In 2012, the Pennsylvania legislature passed a law requiring everyone to present certain types of photo ID before voting – a requirement that could have disenfranchised many people who cannot obtain ID and created additional burdens that fall heavily on urban, low-income, minority, elderly, and disabled voters.
In conjunction with the ACLU of Pennsylvania, the Advancement Project, and Arnold & Porter LLP, the Law Center challenged the photo ID law in Commonwealth Court shortly after it went into effect in early 2012.
UPDATE: Governor Tom Corbett announced on May 8, 2014 that the state will not appeal a Commonwealth Court judge’s ruling that prohibits enforcement of Pennsylvania’s voter ID law.
Our clients in this case have included people like Viviette Applewhite, a 92-year-old African American woman who worked as a welder during World War II and marched with Dr. Martin Luther King, Jr., during the civil rights movement. Ms. Applewhite has voted in nearly every election since at least 1960, but she would have been unable to obtain identification that complied with the new law in time for the 2012 Presidential Election. Other plaintiffs include voter advocacy organizations such as the League of Women Voters, the NAACP, and the Homeless Advocacy Project.
This law could have disenfranchised hundreds of thousands of citizens, including individuals who cannot travel to Pa. Department of Transportation (PennDOT) centers because of work, limited mobility or limited resources; senior citizens whose records have been lost or destroyed over the years; veterans whose military ID cards are inadequate under the new law; and others with disabilities or limited assets for whom the law’s requirements would be unacceptably difficult to meet.
When we originally brought the case to trial in the summer of 2012, the Commonwealth Court failed to issue a preliminary injunction, an order that would have stopped the implementation of the law. In the early fall we took our appeal to the Pennsylvania Supreme Court. In September 2012, the Pennsylvania Supreme Court ordered the case be taken back to the Commonwealth Court for reconsideration. Through that trial we successfully secured a preliminary injunction of the law through the November 2012 and the May 2013 primaries. The law has since been permanently enjoined.
In the fall of 2012, Viviette, along with thousands of other citizens who did not have the newly required identification, was able to cast her vote and continue her 50-year-long tradition of participating in our democracy.
First Commonwealth Court Hearing
- Motion for Preliminary Injunction
- Court’s Scheduling Order
- Court’s Order Denying Intervention
- Petitioners’ Pre-Trial Brief, Motion for Preliminary Injunction
- Expert Reports presented by Petitioners
- Matt Barreto – Examination of the number of Pennsylvania voters who do not possess valid Voter ID
- Amanda Bergson-Shilcock – Description of the significant barriers to obtaining acceptable photo ID for naturalized US citizens and residents born in Puerto-Rico
- Michele Levy – Explanation of the barriers to obtaining birth certificates (necessary to obtain photo ID) for homeless individuals
- Veronic Ludt- Description of the obstacles to obtaining a birth certificate
- Lorraine Minnite – Providing evidence that there is no history of voter fraud by impersonation to necessitate a voter ID law
- Respondents’ Stipulation Regarding Voter Fraud
- Respondents’ Pre-Trial Brief
- Amicus Brief by the Pennsylvania AFL-CIO
- Amicus Brief by the SeniorLAW Center
- Amicus Brief by the City of Philadelphia
- Amicus Brief by Judge of Election Stephen Shapiro
- Amicus Brief by Allegheny County City Controller
- Amicus Brief by the Democratic Caucus
- Amicus Brief by Common Cause
- Amicus Brief by State Rep. Daryl Metcalfe et. al.
- Amicus Brief by George Ellis
- Trial Transcripts
- Petitioners’ Post-Hearing Brief
- Respondents’ Post-Hearing Brief
- Court’s Decision on Preliminary Injunction
- Notice of Appeal
- Jurisdictional Statement
- Petitioners’ Motion to Expedite
Supreme Court Appeal
- Appellant Brief
- Appellee Brief of the Commonwealth
- Appellee Brief of Corbett & Aichele
- Suggestion of Mootness
- Response to Suggestion of Mootness
- Amicus Briefs
- Supreme Court Decision
- Dissenting Opinion of Justice Todd
- Dissenting Opinion of Justice McCaffery
Second Commonwealth Court Hearing
- Petitioners’ Application for Entry of Preliminary Injunction without an Evidentiary Hearing
- Petitioners’ Pre-Hearing Brief
- Respondents’ Pre-Hearing Brief
- Declarations and Summaries
- Amicus Brief by the House Republican Caucus
- Hearing Transcript: September 25, 2012
- Hearing Transcript: September 27, 2012
- Petitioners’ Post-Hearing Brief
- Respondents’ Post-Hearing Brief
- Commonwealth Court Decision
- Petition for Supplemental Injunction
- Petition for Supplemental Injunction Exhibits
- Motion to Reconsider Response Time
Trial on Permanent Injunction
- Stipulation Extended Preliminary Injunction
- Discovery Order
- Petitioners’ Pretrial Brief
- Respondents’ Pretrial Memo
- Pretrial Conference Transcript
- Rules for July 2013 Trial on Permanent Injunction
- Expert Reports presented by Petitioners
- Notice of filing and report by Bernard R. Siskin, Ph.D. – analysis determining the number of registered voters who currently lack appropriate photo identification
- David A. Marker – analysis of critiques of survey presented in the first Commonwealth Court trial
- Lorraine C. Minnite – analysis of legislature’s claimed basis for implementing the voter ID law
- Diana C. Mutz, Ph.D. – analysis of the Commonwealth’s outreach and communications plan to inform voters of new requirements
- Respondent’s Expert Report
- Trial Transcripts
- Witness Video Deposition Transcript: Marian Baker
- Witness Video Deposition Transcript: Mina Kanter-Pripstein
- Witness Video Deposition Transcript: Catherine Howell
- Witness Video Deposition Transcript: Patricia Norton
- July 15, 2013 Transcript
- July 16, 2013 Transcript
- July 17, 2013 Transcript
- July 18, 2013 Transcript
- July 19, 2013 Transcript
- July 22, 2013 Transcript
- July 23, 2013 Transcript
- July 24, 2013 Transcript
- July 25, 2013 Transcript
- July 30, 2013 Transcript
- August 1, 2013 Transcript – Closing Arguments
- Petitioners’ Trial Exhibit 2136 – Analysis of “Exceptions” Spreadsheet
- Petitioners’ Closing Argument Slides
- Petitioners’ Post-Hearing Brief in Support of Application for Special Relief in the Nature of a Preliminary Injunction
- Respondents’ Post-Hearing Brief in Opposition to Petitioners’ Application for a Preliminary Injunction
- Determination on Renewed Application for Preliminary Injunction
- Petitioners’ Post-Hearing Brief – Proposed Findings of Fact and Conclusions of Law, Opposition to Motion for Compulsory Nonsuit
- Respondents’ Proposed Findings of Fact
- Respondents’ Proposed Conclusions of Law
- Respondents’ Brief in Support of Proposed Findings of Fact and Conclusions of Law
- Opinion, findings of fact and conclusions of law
Post-Trial Motions Following Permanent Injunction Ruling
Video Profiles of Plaintiffs & Witness Testimony
Case and Trial Timeline
March 14, 2012 – Voter ID law signed by Gov. Tom Corbett
May 1, 2012 – Lawsuit challenging the voter ID law filed
July 25 – August 2, 2012 – Trial on preliminary injunction
August 15, 2012 – Judge Robert Simpson declines to issue a preliminary injunction
September 13, 2012 – Pennsylvania Supreme Court hears oral argument on appeal
September 18, 2012 – Pennsylvania Supreme Court issues an order returning the case to the lower court for reconsideration
September 25-27, 2012 – Second trial on preliminary injunction
October 2, 2012 – Judge Robert Simpson issues a partial preliminary injunction that allows people to vote without an ID without using a provisional ballot in the November 2013 election
February 19, 2013 – Preliminary injunction extended to cover the May 21, 2013 primary
July 15, 2013 – Trial on permanent injunction begins with new judge: Bernard L. McGinley
August 16, 2013 – Judge McGinley extends temporary injunction until Commonwealth Court issues final decision on permanent innjunction
January 17, 2014 – Judge McGinley issues an order permanently enjoining the law as unconstitutional
January 27, 2014 – State files post-trial motion for reconsideration, moving case closer to the Pa. Supreme Court
April 28, 2014 - Commonwealth Court denied the state’s post-trial motion for reconsideration
May 8, 2014 – Governor Corbett announce that the state will not appeal the Commonwealth Court ruling that prohibits enforcement of Pennsylvania’s voter ID law
Governor Declines to Appeal Loss in PA Voter ID Lawsuit
Governor Tom Corbett announced on May 8, 2014 that the state will not appeal a Commonwealth Court judge’s ruling that prohibits enforcement of Pennsylvania’s voter ID law.
Governor Corbett issued the following statement regarding his decision:
“The Commonwealth will not pursue an appeal to the Pennsylvania Supreme Court to overturn the Commonwealth Court’s decision to enjoin Act 18’s photo identification mandate. Based upon the court’s opinion, it is clear that the requirement of photo identification is constitutionally permissible. However, the court also made clear that in order for a voter identification law to be found constitutional, changes must be made to address accessibility to photo identifications.
“A photo identification requirement is a sensible and reasonable measure for the Commonwealth to reassure the public that everyone who votes is registered and eligible to cast a ballot.
“The Administration will work with the General Assembly to address these issues. However, through the current legislative term, we must remain focused on passing a balanced budget and addressing ongoing legislative priorities.”
Jennifer Clarke, the Law Center’s executive director, issued this statement following the announcement: “The state’s decision not to appeal makes it very clear that with the exception of first-time voters, poll workers simply may not ask people for identification. Period. There is no waiting around for a new decision, no new roll out, and no question that people can now cast their votes. This law is dead.”
On May 1, 2012, the Public Interest Law Center of Philadelphia, Advancement Project, the ACLU of Pennsylvania, and the Washington, DC law firm of Arnold & Porter LLP filed a lawsuit in the Commonwealth Court of Pennsylvania to overturn the voter ID law passed by the General Assembly in March 2012.
Commonwealth Court Judge Bernard L. McGinley issued an order on January 17, 2014, permanently blocking the controversial photo identification law. In his opinion, Judge McGinley stated that the voter ID law “does not pass constitutional muster because there is no legal, non-burdensome provision of a compliant photo ID to all qualified electors.” He reaffirmed his opinion on April 28 when he denied the commonwealth’s motion to reconsider his earlier ruling.
Judge Denies State’s Post-trial Motion
Commonwealth Court denied the state’s post-trial motion for reconsideration in Applewhite v. Commonwealth, and as such the injunction against the Pennsylvania Voter ID law will stand.
Law Center executive director Jennifer Clarke said, “The court confirmed that the Voter ID law is unnecessary and disenfranchises hundreds of thousands of people. We call on the Governor, the Attorney General and the Secretary of State to stop spending our precious state dollars on defending this law, which is so dangerous to our democratic system.”
The state took this procedural step in January in order to eventually appeal the case to the Supreme Court. The state attacked nearly every aspect of the injunction.
Denial of the post-trial motion means the case can now begin to move forward through the appeals process. You can read Judge McGinley’s full decision here.
