established
`
`presumptions regarding the way in which courts review executive and legislative action.
`
`Accordingly. Respondents arc entitled to have the verdict set aside and judgment directed in their
`
`favor pursuant to Rule 227.10)(2). The following sections explain in greater depth the trial
`
`judge's statutory construction errors and their effects.
`
`1.
`
`The Trial Judge Erred in Ignoring Established Principles of Statutory
`Construction.
`
`Places of Preservation: Respondents Pretrial Memorandum; Respondents'
`Proposed Conclusions or Law; Respondents' Brief in Support of Proposed
`Findings of Fact and Conclusions of Law
`
`3.
`
`First and foremost, the principles of statutory construction do not ask a court to
`
`find everything that could be construed as problematic in a statute and then identify the
`
`- 6 -
`
`

`

`problematic construction as controlling and indicative of unconstitutionality. Instead, the
`
`Statutoty Construction Act of 1972 is clear that courts are to presume that the General Assembly
`
`"does not intend a result that is absurd, impossible of execution, or unreasonable"; that it
`
`"intends the entire statute to be effective and certain"; that it does not intend to violate the
`
`Pennsylvania or United States Constitution: that the same construction is to be placed on
`
`language as the Supreme Court has employed in predecessor statutes; and that it -intends to
`
`favor the public interest as against any private interest." 1 Pa.C.S. § 1922.
`
`4.
`
`The trial judge's decision is replete with reversed presumptions, ranging from its
`
`condemnation of indigency as "[tm]defined" in the statute, to its conclusion that indigence is "a
`
`difficult. if not impossible status to profess, much less affirm under criminal penalties, when
`
`Respondents ostensibly provide 'free compliant photo ID." Op. at 43; COL 25.
`
`5.
`
`In general, "[a]n adrninistrative agency has 'wide discretion in establishing rules,
`
`regulations and standards, and also in the performance of its administrative duties and functions.
`
`Where an agency has not abused its discretion in the exercise of its duties or functions, we must
`
`defer to its expertise and cannot substitute judicial discretion for administrative discretion."'
`
`Daneker v. State Emps. • Rel. Bd.. 156 Pa. Cmwith. 511, 520-21, 628 A.2d 491, 496 (1993)
`
`(citations omitted). Indeed, the Supreme Court has defined the measure of whether an agency
`
`acts "in accordance with law" as whether the decision "was made in bad faith, and whether it
`
`was fraudulent or capricious.- Sktwek v. CurwIth. Bd qf Med. Educ. & Licensure. 526 Pa. 316,
`
`321, 586 A.2d 362, 365 (1991).
`
`- 7 -
`
`

`

`2.
`
`The Trial Judge Erred in Concluding that the DOS ID was Ultra
`Vires.
`
`Places of. Preservation; Respondents Answer to Amended Petition for Review
`with New Matter; Respondents' Pretrial Memorandum; Respondents' Proposed
`Findings of Fact and Conclusions of Law; Respondents' Brief in Support of
`their Proposed Findings of Fact and Conclusions of Law
`
`6.
`
`'ate trial judge's conclusion that the "DOS ID" card is "unauthorizee and thus
`
`incapable of satisfying the statutory requirements is grounded in three incorrect constructions of
`
`the statute: the misapprehension of the breadth of the Secretary's role; the meaning of the word
`
`"issue; and the requirements placed on DOT by section 206(b) of the Election Code, 25 P.S. §
`
`2626(b). These are legal errors that separately and together warrant overturning the verdict and
`
`entering judgment in Respondents' favor.
`
`7.
`
`Section 206 of the Election Code (25 RS. § 2626) is part of Article II, titled "The
`
`Secretary of the Commonwealth." The Secretary's authority includes, inter alio, "prescrib[ing]
`
`suitable rules and regulations to carry out the provisions of the [Election Code]," 25 P.S. §
`
`3260(2), and "exercisring] in the manner provided by [Election Code] all powers granted," 25
`
`RS. § 2621.
`
`8.
`
`The Supreme Court has recognized that the Secretary has great discretion in
`
`carrying out her responsibilities, including the implementation of applicable federal and state
`
`law. See Kuznik v. Westmoreland Cnty. Bd. of Comm 'rs. 588 Pa. 95, 149, 902 A.2d 476, 508
`
`(2006); see also id. at 143, 902 A.2d at 504.
`
`9.
`
`Both DOT and the Department of State are specifically referenced in section
`
`206(b) of the Election Code, 25 P.S. § 2626(b). Since the 1990s, the Department of
`
`Transportation and the Department a State have worked together to fulfill obligations under
`
`federal and state election law. FOF 42; R-2 (Memorandum of Understanding re Voter
`
`Registration Applications), June 10, 2002; R-3 (Memorandum of understanding re HAVA and
`
`- 8 -
`
`

