HARRISBURG - A Commonwealth Court judge yesterday effectively allowed counties to let voters wear partisan attire to the polls and refused to clamp down on the voter-registration group ACORN as the state Republican Party had sought.
Judge Robert Simpson Jr., who presided over separate hearings on the issues earlier this week, did not resolve the underlying question of whether a T-shirt or button bearing a political message amounts to the "electioneering" that state law prohibits inside polling places.
But Simpson said he was concerned about the legal basis for letting voters wear such items in the polling places but not allowing others, such as poll workers or watchers, to do so. That aspect of the case, he said, was not fully explored.
Two Pittsburgh-area elections officials had argued that the Pennsylvania Department of State should not have issued a memo in September advising counties they should let voters in partisan attire cast ballots. According to the department, 38 of Pennsylvania's 67 counties, including Philadelphia and Montgomery, said they would allow campaign-related attire.
Simpson said the state has the right to provide such opinions.
"One can imagine a voter's sartorial zeal which would test the limits of advice in the memo," Simpson concluded. "In the end, however, a court cannot mandate common sense or good taste. Rather, your writer is confined to encouraging all participants to calmly exercise both."
Department of State chief counsel Al Masland said the advice was issued in response to questions, and was aimed at enfranchising people.
"We always said the most important thing is that no voter is turned away from the polls, no matter what they're wearing," he said.
Phone messages for Ron Hicks and Linda A. Kerns, lawyers for the elections officers who sued, were not immediately returned.
In the other case, Simpson refused the state Republican Party's request to order ACORN to turn over a list of the 140,000 Pennsylvania voters it says it has registered and to order the community activist group to air public-service announcements reminding first-time voters that they must bring identification to the polls.
Simpson said he was not convinced that the party and its fellow individual plaintiffs can ultimately prove their allegations that ACORN is fostering voter-registration fraud and that the state's election system lacks the safeguards to stop it.
"To date the court has seen through the ridiculous assertion about voter fraud in Pennsylvania, and has seen this suit for what it is, an attempt at voter suppression," said ACORN spokesman Brian Kettenring.
The suit, which argued that the state's election system is not adequate to guard against the fraud the party and individuals accuse ACORN of promoting, also named Secretary of State Pedro A. Cortés as a defendant.
Cortés called the lawsuit's allegations against the state "a frivolous attempt to undermine voter confidence."
Masland said the judge's ruling showed there is no legal basis to proceed against the state at this stage.