Voter ID Case Inches Toward Pennsylvania Supreme Court
In January, the state filed a post-trial motion for reconsideration and asked for an en banc panel of the Commonwealth Court to review Judge McGinley’s final order. The state had to take this procedural step in order to eventually appeal the case to the Supreme Court.
The state’s post-trial strategy is a kitchen sink approach, attacking everything from Judge McGinley’s constitutional analysis of the law to his so-called failure to consider Judge Simpson’s 2012 ruling. In remanding the case to the Commonwealth Court back in 2012, the Pennsylvania Supreme Court actually vacated and nullified Judge Simpson’s original decision, making this argument weak to say the least.
Time will tell if the court decides to take up any of the state’s post-trial requests, though we find it unlikely that Judge McGinley will reverse his 103-page decision. You can read our full response to the state’s post-trial requests here.
Judge Rules Voter ID Law Unconstitutional: Voters do not need to show photo identification at the polls.
On January 17, 2014 the Commonwealth Court ruled Pennsylvania’s voter identification law unconstitutional. Judge Bernard McGinley’s order recognized that the law would have disenfranchised hundreds of thousands: “The overwhelming evidence reflects that there are hundreds of thousands of qualified voters who lack compliant ID.”
While it is not yet clear if the Commonwealth will decide to appeal this decision to the Pennsylvania Supreme Court, we urge the state to consider all of the resources it has already spent on this case and instead re-direct potential appeal resources toward more pressing needs such as voter registration or high-quality public education.
Pennsylvania’s voter identification law has been widely recognized as one of the strictest in the country. When the law was originally passed by the state legislature, many touted it as a means for eliminating voter fraud. Throughout the course of trial, the state admitted that no such fraud exists. We are hopeful that other state’s will hear the message from this ruling: voter suppression tactics will not be tolerated by the court. Every voter is fundamentally entitled to cast a ballot.
The law would have placed an unnecessary burden on many voters, especially voters with physical disabilities or those who work multiple jobs and would not have been able to get to a very limited number of PennDOT locations: “Requiring electors who lack complaint Photo ID (and thus have no driver’s license) go to a [Drivers License Center] that may not be in their county, and may be several miles away and unreachable by public transportation, is untenable. Compound that barrier by physical limitations, preventing certain electors from traveling or waiting in line, the DLC Location Requirement becomes insurmountable.”
In spite of the state’s efforts to attempt to improve implementation of the law over the last eighteen months while trials chugged along, Judge McGinley recognized that the Commonwealth’s efforts were “too little too late.” The ruling went on to bash the state’s practice of misinforming voters during each election noting the state’s “educational and marketing campaign is largely ineffective and constantly confusing.”
The court’s ruling today is a huge victory for our state’s democracy: “The right to vote, fundamental in Pennsylvania, is irreplaceable, necessitating its protection before any deprivation occurs.”
Click here to view the full order.
Click here to read the press release on this decision.
Pennsylvania’s Voter ID Law will not be Enforced while Trial Judge Deliberates
Pennsylvania voters will not have to show photo identification at the polls until the Commonwealth Court makes a final decision in the lawsuit challenging the controversial law.
Commonwealth Court Judge Bernard L. McGinley issued an order on August 16th extending the preliminary injunction of the voter ID law until the trial court makes a decision on a permanent injunction. That decision, which is separate from today’s ruling, is not expected until later this year.
“We are very pleased that hundreds of thousands of eligible voters will be able to cast ballots in upcoming elections regardless of whether or not they have required identification,” said Jennifer Clarke of the Public Interest Law Center of Philadelphia, a member of the plaintiff’s legal team, which also includes the ACLU of Pennsylvania, the Advancement Project and Arnold & Porter LLP.
Judge McGinley’s order also changed the “soft rollout” process for implementation of the law, removing the requirement that poll workers tell voters they must be prepared to show proper identification at future elections. Poll workers can still ask voters to produce identification, though voters are not required to do so; this requirement had been included in the preliminary injunctions issued by Judge Simpson in 2012 and 2013.
“Evidence presented during the three week hearing demonstrated that the “soft rollout” confused voters and poll workers alike. It even resulted in people being turned away on Election Day,” said Michael A. Rubin of Arnold & Porter LLP. “This decision clarifies for voters that they can cast ballots without identification at upcoming elections and means that the law will not be used to further confuse and suppress voters.”
The order comes after more than two weeks of trial this past July. “Today’s ruling will help voters like Marian Baker, who testified during the trial that she decided not to vote in the May 2013 primaries because she was told during the November 2012 elections that she would need identification. That turned out to be wrong, and Marian’s voice was unnecessarily lost,” said Reggie Shuford, Executive Director of the ACLU of Pennsylvania.
Post-trial briefs on the issue of a permanent injunction of the voter ID law are due August 30, 2013. Judge McGinley is expected to rule on that request later this year, though there is no specific deadline in place.
“We are pleased with the court’s decision, but this is not the end of the fight,” said Advancement Project Co-Director Penda D. Hair. “Given the numerous, deep-seated problems with the law that were exposed during the trial, we know it stands to disenfranchise hundreds of thousands of Pennsylvania voters who lack photo ID. We will continue working to ensure that this law is permanently enjoined, and that all voters have a voice in our democracy.”
Petitioners Request Preliminary Injunction Extend through Appeal
On Monday, August 5th, 2013, the petitioners filed a post-trial brief with the court requesting extension of the preliminary injunction of Pennsylvania’s strict voter ID law. In this brief, the petitioners request that the preliminary injunction be extended by the court until a final decision has been made, as opposed to requesting an extension for each subsequent election as it arises. During closing arguments last week attorneys for the state indicated they would agree to extend the preliminary injunction through the November 2013 elections.
The petitioners have also requested that the state no longer be allowed to use “soft rollouts” in which voters are, “asked but not required,” to present valid photo identification during an election. This practice has already disenfranchised some voters. Some poll workers have mistakenly told voters that identification is, or will be, required and the state’s communications campaign has run confusing ads that have done little to offer clarity to voters.
During the summer 2013 trial in Commonwealth Court, Judge McGinley heard from a witness named Marian Baker who was disenfranchised by the soft rollout. During the November 2012 election she was told by a poll worker that identification would be required when she went to vote in the May 2013 primaries. Ms. Baker attempted to obtain valid identification from PennDOT before the May primaries but met multiple obstacles. Without proper identification in hand, she decided not to vote in the primaries the next spring even though the injunction had actually been extended.
Click here to read the full post-trial brief. Judge McGinley is set to make a ruling on the preliminary injunction issue by August 19, 2013.
Click here to read the state’s Brief in Opposition to Petitioners’ Application for a Preliminary Injunction.
Day 12, August 1st: Trial Comes to a Close
After two and a half weeks the trial over Pennsylvania’s voter ID law came to an end today as the court heard closing arguments from Jennifer Clarke, the Law Center’s executive director, and Alicia Hickok of Drinker, Biddle & Reath LLP. During closing arguments, Judge McGinley thanked both sides for their hard work throughout the trial.
In an unexpected move today, attorneys for the state said they would be willing to extend the preliminary injunction of the voter ID law through the November election. Both sides are continuing to carry out that conversation before a decision is finalized by the court as the petitioners work to ensure that voters do not have to deal with being asked, but not required, to show identification at the next election. When the preliminary injunction was previously extended, the court allowed the state to continue that practice, which caused significant confusion for voters.
Ms. Clarke opened the petitioners’ closing argument against the voter ID law saying the law, “unreasonably and unnecessarily burdens the right of Pennsylvanians to vote.” She reminded the court and those gathered in the courtroom that this case is about hundreds of thousands of real people, including Marian Baker, Patricia Norton and others who have been called to testify since the trial began on July 15th. And she argued that the law is both inherently unconstitutional as well as unconstitutional in the way it has been, and could be, implemented.
Article 1, Section 5 of the Constitution of the Commonwealth of Pennsylvania states: “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Ms. Clarke argued that neither the government’s nor the Pennsylvania General Assembly’s interests have the right to outweigh or over burden the individual right each voter is entitled under the state constitution.
Ms. Clarke argued that Act 18 is unconstitutional on its face because of a number of “fundamental and foundational” issues.
- The law states that PennDOT-issued identification is a last-resort form of identification for voting. At the same time the law requires all people to go to a PennDOT location to obtain compliant identification.
- The law does not guarantee that the state must provide a free form of identification. Throughout the trial, the state has claimed that the free Department of State (DOS) ID alleviates many of the burdens placed on voters by getting rid of a fee and by allowing voters to apply for ID without producing a birth certificate or other substantiating documentation. Ms. Clarke noted that the DOS ID is fully discretionary and there is no guarantee in the statute that this identification will always be available or that it will go unchallenged by elected officials.
- Act 18 contains the strictest, narrowest list of acceptable IDs of any voter ID law in the country, requiring expiration dates, which are not always available on student or veteran identification cards, and excluding identification provided by school districts, some municipalities or private employers.
- The law provides no safety net. If a voter does not have ID she cannot cast a ballot and sign an affirmation of who she is, nor can she just submit an absentee ballot as Pennsylvania has extremely strict rules for voting absentee.
Ms. Clarke’s argument also focused on how the law is unconstitutional “as applied,” meaning as it has been implemented. The state’s educational campaign continues to fail to send clear instructions or appropriate messaging, there’s no ride-sharing program to help people get to PennDOT as the state once claimed, and hundreds of people who have tried to apply for the DOS ID have failed to actually receive that identification.
Throughout this case, the state and a number of expert witnesses have conducted analyses of the number of voters who do not currently have appropriate identification to vote under Act 18. Although the numbers have waxed and waned based on different methodologies and opinions, Ms. Clarke argued that the record and evidence have continued to show that no matter which expert or analysis you subscribe to, the variation does not deny one fact: every analysis shows that hundreds of thousands of voters stand to lose their ability to vote if the law moves forward.
And the state’s attempts to make identification more available have proved to be minimally effective at best with just over 16,000 individuals, out of hundreds of thousands, obtaining identification since last summer.
Alicia Hickok’s closing arguments opened with the claim that the General Assembly takes its responsibilities very seriously and implemented Act 18 in an effort to uphold the integrity of Pennsylvania’s election system. She noted that the state has worked to identify vulnerable populations who would have a hard time getting identification, such as senior citizens, and has tried to ensure these groups have access to identification. She argued that the analyses of the SURE database of voter registration information have been done incorrectly and do not prove that there is a large gap of voters who cannot get identification. She also refuted Ms. Clarke’s claim that the DOS ID is truly discretionary, saying the state would only get rid of the DOS ID if another form of identification was created.
A portion of Ms. Hickok’s argument focused on how the Supreme Court decision in Crawford v. Marion County Board of Elections should be applied in this case. She argued that the petitioners in this case, as in Crawford, were unable to establish enough accurate evidence in the record to bring a constitutional challenge against the voter ID law.
During her rebuttal, Ms. Clarke noted that Crawford v. Marion County Board of Elections has very little to do with Pennsylvania’s voter ID trial. The challenge presented in Crawford was brought against the United States Constitution, which does not have an express provision for voting. This case brings a challenge under Pennsylvania’s state constitution, which does in fact provide express protections for voters. Furthermore, Ms. Clarke argued, the petitioners have established significant evidence in this case, from calling witnesses who have been unable to get identification to gathering statistical and expert analyses.