`

`SURE). October 5, 2005; R-4 (Memorandum of Understanding re issuance, replacement, and
`
`updating of Voter 1Ds), August 15, 2012; R-5 (Memorandum of Understanding, amended)
`
`September 24, 2011
`
`3.
`
`The Trial Judge Erred in Concluding that the Department of State
`!Usurped DOT's Role as Issuer of the ID under Section 206(b) of the
`Election Code.
`
`Places of Preservation: Respondents' Answer to Amended Petition for Review
`with New Matter; Respondents Pretrial Memorandum; Respondents' Proposed
`Conclusions of Law; Respondents' Brief in Support of Proposed Findings of
`Fact and Conclusions of Law
`
`I 0. DOT is issuing the "DOS !EY' card, and the trial judge erred as a matter of law in
`
`characterizing the card as issued by the Department of State. Indeed. at note 19 of his decision,
`
`the trial judge candidly credited the testimony that -the DOS ID rnust be issued through
`
`PennDOT in order to comport with the statute,- but then turned this statement on its head.
`
`reasoning that if the DOS ID were just another form of a Commonwealth ID, it could be
`
`distributed anywhere - e.g.,"at any county election office or polling place, and truly address the
`
`liberal access criticism.- Op. at 21 n.19. The August 2012 Memorandum of Understanding
`
`states: -PennDOT shall issue a DOS Voter ID ....- R-3.
`
`11.
`
`The ordinary meaninc4 of "issue" includes, ioierolia,-to send out or distribute
`
`Stas v. Pa. Sec. Comm 'pl. 910 A.2d 125, 130 (Pa. Cmwlth. 2006) (citation omitted).
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`I fere, the distributor of the card is DOT. To be issued by DOT the identification need not be
`
`generated solely based on DO r records. Office of the Governor v. Raffle, 65 A.3d 1105, 1110-
`
`11 (Pa. Crnwith. 2013) (en bane). In the same way. DOT issues the DOS ID based on
`
`Department of State records, which is consistent with section 206(b) of the Election Code, 25
`
`P.S.
`
`- 9 -
`
`

`

`4.
`
`The Trial Judge Erred in Concluding that DOT had no Flexibility
`under Section 206(b) oîthc Election Code.
`
`Phices of Preservation: Respondents Pretrial Metnorandurn; Respondents'
`Proposed Findings of Fact and Conclusions of Law; Respondents' Brief in
`Support of Proposed Findings of Fact and Conclusions of Law
`
`12.
`
`Section 206(b) of the Election Code provides that.,-Notwithstanding the
`
`provisions of 75 Pa.C.S. ,§ 1510(N," DOT shall "issue an identification card described in 75
`
`Pa.C.S. § 1510(b) at no cost to any registered elector who . . . sign[s] .. [an] oath or
`
`affirmation.- 25 P.S. § 2626(b) (emphasis added). In his decision. the trial judge sitnply
`
`concluded that DOT is not — issuing' the free ID." Op. at 18; see FOF 46. The judge put an
`
`entirely different gloss on that finding in his findings of fact. however. characterizing DOT as
`
`having "refused to implement . the Voter ID Law in accordance with its terms," FOF 114, and
`
`considering that to have prompted the Department of State to act in an ultra vires manner.
`
`13.
`
`The first question that the trial judge needed to ask — but did not — is how the
`
`exception — the "notwithstanding" language in section 206(b) of the Election Code (25 P.S. §
`
`2626(b)) — affects the general practice in 75 Pa.C.S. § 1510(b). Given that the remainder of
`
`section 206(b) calls for "a" card '-described,- it is clear that the General Assembly intended DOT
`
`to issue a card to registered electors, that the card be free, that the only documentation be an oath
`
`or affirmation. and that whatever requirements in 75 Pa.C.S. § I 510(b) stand in the way of such a
`
`card bc rernoved. See also Commonwealth v. Ramos, No. I 1 MAP 2013, 2013 Pa. LEXIS 3246,
`
`at *4 n.3 (Dec. 27, 2013).
`
`14. DOT retained many of thc features (including facial recognition software —see
`
`Op. at 7 n.11) of a secure card issued under 75 Pa.C.S. § 1510(b), and eliminated only those
`
`features that were inconsistent with the specific requirements in section 206(b) of the Election
`
`- 10 -
`
`

