By Cherri Gregg

PHILADELPHIA (CBS) – The Commonwealth Court is set to hear more evidence on the voter ID law next week. A legal expert explains why the Pennsylvania Supreme Court decided to punt the ball back to the lower court.

“I’m a little bit surprised that they didn’t go ahead and decide it on the merits,” says University of Pennsylvania Law School professor Kermit Roosevelt.  He says the Pennsylvania Supreme Court decision makes clear that while voter ID itself is constitutional, the Commonwealth’s roll out of the law, given the close proximity to the election, is problematic.

“What was motivating the Supreme Court was the fact that implementation of this law has been messed up in a pretty significant way,” says Roosevelt. “The Pennsylvania Department of Transportation was supposed issue these cards that would let people vote. And then it turned out that they couldn’t issue them as easily as they were supposed to because these cards have significance under federal law, which doesn’t allow you to just issue them the way the DOT was supposed to.”

Commonwealth Court Judge Robert Simpson is scheduled to hold a hearing in Harrisburg on September 25th at 10 a.m.  According to the order filed on Wednesday, the focus of that hearing will be the actual availability of the department of state “safety net” voter ID card, which was rolled out on August 27th.

In papers filed on Thursday, Plaintiff’s lawyers argue that the Commonwealth Court should issue an injunction without an evidentiary hearing since the DOS ID recipients must first be vetted by the PennDOT secure ID process.  The plaintiffs requested that the judge rule by Friday at 10 a.m.

But Roosevelt says if the hearing goes forward, the burden of proof shifts away from the plaintiffs.

“The tone of the Supreme Court opinion seems to suggest the burden has almost shifted to the state now, since the state has messed up once with its implementation, to show that they are doing it right this time,” he says.

But the burden is heavy and if the Commonwealth fails to meet the burden, the ruling casts a dark shadow, almost forcing the Commonwealth Court to take action.

“It seems very unlikely to me that the court could do anything but issue an injunction,” says Roosevelt. “The reasonable compromised solution would be to say, ‘sure, we’ll have a voter ID law, just not for this election.’”

A Department of State spokesman has said the Commonwealth will continue to educate voters and issue ID’s as long voter ID is the law of the land.