Ms. Clarke urged the court to weigh the burden the voter ID law places on voters against the justification for implementing the law, arguing that there is no justification for this law. There is no evidence of voter fraud, and there is no need to create a tool to “deter and detect voter fraud” when such fraud is non-existent. The state has conceded that it does not have evidence of voter fraud.
Both sides will now submit post-trial briefs to the court. Judge McGinley is set to make a decision on the preliminary injunction no later than August 19th. It is not yet known when he will make a decision on either the state’s request to dismiss the case or on the case in its entirety.
Day 11, July 31st: Both Sides Rest, Closing Arguments Postponed
As the trial headed into its eleventh day today, the courtroom remained closed to the public as the state cross-examined the petitioners’ rebuttal witness, Bryan Niederberger from BLDS, LLC. Mr. Niederberger was first called yesterday as a witness for the petitioners to testify about his analysis of the data on voters who applied for the free Department of State ID (DOS ID), but for a variety of reasons, did not receive the identification.
Judge McGinley first closed the court yesterday afternoon at the request of the state over concerns that Mr. Niederberger’s testimony would include confidential information on voters.
During his testimony Mr. Niederberger led the courtroom through Petitioners’ Exhibit 2136. Click here to take a look at the public, redacted version of this exhibit. This exhibit shows the analysis of voters who did not receive DOS ID and are listed as “exceptions” on a Department of State spreadsheet.
The state has argued throughout this case that it has greatly lessened the burden on voters by creating the DOS ID, which is theoretically free and can be obtained without showing substantiating documentation like a birth certificate. (Individuals still have to travel to a PennDOT location to get this form of ID, which can be extremely difficult for many individuals, including those who live in rural areas where there is no nearby PennDOT location, the elderly, the disabled, those without a car or access to public transit, and many others.)
In spite of this claim, the analysis laid out in Exhibit 2136 shows that the state’s “streamlined” process does little to ensure that all voters are able to obtain identification. Even the most conservative estimates show that a significant number of voters did not receive the DOS ID when they went to PennDOT to apply for it. Some voters still have yet to receive the DOS ID. Others were mailed the DOS ID but did not receive it in time to use during the November 2012 presidential election. Even voters who were already registered before they went to PennDOT to get a DOS ID were turned away because their information could not be verified in the state’s SURE database, which is supposed to house comprehensive data on all registered voters. Had the preliminary injunction not been in effect, many of these voters might have been disenfranchised in spite of their attempts to get to a PennDOT location and obtain identification.
Following the cross-examination, the court temporarily recessed as the petitioners and respondents conferred about resting the case. When the court convened shortly thereafter, Tim Keating spoke on behalf of the state and noted that they were ready to rest their case. Michael Rubin of Arnold & Porter LLP concurred that the petitioners would also rest their case.
The state then filed a motion to dismiss the case, in part claiming the plaintiffs in the case, such as the Homeless Advocacy Project and NAACP, no longer have standing to bring this suit. Jennifer Clarke, the Law Center’s executive director, called this move, “perfunctory” and expected.
Judge McGinley recessed court for the day and called for closing arguments tomorrow, Thursday, August 1st at 10:00 a.m. Petitioners will have 45 minutes for closing arguments and 15 minutes for rebuttal. Respondents will have 60 minutes to make their closing argument.
Day Ten, July 30th: Even as Trial Begins to Wrap Up, “Exceptions” Controversy Remains
Today the voter ID trial headed into its third week as the respondents picked up where they left off last Thursday. The state continued to examine Jonathan Marks, Commissioner for the Bureau of Commissions, Elections, and Legislation. In his position, Mr. Marks oversees elections, voter registration, and the SURE system, among other tasks. This is the second time Mr. Marks has testified during this trial. He also testified during the trial for a preliminary injunction last summer.
Here’s a brief overview of how Mr. Marks’ testimony began last Thursday: Mr. Marks discussed the SURE database, which has been used and referenced throughout the trial to determine the number of registered voters who may not have PennDOT identification. Mr. Marks was also briefly asked to talk about the differences between absentee and alternative ballots, the instructions his office has provided to county election offices, and the Help America Vote Act (HAVA) verification process. To read the beginning of his testimony from Thursday, click here.
Alicia Hickok continued the examination for the respondents. She questioned Mr. Marks about a number of identifiers in the SURE database and other eligibility requirements, including those for permanent absentee voters and felons. Ms. Hickok also continued to question Mr. Marks about the instructions given to poll workers and county officials. Mr. Marks noted that poll workers, county officials and PennDOT employees received additional materials and instructions because of the new law.
Ms. Hickcok moved on to ask Mr. Marks about the “exceptions” to the Department of State ID (DOS ID), which have been an ongoing controversy in this trial. “Exceptions” refers to individuals who went to PennDOT to obtain a DOS ID but left without identification because their information had to be crosschecked or verified. Mr. Marks noted that the number of folks who are considered “exceptions” has decreased. Throughout the day, the petitioner’s still worked to shed light on the 615 exceptions listed on a DOS spreadsheet including the 144 voters who did not receive identification when they originally applied for the DOS ID.
Vic Walczak of the ACLU cross-examined Mr. Marks. Mr. Walczak began the cross by asking Mr. Marks about counties that do not have PennDOT locations and the limited operating schedules of some Driver’s License and Photo ID Centers. The court again heard through this testimony that while there are 9,300 polling places across the state, there are only 71 Driver’s License Centers.
Mr. Walczak pointed out that in the county where Mr. Marks currently lives, there are 32 polling places but no PennDOT Driver’s License Center. Using MapQuest directions and searches done on the PennDOT website, Mr. Walczak estimated how long it might take Mr. Marks to get to the nearest PennDOT location from both his current home and from his previous residence. One option took more than 30 minutes while another nearby PennDOT location was estimated to be more than 50 minutes away by car. Both nearby PennDOT locations had very limited hours, with one only being open one day a week. It was made clear through this testimony that Mr. Marks himself could face a heavy burden in getting to a PennDOT location. When asked about his polling place Mr. Marks noted that it is one city block away from his home.
Mr. Marks was also asked about identification provided by colleges and universities and care facilities. Throughout this trial, the state has continually noted that institutions of higher learning and care facilities (including personal care facilities, assisted living facilities and long-term care facilities) provide identification to their residents that may be used for voting purposes. Mr. Marks testified that a number of well-attended, well-known universities do not supply appropriate identification and there is no definitive list that tracks which, if any, personal care facilities are supplying appropriate identification.
Mr. Walczak then asked Mr. Marks about the increased strain presidential elections place on getting voters registered. Mr. Marks testified that there tends to be greater interest, and therefore more voter registration applications submitted, before a presidential election. Through this questioning, it was made clear that in the time leading up to a presidential election, many counties are burdened by this increased number of applications, and they may not be able to ensure that the data drawn from these applications is made available to PennDOT quickly enough to allow voters to request a DOS ID without becoming an “exception” in time for an election.
Megan Sweeney, Special Assistant to the Secretary of the Commonwealth, was called to the stand in the afternoon. She was placed in charge of overseeing a project plan for voter ID that included conducting educational outreach about Act 18. The state’s examination reviewed the types of events and materials Ms. Sweeney used in her outreach plan. During the cross examination it became clear that in spite of the work Ms. Sweeney testified about in the examination, there were a number of holes and factual issues in the state’s outreach. Ms. Sweeney noted that some of the materials she used were not not changed after the free DOS ID became available, nor did she revoke materials that were sent out that contained pre-injunction language. Her testimony during the cross examination showed that even as of April of 2013 she was getting questions from people about whether or not they were able to use their driver’s license to vote – showing that the state’s education campaign still has not proved effective.
At the end of the day, the respondents noted that they had no additional witnesses to call. The petitioners chose to call one final witness, Bryan Niederberger from BLDS, LLC, to statistically analyze the 615 exceptions noted last week and in Mr. Marks’ testimony. The state requested that Mr. Niederberger’s testimony be conducted in confidence. Though the petitioners objected, noting that no confidential voter information would be discussed, Judge McGinley granted this request.
Tomorrow the state will have a chance to cross-examine Mr. Niederberger. This cross examination may again be conducted in a closed courtroom. Both sides are then expected to make closing statements.
Day Nine, July 25th: The State’s Statistician
The ninth day of trial began with Alicia Hickok’s examination of the commonwealth’s expert witness, statistician Dr. William Wecker of William E. Wecker Associates, Inc. In his testimony, Dr. Wecker described a report he submitted challenging Dr. Bernard Siskin’s study of Pennsylvania voters lacking acceptable ID. That study, which matched a database of registered voters (SURE) with the PennDOT and Department of State databases to generate a list of over 500,000 registered voters without a PennDOT or Department of State ID, concluded that there are hundreds of thousands of Pennsylvania voters who do not have the identification required to vote in the next election under Act 18. Dr. Wecker outlined several of the issues he raised in his report. First, he claimed that the process of matching the databases was inherently flawed, because the databases “weren’t designed to be matched in the first place.” In some cases, a match might be missed because of missing or redacted information in one of the databases. Names that do not fit the databases’ inflexible first-middle-last format, such as names of Asian origin or names with two surnames, might be input differently from database to database, and would thus not be matched by Dr. Siskin’s matching algorithm. Incorrect birthdates on driver’s license paperwork, which Dr. Wecker characterized as occurring commonly, would defeat the algorithm as well in his view.
Dr. Wecker claimed to have found that of the non-matches Dr. Siskin identified, thousands are accidental duplicates or even triplicates, and even more represent voters who have since died or moved out of state. Furthermore, even the true non-matches do not necessarily represent voters in need of an ID, because so many could be either eligible to vote absentee, or in possession of other valid ID, such as school, care facility, military ID, or passports.
In his report, Dr. Wecker attempted to determine exactly how many of Dr. Siskin’s non-matches were likely to have any of these alternate forms of ID. By drawing circles of varying sizes around hotspots such as universities, nursing homes, and military bases, and cross-referencing the residents in these areas with Dr. Siskin’s list (a method he acknowledged as extremely rudimentary and inexact) Dr. Wecker developed an estimate in the tens of thousands.
Dr. Wecker concluded that non-match and other issues are merely the tip of the iceberg, and Dr. Siskin’s study has numerous limitations that render it essentially baseless. By extension, he noted that the estimate of the demographics of voters without identification is baseless as well. While Dr. Wecker acknowledged Dr. Siskin’s efforts to whittle down his initial list of 511,000 by manually verifying the accuracy of a sample, he doubted these efforts were anywhere near sufficient to account for the study’s enormous margin of error.
Michael Rubin of Arnold & Porter LLP began the cross-examination by informing Dr. Wecker that the Department of State itself has estimated one percent of Pennsylvania voters lack acceptable ID, and that various other sources have placed this percentage even higher. In fact, Mr. Rubin called Dr. Siskin’s estimation of “hundreds of thousands” conservative, as it does not account for the various factors that artificially deflate the figure, including the many voters in the PennDOT database who have expired IDs. He then went on to address individually the arguments made by Dr. Wecker in his report and testimony.