`

`Code, 25 P.S. § 2626(b). One of the features that needed to be elirninated was the "look" and
`
`narne" that a conventional 75 Pa.C.S. § 1510(b) card has.
`
`5.
`
`The Trial .hidge Erred in Making Findings about 75 Pa.C.S. § 1510(b)
`and its Implementing Regulations — And in Enjoining DOT.
`
`Places ofPreservation: Answer to Amended Petition fir Review with New
`Matter
`
`15.
`
`As the trial judge saw it, if there is no DOS ID. there is only the secure DOT ID.
`
`And although DOT is not a party and there is no challenge to 75 Pa.C.S. § 15 I O(b). the trial
`
`judae found: "The rigorous documentation requirernent PennDOT imposes for issuance of its
`
`secure IDs disenfranchises qualified electors, and is facially unconstitutional." COL 31, It was
`
`error for the trial judge to so conclude. Commonirvealth v. Alessi, 119 Pa. CmwIth. 160, 163-64,
`
`546 A.2d 157. 158-59 (1988); Consulting Eng'rs Council v. State Architects Lieensure Bd., 522
`
`Pa. 204, 211-12, 560 A.2d 1375, 1378-79 (1989).
`
`6.
`
`The Trial .ludge Erred in Holding that the Statute was Deficient
`because Certain Terms were Undefined.
`
`Places of Preservation: Respondents Proposed Findings of Fact and Proposed
`Conclusions of Law; Respondents' Brief-in Support of Proposed Findings of
`Fact and Conclusilms of Law; during the preliminary injunction and
`permanent injunction hearings
`
`16.
`
`The trial judge also erred when he took the General Assembly to task for failing
`
`to define "indigene)," and -substantially conforrre within the statute. See COL 25. If every
`
`term in every statute had to be defined before any law could be implemented. 1 Pa.C.S. §
`
`1921(c) — the statutory construction principles "[w]hen the words of a statute are not explicit.'" —
`
`would thernselves be superfluous.
`
`

`

`7.
`
`The Trial Judge Erred in Holding that the Statute Did Not Provide
`Safety Nets.
`
`Places of Preservation: Respondents Answer to Amended Petition for Review
`with New Matter; Respondents' Proposed Findings of Fact and Conclusions of
`Law; Respondents' Brief in Support of Proposed Findings of Fact and
`Conclusions ofLaw
`
`17.
`
`It was particularly problematic for the trial judge to disregard indigency by using
`
`the fact that it was undefined as evidence that the General Assembly had failed to incorporate
`
`safety nets, and then to conclude that the lack of such a safety net rendered the statute infirm.
`
`See COL 25; FOF 112. The judge conceded that the General Assembly included the indigency
`
`and provisional ballot provisions, but he considered indigene)/ a difficuk, if not impossible
`
`status to profess, much less affimi under criminal penalties, when Respondents ostensibly
`
`provide 'free' compliant photo ID.- Op. at 43.
`
`18.
`
`Indigency has been defined in Pennsylvania law. Health Care & Rel. Corp. v.
`
`Pittas, 46 A.3d 719, 723-24 (Pa. Super. 2012), pet. for allowance of appeal denied, 63 A.3d
`
`1248 (Pa. 2(J13) (citations omitted); cf. 35 P.S. § 449.3 (Health Care Cost Containment Act);
`
`Prudential Prop. & Cas. Ins. Co. v. Sartno, 588 Pa. 205, 903 A.2d 1170 (2006).
`
`19.
`
`The trial judge erred when he faulted the General Assembly for Failing to enact
`
`safety nets as broad as those in other states. Op. at 42-43. But the trial judge cited only to
`
`Indiana for the proposition that there is no provisional ballot. Only there is. Compare id., and
`
`COL 51. with Ind. Code Ann. § 3-10-1-7.2(d) (-If the voter executes a challenged voter's
`
`affidavit under section 9 [1C 3-10-1-9] of this chapter or IC 3-11-8-22.1. the voter may: .
`
`receive a provisional ballot." (ernphasis added)).
`
`

`

`8.
`
`The Trial Judge Erred in Finding that Alternate Forms of
`Identification Must be Mandatory to be Meaningful.
`
`Places of Preservation: Respondents Pretrial Memorandum; Respondents;
`Proposed Findings of Fact and Conclusions of Law; Respondents' Brief in
`Support of Proposed Findings of Fact and Conclusions of Law
`
`20.
`
`The trial judge also found fault in the General Assembly's failure to mand