Mr. Rubin first refuted the report’s claim that 17,000 of the non-matches on Dr. Siskin’s list are deceased. The SURE database differentiates deceased voters from inactive voters, which allowed Dr. Siskin to eliminate them from his count. In response to the argument that Dr. Siskin did not account for the voters who recently moved out of state, Mr. Rubin pointed out that Dr. Siskin also did not account for the voters who recently moved into the state and are still not in the database, all of whom are just as likely if not more likely to lack ID than the ones who moved out. The issue of duplicates similarly cancels itself out, as duplicate entries can incorrectly deflate the estimate of ID-less voters just as easily as inflate it. ID-less voters with the same name and birthdate as a voter who has an ID would have been erroneously excluded from Dr. Siskin’s list of non-matches.
Mr. Rubin took most issue with Dr. Wecker’s method of identifying voters with identification that is not from PennDOT or the Department of State. Many of the institutions Dr. Wecker used as starting points in fact do not issue acceptable ID, including Penn State University and 79 other Pennsylvania institutions of higher learning. In addition, the circles Dr. Wecker drew around the institutions were often simply too large, capturing thousands of ID-less voters not affiliated with the institution. Mr. Rubin demonstrated that Dr. Wecker had applied this mistake to every category of institution, but his analysis of colleges and universities stood out. Because Philadelphia and Pittsburgh are home to so many colleges and universities, Dr. Wecker essentially ended up drawing a giant circle around both cities and claiming that every ID-less 18-28 year-old voter inside (a total of more than 48,000) has access to a school ID, and should thus not be included on Siskin’s list. Mr. Rubin noted that much of these two areas, such as the surroundings of Temple and Duquesne University, have high rates of poverty, making this assertion all the more ridiculous.
Next, Mr. Rubin tackled the report’s claim that more than 2,500 of Dr. Siskin’s non-matches are incarcerated, and thus currently ineligible to vote. Mr. Rubin revealed that Dr. Wecker had included in his figure of 2,500 all of the non-matches living in (or in the few blocks surrounding) not only prisons but also several halfway houses.
When Ms. Hickok returned for rebuttal, Dr. Wecker reiterated the roughness of his analysis, and that it was only meant as a starting point. Ms. Hickok also pointed out that many institutions not currently issuing acceptable ID may soon begin to do so.
The day came to a close as Ms. Hickok began to examine the commonwealth’s next witness, Jonathan Marks, Commissioner for the Bureau of Commissions, Elections, and Legislation.
Day Eight, July 24th: Commonwealth Calls First Two Witnesses
The eighth day of the voter ID trial began today with the commonwealth calling its first two witnesses.
The state’s first witness was Kelly O’Donnell, an employee with the Department of Aging. Part of the Department of Aging’s responsibility is to coordinate services that promote independence among people 60 years old and above by providing help with things like protection services and prescription drug assistance. Ms. O’Donnell testified that there are an estimated 2.7 million Pennsylvanian citizens 60 years old and above. While a large number of those 2.7 million live independent lives without reliance on senior care facilities, a sizeable portion depends on “adult daycare,” or long-term nursing facilities, for assistance.
In her testimony, Ms. O’Donnell talked about how the Department of Aging regularly works with AAA, senior facilities and the Department of State to disseminate information and resources and coordinate transportation for senior citizens. Through partnerships with AAA and the Department of State, Ms. O’Donnell claimed that information on the new voter ID law was disseminated to seniors. She specifically noted that an email containing information on the new law, and subsequent instructions on acquiring ID, was sent out to 750,000 seniors. The state’s examination of Ms. O’Donnell was focused on introducing evidence that information on the voter ID law was made readily available to senior citizens.
In the cross-examination, our legal team drew out information about how the instructions in the mass emails sent to seniors were flawed. In the newsletter referenced by Ms. O’Donnell, the Department of State instructed citizens that they could acquire ID either at a Driver’s License Center or at a Photo ID Center. In reality, one can only acquire ID at Driver’s License Center.
After proving that incorrect information was widespread, the petitioners pointed out further flaws in the state’s claims. Through the cross-examination it came out that senior care facilities do not provide identification, and as such, transportation is needed for citizens to get to a PennDOT location. The catch-22 of this situation is that senior citizens need identification to register for a seat on transportation, so many seniors may not have been able to get to PennDOT even when transportation was provided. This problem was identified by the Department of State, but no “creative service” to transport seniors to PennDOT has been documented.
Kicking off the afternoon, the state called a second witness: Mr. Meyers, a deputy secretary at PennDOT who is in charge of issuing IDs. He testified that 9.8 million IDs have been issued to citizens in the commonwealth. 8.8 million are driver’s licenses and one million are other forms of secure state ID. Mr. Meyers noted that licenses have become more than just an indication of one’s proficiency behind the wheel; they are a universal form of identification required everywhere from the airport to the doctor’s office. He noted that the notion of promoting the sanctity of a secure form of ID explains why the process of acquiring proper identification is so stringent.
Mr. Keating, deputy attorney general for the state, asked Mr. Meyers why there were no PennDOT centers in nine Pennsylvania counties. Mr. Meyers responded that PennDOT centers are based on population dispersion and not on county lines. Mr. Meyers did not offer much information on how people who live in counties without a registered PennDOT office, and sometimes without public transportation, are able to efficiently acquire ID.
During his examination of Mr. Meyers, Mr. Keating raised the issue of the 144 people who applied for identification but did not receive ID until after the November 2012 election. He refuted this evidence but did not provide any counter evidence.
Jennifer Clarke, the Law Center’s executive director, began her cross-examination of Mr. Meyers with a question regarding these 144 individuals. The state immediately requested confidentiality in proceeding further with the questioning of Mr. Meyers. The court granted this request and the rest of the cross-examination regarding those 144 voters was held behind closed doors. When the court marshal allowed the general audience back into the courtroom, Ms. Clarke noted that nine counties still don’t have a PennDOT office, while thirteen counties have PennDOT offices open one day-a-week, and ten have offices open only twice a week. Ms. Clarke stressed that with such limited access, it is indeed a burden for citizens to acquire a photo ID to vote.
Ms. Clarke drew out two more points to close her cross-examination of Mr. Meyers. First, she emphasized that certain PennDOT offices in Philadelphia (particularly the Arch street and Columbus Boulevard locations) had extremely long average wait times. Statistics show that during the summer of 2012, well under 50% of persons were served in less than 30 minutes at their respective PennDOT locations. Second, Ms. Clarke noted that PennDOT employees are not instructed to ask people if they would like to obtain identification appropriate for voting under the new law and this lack of information can cause significant confusion. Some citizens who go to PennDOT to get identification for voting wind up spending $13.50 on a multipurpose ID, when in reality they only wanted the Department of State voting ID, which is free.
The day wrapped up with Judge McGinley rejecting a motion for discovery by the petitioners and subsequent motion to strike Mr. Meyers’ testimony. Judge McGinley did grant the petitioners request to keep cross-examination open.
Day Seven, July 23rd: Testimony from Burdened Voters Continues
The court heard from three witnesses by video deposition today regarding the difficulties they’ve experienced attempting to obtain identification. Patricia Norton’s video testimony was played first. Under examination by Law Center attorney Ben Geffen, Mrs. Norton explained that she is a great-grandmother and a lifelong resident of Berks County. She has lived in the same house in Womelsdorf for 48 years, and has voted for that entire period at the Borough Hall at the end of her block. She can get to Borough Hall to vote in person and is thus ineligible to cast an absentee ballot.
Mrs. Norton has had serious health problems since the late 1990s and very rarely travels beyond her immediate neighborhood. She has not renewed her driver’s license since the late 1990s, because she no longer can drive and has been able to use her expired driver’s license as an ID for everyday purposes. After the Voter ID law was enacted, however, Mrs. Norton began trying to get a new photo ID. The nearest PennDOT Driver License Center is a 45-minute drive away. Mrs. Norton has no family members in the area who were available to drive her there, so she requested a ride from friends in Reading, some 30 minutes away. Shortly before the November 2012 election, her friends drove to Womelsdorf, helped her into their car, drove her to PennDOT, and helped her out of the car and into the building.
Although PennDOT is supposed to provide non-driver photo IDs free of charge to people who need them for voting purposes, PennDOT personnel told Mrs. Norton that she would have to pay $13.50 for an ID. Mrs. Norton offered $13.50 in cash, but was told that she would have to pay by check or money order. To buy a money order, Mrs. Norton would have to get back in her friends’ car, ride to another location, and repeat the trip back to PennDOT. She lacked the physical stamina for such a trip and reluctantly went home empty-handed. Since then, she has been unable to return to PennDOT, as her health has worsened and as it is difficult for her to impose repeatedly on her friends for long rides.
If the Voter ID law takes full effect, Mrs. Norton will be disenfranchised. She will still be able to travel to the polling place down the street that she has frequented for 48 years, but she will be forbidden to cast a ballot, because PennDOT has made it too difficult for her to obtain a photo ID. Click here to watch Mrs. Norton’s video testimony.
Susan Carty, president of the Pennsylvania League of Women Voters testified next under direct examination by Marian Schneider, an attorney for the Advancement Project, and cross examination by Kevin Schmidt for the respondents. The League of Women Voters is one of the plaintiffs in this case. Ms. Carty talked about the extraordinary volume of calls the League received—primarily in local chapters, but also to their state-wide hotline—on election day regarding the identification requirements. She also testified to the fact that the League has expended a great deal of additional effort and time educating voters about the new ID requirements, and that information about the new law, even at her local library, was difficult to find and less than comprehensive.
The petitioners also called Nadine Marsh to testify by video deposition. Last summer, Ms. Marsh had no photo identification at all, having never had a license and in fact, never driven. During July and into the fall, her family spent a great deal of time helping her obtain an ID. Her granddaughter emailed the state three times, receiving a response only after the third communication. She then checked the PennDOT website for the times when the nearest office, an hour away, was open.
Ms. Marsh was driven by her daughter to PennDOT on a Monday. There, they were told the office that handled IDs was closed on Mondays, a fact neither she nor her granddaughter was able to find on the website. Ms. Marsh lives 20 minutes away from the nearest public transportation, and so to return to PennDOT she needed a ride.
The next day, Ms. Marsh tried again to obtain an ID. Her trip involved her daughter taking off from work, nearly two hours of driving, and an hour and a half wait just to speak to someone at the office. Finally, she spoke to a number of employees who all claimed to have no idea what she was talking about when she asked for a “voter’s ID.” Ms. Marsh filled out some paperwork detailing her request and was sent home. Again she left without an ID, or even an explanation.
On September 24th, Ms. Marsh finally received a letter from Penn DOT, which instructed her to return to their offices and get an ID. By October 2, she was able to get her identification—but only with the help and persistence of her family. Click here to watch Ms. Marsh’s video testimony.
The court also heard from a third witness by video today. During her testimony, Catherine Howell described how voting, and particularly voting in person, is important to her. She cast her first vote for Harry Truman, and has voted ever since.
Mrs. Howell was diagnosed with Parkinson’s disease four years ago, and she uses a wheelchair when she leaves her apartment and a scooter or walker at home. When using her wheelchair, she needs someone to push her, and in vehicles without a lift she needs help getting in and out of the car. Although she lives close to her five children, twelve grandchildren, and great-grandchild, it is not always easy for her to find a ride.
Mrs. Howell’s polling place is only two blocks from her apartment, and her son and daughter-in-law usually take her as it is their polling place as well. The polling place is wheelchair accessible, and she has no difficulty using the machine. There is no need for her to vote by absentee ballot as she is fully able to continue voting in person as she has in almost every election since 1948. Mrs. Howell has a driver’s license and passport, both of which are expired. She has no other ID with a picture on it. Mrs. Howell testified that she feels it is important to continue voting, but that she has no idea where to go to obtain a new photo ID. She gets all of her news from television and local newspapers, and said that she has not encountered any information about how to obtain identification to vote. Although Mrs. Howell’s family is able to bring her to her polling place and for occasional trips, she testified that everyone has jobs, and so it is difficult to arrange a trip during the week. Click here to watch Mrs. Howell’s video testimony.
Day Six, July 22nd: Officials’ Testimony Recognizes Need For Exceptions To Law
The second week of the trial began with an afternoon half-day focused on memos produced by the state and presented by the plaintiffs. These memos showed records of state officials’ reservations towards the voter ID law and the potential disenfranchisement it could bring to voters as well as the way in which these reservations were ultimately ignored.
The first witness of the day was David Procter. The 67-year-old retired Harrisburg resident has disabilities that have made mobility challenging and have prevented him from walking more than a mile in the past two years. However, for Mr. Procter, voting is easy: his polling place is only two blocks from his house. Although he has a bus pass with a photograph, a swim club membership, and a merchant marine ID card, he lacks a driver’s license or valid PennDOT ID. His license expired many years ago, but he never renewed it because he does not have a car and therefore does not drive. The nearest PennDOT is 1.5 miles from his house and not easily accessible by bus. Although he has a niece who lives in Pennsylvania, she has four children and a demanding work schedule and is not a feasible option for transportation. Without a car or anyone to drive him, Mr. Procter is unable to reach the drivers’ license center and therefore unable to get a valid ID for voting.
The next witness of the day was Rebecca Oyler, former policy director for the Department of State. Before the current voter ID law went into effect, she acknowledged that voter registration cards counted as a form of ID. This would allow anyone who was a registered voter to have some form of valid ID and therefore be able to continue voting. Ms. Oyler acknowledged that the “soft rollout” during the November 2012 election may not have been consistently implemented across different counties. During her testimony, she discussed the research she did about ID laws in other states and acquiesced that other states had exceptions to these laws for certain groups of voters (e.g. the elderly) that Pennsylvania lacks. She expressed concerns about different groups of people who could have difficulty with the new ID law including minorities, non-English speakers, and more, and explained that the general assembly and policy office discussed these concerns prior to the law’s passage and implementation. The defense later clarified that Ms. Oyler was not one of the main officials responsible for the implementation of the law, and that certain groups of people (e.g. military officials overseas) were covered by exceptions.
The day closed with a video of testimony from Pennsylvania Commonwealth Secretary Carol Aichele at a legislative hearing. Ms. Aichele discussed a Committee of Seventy study that determined the percentage of Pennsylvanians with valid identification to be 96.5%.
The overarching theme of lead counsel Michael Rubin’s questioning was aimed at demonstrating the underlying unconstitutionality of this law. Since this law deals with voting, a fundamental right, it must be narrowly tailored to meet a compelling government interest. The line of questioning, which focused on memos and various correspondences between Ms. Oyler and other officials, showed that the legislature knew that this law would disproportionately affect certain groups of citizens. Mr. Rubin opted to prove that through various amendments and proposed changes to the bill, the legislature had the opportunity to broaden the categories of identification deemed acceptable, but opted not to in the final version of the law.
Day Five, July 19th: First Week of Trial Concludes with Expert Witness Analyzing Commonwealth’s Education Campaign
Friday marked the end of the first week in the voter ID trial. Testimony and evidence presented in court over the last five days laid a strong, evidence-based foundation for our argument that the voter identification law is unconstitutional.
Throughout the week, we heard personal stories from long-time voters and thorough analysis by expert witnesses. We learned that hundreds of thousands of registered voters stand to be disenfranchised by the voter ID law. Witness testimony proved that the system for obtaining identification is marred by inaccessibility, complex hurdles and systemic inconsistencies. And today the court learned that the commonwealth’s public education and advertising campaign failed both in creating awareness about the new identification requirements and in making clear the methods voters could use to meet those requirements.
The voter ID law contains a directive that the state must educate eligible voters about the change in law and provide information on complying with the law. Today Diana Mutz, Ph.D., who is the Samuel A. Stouffer Professor of Communications and Political Science at the University of Pennsylvania, was called to the stand to testify about the effectiveness of the state’s education campaign. Professor Mutz specializes in analyzing political communications, or in her words, “the citizen’s relationship to the political process,” through the study of mass media and interpersonal communications.
Professor Mutz analyzed the public education and advertising campaign the state implemented under the directive, both after the voter ID law was signed and after the preliminary injunction was secured. Her testimony overwhelmingly showed that the campaign failed to meet the state’s goals to educate eligible voters.
After reviewing her credentials, Vic Walczak of the ACLU led the examination by asking Professor Mutz to walk through her analysis of the campaign’s messaging as it was implemented across a variety of platforms, including television and radio ads, internet banners, direct mailings, billboards, bus ads, magazine ads and automated calling.
Her report noted that the campaign’s primary slogan, “Show It,” was ambiguous, and never made clear what the “it” actually references. Furthermore her analysis showed that, “Show It,” presumes that an individual, “had an ‘it’ to show,” and therefore did not take into account voters who did not have identification, even though this group should have been one of the campaign’s target audiences. In addition to selecting a poor slogan, the pictures and video used in the campaign predominantly featured a Pennsylvania driver’s license, potentially indicating that other forms of identification would not have been accepted at the polls on election day.
Professor Mutz explained just how the ads themselves largely failed: the audio and visuals in the television campaign failed to reinforce one another to create a clear and cohesive message; a crucial piece of information about whether or not identification was actually required was left to a voice over instead of to a visual depiction in the television ads and sometimes was not even included in other mediums; and, information on the voter hotline and website many times showed up in ads in small print and with few directions, at best.
Professor Mutz noted multiple times throughout her testimony that the roll out of the “Show It” campaign never included methods for evaluating the effectiveness of the messaging, as is standard practice in information campaigns. The state never chose to conduct message pre-testing in a targeted media market or with focus groups, even though pre-testing is many times an extraordinarily affordable way to obtain feedback and incorporate it to make a campaign more successful.
The “Show It” ad campaign was used both before and after the preliminary injunction was secured, though Professor Mutz’s analysis showed the state did little to distinguish any changes in the advertisements following the preliminary injunction. Instead of distinguishing the two messaging campaigns, the state chose to make subtle differences that did little to clarify to the audience that identification was no longer required. In some places, the “second” campaign still included a statement about the documentation needed to obtain identification, even after the DOS ID was introduced.
In addition to evaluating the advertisements and mechanics of the campaign, Professor Mutz reviewed the “follow-through” of the campaign. She shared that many campaigns require audience members to take a second step once they have seen an ad, and research shows that an effective campaign provides an incentive for an audience member to take his or her own initiative to actually take that next step. Additionally, for an audience member to follow that step to completion, Professor Mutz noted that the next step must be clear and simple.
Professor Mutz walked the court through her experience taking the “Show It” campaign’s follow-through steps by visiting the votesPA.com website and calling the 877-VOTES-PA hotline – the two resources that were listed on advertisements. Sometimes these outlets were listed under the phrase, “Learn more” while other times they were simply listed with no instructions. Professor Mutz found the website to be extremely difficult to navigate and the phone line to be similarly convoluted. When she tried calling after business hours, she was not even able to leave a voice mail or connect with an operator. The follow-through steps took time to use and were never guaranteed to actually lead to clear instructions on how to obtain identification.
Mr. Walczak concluded his examination by asking Professor Mutz if she had any experience studying voter confidence in elections. She noted that her research has involved this focus area, citing a nationwide survey that found that only 0.1% of the 12,000 voters surveyed mentioned anything related to voter fraud. She noted that surveys have shown that voters are primarily concerned with the financing of elections, the level of trust they can place in candidates to follow through on their promises and low voter turn out.
Alicia Hickok cross-examined Professor Mutz before court recessed for the weekend. Trial picks up again on Monday, July 22nd at 1:00pm.
Day Four, July 18th: Exceptions, Delays and Misdirects
The fourth day of the Voter ID trial began with the continuation of the examination by ACLU Lawyer Witold “Vic” Walczak of Mr. Marks, an employee of the Bureau of Commissions, Elections, and Legislation. Although the examination started off slowly, with the necessary clarification of terms such as active voter, inactive voter, invalid voter and list maintenance, it quickly snowballed to reach several interesting conclusions. Mr. Marks testified that some of the Department of State IDs (DOS ID) printed at PennDOT locations were labeled as “exceptions,” and instead of being issued to voters on the day they applied at PennDOT, were instead sent to the Department of State to verify that those applicants were registered voters. When Mr. Walczak pulled up the exceptions spreadsheet provided by the DOS, Marks conceded that there were 507 exceptions after September, 2012 out of 2,530 total DOS IDs issued. A subset of the people classified as “exceptions” eventually received their ID in the mail. Unfortunately, as Mr. Walczak concluded, this still means that 22.5% of the people who applied for a DOS ID did not receive their ID when they went to PennDOT to apply, but were instead told that their application had to be reviewed. Furthermore, over half of the applicants who were labeled exceptions never received their IDs. One third of exceptions actually received a letter in the mail telling them to return to PennDOT and reapply for a DOS ID.
Mr. Walczak continued to lead Mr. Marks through a step-by-step statistical analysis; this time in regards to people who registered to vote, subsequently attempted to acquire a DOS ID to vote in the November 2012 presidential election, and did not receive one in time. Walczak beautifully extrapolated the frustrating situation one individual had to go through using only the information provided from the exceptions spreadsheet. Person #12 was a 94-year-old woman who had been registered to vote since 1944. She went to PennDOT in October 2012 to receive a DOS ID in order to vote in that year’s presidential election. There she was told that, although she stated that she had been registered since 1944, PennDOT had to confirm her statement with the DOS before issuing her an ID via mail. She did not receive her DOS ID until March 2013. Mr. Marks admitted during his testimony that there are 124 Pennsylvanians who experienced similar situations.
In the state’s examination of Mr. Marks, it was revealed that there were 144 individuals who were labeled as exceptions but actually received another form of identification. The state claimed that this invalidates Walczak’s analysis. Nevertheless, the state admitted that they did not know the names of these individuals until a couple of days ago and have not yet done any analysis of their own.
The second witness of the day, Andrew Rogoff, was examined by the Law Center’s Ben Geffen. Mr. Rogoff has been a practicing lawyer since 1977 and is a counsel at Pepper Hamilton LLP. Mr. Rogoff recalled his trials and frustration when attempting to obtain a DOS ID for his father-in-law, Herbert Ginensky. Mr. Ginensky had an amazing life – he served in Iwo Jima, he was a Cadillac body-worker, he owned a delicatessen in Brooklyn, and later got into real estate. He voted almost every year since 1940, including in local judicial elections. Towards the last years of his life, he asked Mr. Rogoff to take care of his paperwork and bills. Therefore, when Mr. Rogoff realized that Mr. Ginensky’s driver’s license was about to expire, he decided to help his father-in-law apply for a DOS ID. Mr. Rogoff filled out all of the appropriate paperwork and checked the box saying that Mr. Ginensky would surrender his driver’s license to receive a free DOS ID. He received no answer. After a month of waiting, he called PennDOT only to be put on hold for hours and receive inconsistent information: one person said Ginensky had to go to PennDot, another said he needed to pay a fee, and yet another denied both of the above.
Finally in late February, he received a letter from PennDOT that was supposed to enclose the ID. In the place where the ID should have been affixed to the paper, there was only a glue spot. So, Rogoff filled out yet another form, this one to obtain a replacement card for one that was issued but not received. Another month later, he received a letter stating that the process of obtaining the card could not be completed until the full fee of $0.00 was paid. He called the toll-free number at the end of the letter and was redirected multiple times before finally a woman on the phone said she would “take care of it.” And so, six months after he initiated the process, Mr. Rogoff finally received his father-in-law’s ID in the mail.
The third and last witness of the day was a witness placed on the stand by Alicia Hickok, representing the state. Mr. Royer is the Deputy Secretary in the Pennsylvania Department of State. He supervises the Bureau of Commissions, Elections, and Legislation. His hours of testimony had the sole purpose of emphasizing how much work the Department of State has done to educate people about the new voter ID law. He spoke of their “Ready, Set, Vote” campaign run by Hamerlin Communications through which the state spent almost $5 million on advertising. They worked with various other agencies, such as the Department of Aging, Department of Health, and Department of Welfare to target the demographics most affected by the voter ID law: the elderly and minorities. He presented 20-30 different posters, bus ads, commercials, and billboards with the tag line “Show it.”
During the cross examination, he admitted that the majority of advertisements that were run did not explain the Department of State ID or provide instructions on applying for it. Only one document mentioned the DOS ID in a list of valid voter IDs without explaining what it was. Mr. Royer also admitted that he was against Senator Fontana’s proposition to increase the availability of DOS IDs by allowing them to be issued from state legislators’ offices.
Tomorrow we return to the court to wrap up the first week of the trial.
Day Three, July 17th: Survey Day
Petitioners started the third day of the Pennsylvania voter ID trial with expert witness Dr. David Marker, a survey statistician at Westat, and an expert in sampling, survey methods, statistics and public policy, examined by Vic Walczak from the ACLU of Pennsylvania. Dr. Marker was asked to review the design and methodology of a Pennsylvania voter survey conducted in the summer of 2012. The intent of the survey was to gather various pieces of information about eligible voters in Pennsylvania, including what ID they have and their knowledge of the voter ID law.
Based on over 30 years of experience, it was Dr. Marker’s opinion that the design of the survey was reasonable. The survey consisted of calls to randomly selected landlines and cellphones with a Pennsylvania area code over a 12-day period to ask a variety of questions including, whether the caller was eligible to vote, whether they were registered to vote, what kind of identification they had, whether they knew about the new voter ID law, along with other questions.
On cross examination, Alicia Hickok from Drink Biddle & Reath LLP (counsel hired by the Governor) raised several objections to the survey methodology, including issues of indigent voters, permanent absentee ballot voters and voters who may have been on vacation during the summer survey. Dr. Marker responded to these objections by posing extreme illustrations where those objections would present the biggest difference to the number of registered voters in the state with ID. Even in these extreme situations, Dr. Marker said, the number of registered voters in the state who would still have no proper ID to vote under the new law would not be changed substantially. Dr. Marker stated that he was confident in the reliability in the survey estimating that from 600,000 to 800,000 of the registered voters would not have proper ID to be able to vote under the proposed voter ID law. The survey also revealed that 37% of the Pennsylvania population was not aware of the new voter ID law.
The next witness for the petitioners was Adam Bruckner, the founder of Philly Restart, a nonprofit organization that provides the homeless in Philadelphia with food and assistance in obtaining an ID. Bruckner testified that 100-170 people line up every Monday afternoon to get a check for $13.50 to obtain an ID card from the Pennsylvania Department of Transportation (PennDOT). Since the organization’s inception in 2002, he has assisted 38,000 people in obtaining ID. Bruckner stated that even though obtaining an ID is vital for people in being able to get jobs, and enter into some shelters and rehabilitation programs, that the homeless population he serves wants to vote. “Sometimes that is the only voice they have,” Bruckner stated. He mentioned that there is so much need for assistance in obtaining identification that he often has to turn people away because of insufficient funds.
When Bruckner first heard about the voter ID law and that people could obtain free ID cards, he was thrilled. He told clients about this free ID for over a month. He noticed, however, that people returned the next week stating that they were turned away and could not obtain an ID. When this continued for over a month, Bruckner stopped advertising the free ID. Bruckner testified that many agencies, including PennDOT, as well as various voter ID groups, send people to Philly Restart to assist people in obtaining an ID.
The last witness for the petitioners for the day was Jonathon Marks, who has worked for the Department of State for 19 years and is currently the Commissioner for the Bureau of Commissions, Elections and Legislation. The direct examination was not completed before recess was called but Vic Walczak was able to lay good groundwork for the past law regulating voting and how the new voter ID law would affect certain voters. Walczak drew out that, while the state created the free Department of State ID (DOS ID) as a safety net for those who do not have proper identification to get other forms of ID, only 3,830 DOS IDs have been issued since the ID was created in August 2012. Direct examination of Jonathon Marks will continue tomorrow.
Day Two, July 16th: Statistical Expert Testifies that Hundreds of Thousands Would be Disenfranchised by Voter ID Law
The second day of proceedings in the Pennsylvania voter ID trial began with the petitioner’s first expert witness, Dr. Bernard Siskin, a statistician. Dr. Siskin was called on to match two databases: one from the Department of State listing registered voters (known as the SURE database), and one from PennDOT containing individuals with a valid PennDOT drivers license, non-driving ID, or Department of State ID.
Using a 12-step matching process to keep the numbers as conservatively accurate as possible, Dr. Siskin found that approximately 511,000 registered voters would lack appropriate identification to vote in the upcoming November 2013 election. After explaining his methodology and findings, Dr. Siskin noted the margin of error in his analysis proved to be statistically insignificant. Even gross estimates of false negatives and positives would keep the number at, as Dr. Siskin testified, hundreds of thousands of voters.
Michael Rubin of Arnold & Porter LLP led the direct examination of Dr. Siskin, during which he addressed criticisms from William Wecker, an expert witness called by the respondents. Siskin testified that even if Wecker’s methodology yielded more accurate results and the number of registered voters without proper identification was lessened by taking into account those voting absentee, incarcerated citizens, individuals residing in care centers or on military bases, and potential students, the number of disenfranchised registered voters would still be well over 300,000. Even if one assumes 70% of these individuals have a second form of acceptable ID, 100,000 voters would still lack the proper identification to vote.
After matching the databases, Dr. Siskin conducted a demographic analysis, examining the data of individuals without valid identification by race, political party affiliation, age, and gender. His analysis shows that specific demographic groups are much less likely to have appropriate identification. Groups with a statistically higher percentage of individuals without valid identification include African American, Hispanic, and Asian voters; registered Democrats; the youngest (18-22) and oldest (70-90+) voters; and women. These differences account for both individuals who are lacking in identification and those who hold expired identification.
He also analyzed geographic information and found that the average driving distance to a PennDOT Drivers License Center is 14.11 miles and 25 minutes round-trip. He found a significant percentage of the individuals without proper identification in the compared databases, 28.7% to be exact, must drive 30 minutes or more to the nearest center. In urban areas where the centers may be closer in mileage, driving is often unfeasible and individuals must take public transit for likely one to two hours in order to get to the nearest location.
In the afternoon, Dr. Siskin was cross-examined by the respondents’ counsel, who raised many hypothetical situations designed to challenge his calculations as well as his demographic analysis. These included raising questions about issues with hyphenated names; taking into account alternate identification such as IDs issued from community care centers, colleges and universities and military bases; potential out-of-state student fraud, and more. In the redirect, Dr. Siskin demonstrated that these examples were out of the scope of his data or were accounted for through his use of reliability tests on pre-existing inherent limitations. According to Dr. Siskin these hypotheticals would not have significant effect on his findings. He stated for the record, “you can assume away the problem; you can assume away anything if you try hard enough,” arguing that hundreds of thousands of Pennsylvanians will be disenfranchised and unable to vote due to the restrictions imposed by Act 18. Click here to read Dr. Siskin’s report. Click here to view the respondent’s expert report from William Wecker.
The petitioner’s also continued to highlight the human face of this trial. On the witness stand today was Mrs. Margaret Pennington, a 90-year-old resident of Avondale, PA. She has voted in nearly every election since she turned 21, when she proudly voted for FDR. Her husband died six years ago, and since then, her eyesight has deteriorated rapidly due to macular degeneration. She is now legally blind and unable to drive, read, or perform every day tasks on her own. Recently, she moved in with her eldest daughter, who owns a small business next to her house. This daughter takes care of all of Mrs. Pennington’s affairs, including banking, driving, and more.
When Mrs. Pennington learned of the voter ID law, she went to her local Drivers License Center with her daughter to get a non-driver PennDOT ID. She was told that they did not specialize in that type of ID and she would have to go to another center to get it, adding over an hour in each direction to their trip. This was unfeasible for her daughter, who would have to close her business or pay substitute staff for the day. Despite having an expired license that has an accurate depiction of her appearance, Mrs. Pennington no longer has a valid ID as outlined in the law. She can walk with help to her polling place only a block away, but will be unable to cast her vote this November if the law is not enjoined.
Today we’ll hear from additional experts and witnesses including three individuals who have been unable to get identification, David Marker – an expert on surveys, and Jonathan Marks – the Department of State employee responsible for elections.
Day One Update: Opening Statements & Witnesses
Day one of the trial for a permanent injunction of Pennsylvania’s voter ID law opened with a resounding theme: this case is about the voters.
The voters who are at-risk of losing their constitutional right to vote are real people that face unjustifiable obstacles when it comes to meeting the identification requirements laid out in Pennsylvania Act 18 of 2012, commonly known as the voter ID law. And, no matter which experts or statistical methods are used, the reports reflect that there will be hundreds of thousands of voters disenfranchised if the permanent injunction is not granted.
Michael Rubin, an attorney from our co-counsel firm Arnold & Porter LLP, presented our opening statement this afternoon outlining the legal arguments we will prove over the next two weeks. The primary focus of our argument is that Act 18 is unconstitutional on its face. Regardless of implementation, the law inherently obstructs citizens’ fundamental right to vote. While much pretrial coverage has emphasized the number of voters affected by the law, the primary allegation against the law is that it cannot be constitutional because IDs will remain impossible to obtain for some voters. None of the ID options provided by the law are accessible for all registered voters.
Beyond the problems of the law in theory, practical implementation has been disastrous. While the voter ID law requires specific photo identification, it does not allow for identification that can be obtained without burden. If it’s still unclear just how the law creates such a burden, think about this: there are 9,300 polling places throughout the state, but there are only 71 PennDOT locations that citizens can visit to obtain appropriate identification. Some counties don’t even have PennDOT locations, while others have PennDOT locations that are only open one or two times per week. See the county-by-county breakdown here.
Today the court also heard from two witnesses by video that have essentially had to give up their right to vote because of the enormous obstacles they face to obtaining proper identification. Both testified before the court via video deposition, as they were unable to travel to Harrisburg.
Marian Baker is a 70-year-old woman who voted in every election, up until the May 2013 primary, at the public library that is just three blocks from her home. By the time this year’s primary rolled around, her only form of valid photo identification was expired. While voting during the November presidential election, a poll worker told her that this impending expiration meant she would not be able to use her ID for the May primary.
Marian is largely home bound, does not drive and has had significant health issues over the last few years. Her daughter and son-in-law, her only dependable and nearby relatives who would be able to transport her to a PennDOT location, work long hours and have children to care for. Even if Marian was physically able to take herself to the nearest PennDOT Drivers License Center, she would likely have to wait in line for hours, something she is physically incapable of doing. When she called PennDOT to ask if there was any way she might skip the line she was told that no accommodations could be made for the disabled or elderly.
Marian is not an apathetic voter. She was twice elected as a Republican committeewoman and held that position for a total of four years. She’s an engaged voter who believes in her right to have a voice in democracy: “Because I feel that if you want a say in your government, you should be voting. You should let them know what you want and how you feel about things.” You can read the full transcript of Marian’s testimony by clicking here.
The court also heard from Mina Pripstein, a Philadelphia resident in her 90’s who used to vote “every chance I get,” but stopped this past year when her photo ID also expired. Her polling place is on the second floor of her apartment complex, so she only needs to take the elevator down a few flights to vote. She’s even served as a poll worker in the past. Under the new law, she would have to go to great lengths to get to a PennDOT location on the other side of the city. Taking a bus would not only be an inconvenience, it might be extremely difficult with her physical limitations. She does not have family or friends close-by that she can rely on for a ride. Mina, who noted that voting, “it’s a part of my life, and it’s one of the few things I thought I’d always do,” has already experienced the potential ramifications of the voter ID law. Read Mina’s full testimony here.
Our legal argument also takes into account the implementation evidence that has surfaced since Act 18 was signed into law 16 months ago. Failed communications campaigns and substitute IDs have done little to nothing to improve the law’s viability. The Department of State ID that was created as an alternate to the PennDOT ID laid out in the law has been issued to less than 3,000 individuals, which doesn’t include 500 individuals who were turned away from obtaining this new ID for unknown reasons. These IDs are not issued automatically, but at the discretion of the agency and there is no legal guarantee that this “whim of government” will continue.
At the heart of this trial is the fact that the state constitution was designed to protect citizens beyond the reach of government, not increase the reach of government. In his opening statement, Michael Rubin asked, “What good will come from this law?” The state still has failed to present any evidence of fraud or voter concern for fraud that might indicate why the government has any right to step in here. We’ll continue to raise these and many other concerns over the next two weeks.
Tim Keating, a Senior Deputy Attorney General, developed a very different theory of the case: that access to ID was liberally available and that only those who chose not to vote were unable to. The commonwealth also emphasized that the Department of State ID implemented in response to the preliminary injunction sought last summer had provided a path for voters who could not otherwise obtain a PennDOT ID. The Commonwealth’s legal theory rested heavily on the 2008 US Supreme Court decision Crawford v. Marion County Election Board, which established that a state voter ID law where a free ID was available to registered voters did not violate the US Constitution. It remains to be seen whether this reasoning will be persuasive in this case, which is based on the Pennsylvania Constitution and its more explicit language protecting the right to vote.
Schedule for July 2013 Trial on Permanent Injunction
Monday, July 15: 1:00 – 3:30pm
Tuesday, July 16: 9:30am – 12:00pm, 1/1:30 – 3:30/4:00pm
Wednesday, July 17: 9:30am – 12:00pm, 1/1:30 – 3:30/4:00pm
Thursday, July 18: 9:30am – 12:00pm, 1/1:30 – 3:30/4:00pm
Friday, July 19: 9:30am – 1:00pm
Monday, July 22: 1:00pm – TBD
Tuesday, July 23: 9:00am – 12:00pm
Wednesday, July 24: 9:30am – 12:00pm, 1/1:30 – 3:30/4:00pm
Thursday, July 25: 9:30am – 12:00pm, 1/1:30 – 3:30/4:00pm
Friday, July 26: No trial
Monday, July 29: No trial
Tuesday, July 30: Time TBD
The trial for permanent injunction will be held at the Pennsylvania Judicial Center, 601 Commonwealth Avenue, Harrisburg, in Courtroom 3001, Third Floor.
Pretrial Conference Held in Preparation for Trial on Permanent Injunction
A pretrial conference was held in June to prepare for the July trial on permanent injunction of Pennsylvania’s voter ID law. This conference laid out the rules for the upcoming trial and also announced the transition to a new judge on the case: Bernard L. McGinley. Read the full transcript of the pretrial conference here.
Court Grants Plaintiffs’ Request and Orders Release of Data
Judge Simpson issued a decision ordering the Department of State and Department of Transportation to release data that will allow us to estimate the number of individuals who are currently without proper identification and would be disenfranchised by the voter ID law. This favorable decision comes after denial of numerous prior requests. Along with our partners in this case, we will use this data as we prepare to litigate for a permanent injunction of the voter ID law at trial in July. You can read the Court’s Discovery Order here.
Preliminary Injunction Extended through May 21, 2013 Elections
Another victory in our ongoing fight against Pennsylvania’s Voter ID law! On February 14, the Commonwealth agreed to extend the preliminary injunction that was granted in October through the May 21, 2013 elections, thus ensuring that the tens or hundreds of thousands of people who do not have ID will be able to vote. In May, voters will thus be asked for – but not required to show – photo ID in order to vote.
We will return to court on July 15 for trial on a permanent injunction that, if granted, would put an end to the law for good. In a stipulation filed today, plaintiffs and the Commonwealth requested that, should any other elections take place before the outcome of that trial is fully resolved, the court separately consider motions to further extend the injunction based on the record from the July 15 trial.
Trial on Permanent Injunction Scheduled for July 15, 2013
Judge Simpson has scheduled the trial on the permanent injunction of the voter ID law to begin on July 15, 2013. Plaintiffs are seeking to permanently enjoin the Commonwealth from implementing the voter ID law. The Court intends to resolve any preliminary injunctions by March 21, 2013. Plaintiffs, represented by the Law Center, ACLU of Pennsylvania, Advancement Project, and Arnold & Porter, will file a motion to extend the preliminary injunction granted in October 2012, which prevented the voter ID law from going into effect for this last election.
The motion to extend the preliminary injunction must be filed by February 8, 2013 and the response will be due February 13, 2013. All new evidence not previously received by the court must be submitted by February 28, 2013. Read the full scheduling order here.
Supplemental Injunction Requested to Stop Commonwealth from Misleading Voters about ID Requirements
On October 19th, the Law Center, along with our partners at the Advancement Project, the ACLU of Pennsylvania, and Arnold & Porter, filed a petition asking the court to order the Commonwealth to stop disseminating information that falsely states or suggests that voters will be required to show ID to vote on November 6th. In addition, we have asked the court to order the Commonwealth to take the necessary corrective measures to ensure that all voters are aware that, despite what they may have previously heard, they will not be required to show ID on Election Day.
Despite the court’s October 2nd partial preliminary injunction of the law, the Commonwealth continues to disseminate false information about the ID requirement. The week of October 8th, a significant number of senior citizens received a mailing from PACE/PACENET which falsely stated that voters will be required to show ID on November 6th and which made no mention of the availability of the Department of State ID card. In addition, plaintiffs’ attorneys have received reports that some PennDOT locations are still displaying posters that say that ID is required, and that some TV and radio ads still contain incorrect information.
In addition, the Commonwealth’s efforts to proactively inform voters about the change in the ID requirement have been virtually non-existent. Before the October 2nd injunction was issued, Commonwealth officials released nearly a dozen press releases, did two mass mailings, and held many press conferences and public appearances focused on telling voters that they would need an ID on Election Day. In contrast, since the injunction, there have been no mailings informing voters of the change, no public commentaries by Commonwealth officials, and only one press release – which hid its only reference to the fact that voters will now not be required to present ID in its fourth paragraph. While TV, print and bus ads have been modified, the revisions are too subtle or unclear to be effective. For example, billboards and bus ads still tell voters they must “Show It” (referring to ID) but now include, in much smaller font, the ambiguous phrase “if you have it.” TV ads also still tell voters to “show it,” with only a minor change in the voiceover explaining that ID is not required. Those who are hard of hearing or are simply not paying close attention will easily miss this subtle change.
We have requested that the court order the Commonwealth to send corrective notices to anyone who has received a mailing with false information since October 2nd; cease any advertisements or mailings that state or suggest that ID is required; re-word Robo-calls scheduled for the end of October; issue a press release; and hold a press conference before the election – all clearly articulating that voters will still be able to vote without ID on November 6th.
Partial Preliminary Injunction Granted; No Disenfranchisement on November 6th!
Commonwealth Court Judge Robert Simpson has granted a partial preliminary injunction in the Voter ID case, leaving the law in place but delaying its implementation so that no one is disenfranchised on Election Day. Under the Judge’s ruling, people will still be asked for identification at the polls, but if they do not have ID, they will still be allowed to vote. Judge Simpson found that given the short time frame and problems with implementation, the new Department of State ID cards do not comport with the “liberal access” requirements of the law. As a result of the large number of people who still need ID, Judge Simpson also stated that he is “not convinced… that there will be no disenfranchisement arising out of the Commonwealth’s implementation of a voter identification requirement for purposes of the upcoming election.”
Writing that the “offending conduct” is not the act of asking for photo identification itself, but rather, disenfranchising voters who do not have ID, Judge Simpson denied our request to enjoin the law and all education efforts entirely. Instead, he enjoined only the part of the law which he finds creates disenfrachisement: forcing voters who do not have ID to cast provisional ballots and then appear before the county board of elections within six days with the proper ID.
Judge Simpson has thus ordered that the “soft roll out” of the law used during the primary election, in which voters were asked for – but not required to present- ID in order to vote, be continued. While the court’s ruling protects the fundamental right to vote, we remain concerned that he has allowed the Commonwealth to continue their education campaign. That campaign, which tells people they need ID to vote, could confuse voters and keep them from the polls. We call on the Secretary of State and our Voter ID Coalition partners to make every effort to let voters know that they will NOT be disenfranchised and that they CAN vote even if they don’t have an ID.
The decision is a tremendous victory for the tens of thousands of active, engaged citizens who stood to be denied their Constitutional right to vote by this law. We thank our partners at the ACLU of PA, the Advancement Project and Arnold & Porter for their outstanding work, and you for your ongoing support.
Second Commonwealth Court Hearing: Day 2
The second and final day of hearings in Commonwealth Court began with Judge Simpson preventing two of the plaintiffs’ witnesses from testifying because their names had been added to the witness list after the deadline. As the ACLU’s Vic Walczak pointed out, this decision seemed to be indicative of a double-standard, since the Commonwealth’s attorneys had been allowed to introduce information about the new procedures for issuing DOS IDs just hours before the hearing began.
The morning’s witnesses all shared personal stories about the struggles they faced in obtaining an ID to comply with the law at PennDOT. The first was Philadelphia resident Doris Clark, who testified that after three trips to PennDOT and a visit to the Department of Vital Records, she was still initially denied an ID. It was only on her third visit to PennDOT, after loudly announcing that she would not be able to vote and would tell others the troubles she had faced, that she was given an ID. The next witness, Lakeisha Pannell had to pay to take public transporation, with her 2-year-old son, to two different utility companies to obtain proof of residency and then to PennDOT, where she waited nearly 4 hours and still had trouble obtaining ID. Jessica Hockenbury, a 19-year-old Pittsburgh resident, had all the necessary documents for a DOS ID, except for one of the two proofs of residency, and was thus denied an ID. After being told conflicting information by different PennDOT employees, she was finally issued an ID on her third trip to PennDOT. The next witness, Slava Lipowikz, described the complicated process of taking her mother, an 87-year-old Ukrainian-born woman, in a wheelchair to PennDOT. According to Lipowikz, her mother, after having lived under Nazi rule in Germany, highly valued her right to vote, but could not have traveled to PennDOT or navigated this process without assistance. We then heard from witnesses who had volunteered to help others obtain ID; they described in detail the problems they had witnessed at PennDOT centers, from poorly-trained staff, to a shortage of the required forms.
After the lunch break, Commissioner Jonathan Marks, who had previously testified on Tuesday, was called again to provide explanations for the earlier witnesses’ difficulties. He stated that voter information data is entered by county workers who sometimes make mistakes when entering data, which is why some voters, like Lakeisa Pannell, can initially not be found in the voter registration database. He also admitted that it takes weeks before voter registrations are actually processed in the database, which causes some newly registered voters to be unable to receive ID.
The next witness was Deputy Secretary of PennDOT, Kurt Myers, who had also taken the stand on Tuesday. He stated that PennDOT is “not in a position to be able to replace ID for free until after the year period of time has expired” and that he doesn’t believe the law and procedures allow for flexibility. As a result, those whose IDs are not currently expired but will be before election day, are required to pay $13.50 for a new ID. Upon cross-examination, Myers also testified that many PennDOT centers have seen significant increases in the number of customers who have to wait more than 30 minutes to be served.
After Myers stepped down from the stand, the ACLU’s Vic Walczak made a motion to have all evidence about the new protocol for the Department of State ID stricken from the record, since the petitioners did not receive any notice or information about this change until the night before the hearing, despite their earlier request for such information. Judge Simpson overruled the motion because it was only at the request of the petitioners that the information had been submitted into evidence. There was then a brief recess before the closing arguments by Mr. Walczak and Ms. Alicia Hickock, one of the attorneys for the Commonwealth.
Mr. Walczak reinforced that the Supreme Court has ordered a preliminary injunction to be issued if any disenfranchisement could take place on November 6th, which there certainly will be given the short amount of time remaining, the tens of thousands of people who still need IDs, confusion and misinformation at PennDOT centers, and no additional funds remaining to educate voters on the new procedures for obtaining the DOS ID. To allow the law to go forward based on the predictions of Commonwealth officials would be to repeat what happened in the first hearing. Ms. Hickock simply wrote off the challenges our witnesses experienced while trying to obtain ID as the frustrations of everyday life and repeated the Commonwealth’s stated commitment to provide IDs to those who need them.
The hearing concluded with Judge Simpson floating the idea of an injunction tailored to the issue of provisional ballots, which is the area of the law which he believes contains the “disenfranchisement language.” He instructed both sides to include proposals for a tailored injunction along with their post-hearing documents. A decision will be issued no later than October 2nd.
Second Commonwealth Court Hearing: Day 1
With just weeks before the upcoming November election, hearings before the Commonwealth Court repeated what we’ve heard from Commonwealth officials before: last minute changes to ID requirements and unfounded predictions that everyone will be able to obtain the ID they need before Election Day. The day’s first witness, Kurt Myers, Deputy Secretary of PennDOT, revealed that the Department of State (DOS) had again changed the requirements for obtaining ID just the night before. Now, applicants for the DOS ID will no longer need to produce two proofs of residency, designate their gender, or attempt first to acquire a PennDOT ID. Under the new policy, those looking to obtain the DOS ID must provide only their name, date of birth, and Social Security number. This was done in order to satisfy the Pennsylvania’s Supreme Court’s order to the Commonwealth Court to enjoin the law if eligible voters did not have “liberal access” to IDs. Myers also defended the waiting times at PennDOT, insisting that the department does its best to service customers in a half hour or less. In addition, despite existing misinformation at PennDOT centers, Myers confirmed that there will be no additional training for PennDOT staff on the new procedures for issuing IDs.
The second witness, Deputy Secretary of State Shannon Royer, affirmed his prediction that “every voter will know about this law by Election Day” because of a $5 million campaign that includes television, print advertisements, a national hotline, and an online website dedicated to educating voters about the requirements. However, even Royer admitted that there is no real way to determine how successful this campaign is.
The last witness called to the stand was Jonathan Marks, the Commissioner for the DOS’s Bureau of Commissions, who described the new “two-tier” system for issuing the DOS ID cards, which, he claims, will make it easier for people to obtain ID. Marks also testified that 25 percent of applicants face challenges when obtaining their ID.
At the end of the day, ACLU of Pennsylvania Director Vic Walczak read the declaration of 84-year-old Nadine Marsh which highlighted that confusion, misinformation, and limited PennDOT hours make obtaining ID extremely difficult. Ms. Marsh’s granddaughter had to email the Department of State three times before getting a response about the types of documents her grandmother would need to get ID. With the help of family, Ms. Marsh traveled the 40 miles to a PennDOT location, only to find out that the center was not producing IDs that day. Then, after making the trip again the next day, she spent an hour in line, was told that her request needed time to be processed, and was instructed to return to PennDOT after receiving a letter from Harrisburg (which she has not yet received).
Before adjournment, Judge Robert Simpson announced the possibility that he was going to enter an injunction, and ordered the parties to discuss with him “what it should look like” when the hearing resumes.
Supreme Court Sends Voter ID Case Back to Commonwealth Court
Today, the Pennsylvania Supreme Court issued a ruling in the Voter ID case. In its decision, it held that voting is a fundamental right and confirmed that if the law impedes eligible, registered voters from casting their vote, it is unconstitutional. The Court also confirmed that the law – as it is written – stands to disenfranchise eligible voters because the PennDOT ID that the law claims will be made available to everyone can, in fact, only be obtained by those with a birth certificate, social security card, and two proofs of residency. However, the Court has chosen to send the case back to the Commonwealth Court, asking the lower court to assess whether the Department Of State (DOS) card will meet this need and actually be provided to the tens of thousands of people who need it before November. At the time of the trial in Commonwealth Court, the DOS ID was not yet available; however, based on the testimony of state officials, Judge Simpson predicted that with the new ID and the Commonwealth’s outreach efforts, everyone would be able to obtain the ID they need to comply with the law. In a 4-2 opinion, the Supreme Court ruled that they “are not satisfied with a mere predictive judgment based primarily on the assurances of government officials,” and has ordered the lower court to reassess its findings and issue a new opinion by October 2nd. The Supreme Court has ordered the lower court to issue a preliminary injunction if it is not guaranteed that the procedures for issuing the DOS cards meet the requirements of liberal access. Read the full decision.
Justice Todd and Justice McCaffery both dissented based on the irreparable harm that would be caused by voters being disenfranchised on election day, with Justice Todd writing that she has “heard enough of the Commonwealth’s scramble to meet the law’s requirements … Seven weeks before an election, the voters are entitled to know the rules.” Those justices said that we don’t need more information; the law should be enjoined now.
Notice of Appeal Filed
Just one day after the Commonwealth Court denied our motion for preliminary injunction, we have filed a Notice of Appeal. Included in the Notice is a motion for an expedited schedule to ensure that the Supreme Court’s decision can be implemented before the November 6th election. We look forward to a prompt resolution of the appeal.
Preliminary Injunction Denied, but Fight Continues
Commonwealth Court Judge Robert Simpson has denied our motion for a preliminary injunction, allowing, at least for now, the law to remain in effect. Despite testimony from over a dozen witnesses and state officials to the contrary, Judge Simpson stated in his opinion that he did not believe “that any qualified elector need be disenfranchised” by the law. Read the full decision.
But the fight is not over. The Law Center and our partners at the PA-ACLU, the Advancement Project and Arnold & Porter are filing an appeal to the Supreme Court and asking the Court to put the case on a fast track in order to ensure that the over one million Pennsylvanians who do not have the ID required by the law – including women like Viviette Applewhite, Wilola Lee, and Laila Stones and Ana Gonzalez - are not deprived of their Constitutional right to help shape their future.
“The determined men and women who came to court to describe their love of this country because we can all participate through the ballot box will simply have to wait for another day and another court to vindicate this most cherished of all rights,” says Law Center Executive Director Jennifer Clarke.
We look forward to a prompt resolution of the appeal by the Supreme Court. However, we strongly encourage anyone who does not have the ID required by the law to make every attempt to obtain it. You can find help and information on how to get the ID you’ll need here.
We thank the PA-ACLU, the Advancement Project, and Arnold & Porter for their outstanding work and continued commitment.
Voter ID Law Debated over Seven Days of Trial
From July 25- August 2, 2012, the Law Center, the ACLU of Pennsylvania, Arnold & Porter and the Advancement Project presented our case against the Voter ID law in Commonwealth Court, asking Judge Robert Simpson to grant a preliminary injunction that will prevent the law from going into effect before the November election.
We heard moving testimony from over a dozen real people who stand to be disenfranchised by the law because they do not have the documentation necessary to obtain photo ID or cannot travel to a PennDOT location. We also heard from experts who described the barriers many people face when trying to obtain ID, the large number of Pennsylvanians – on the scale of one million – who do not have the ID they’ll need, and the non-existence of the type of in-person voter fraud the law is meant to prevent. Meanwhile, Commonwealth officials testified that they do not really know what the law says, have no expectation that voter fraud would occur without the law, and have no plan in place to distribute IDs to all of the roughly one million voters who may need it before November.
We expect a decision from Judge Simpson the week of August 13th.
For summaries and transcripts of each day at trial, click here
Lawyers Issue Response to Commonwealth’s New Voter ID Plan
The Law Center, along with our partners at the ACLU, the Advancement Project, and Arnold & Porter, have released a response to the Commonwealth’s announcement that it plans to make available a voter identification card- the details of which are unclear- for voters who do not have the necessary documents to obtain PennDOT ID.
“Clearly the state realizes it has a huge problem on its hands. Unfortunately, this isn’t the solution. People born in Pennsylvania without birth certificates will still have to make three trips to vote – two to PennDOT and one to the polls. That is assuming they have the other materials they need, such as their Social Security number.
This does not change the fact that the Commonwealth is expecting people without drivers licenses to somehow get to PennDOT centers – sometimes miles from their homes – during limited hours. It certainly is of no help to the elderly or those with disabilities who will still have to find a way to PennDOT and potentially wait hours to get the new ID.
PennDOT is simply not equipped to handle an influx of hundreds of thousands of individuals needing ID. Using the Department of State’s own figures for the number of individuals without PennDOT ID, PennDOT would have to issue over 15,000 ID cards every business day between August 26, the date the procedure is supposed to take effect, and Election Day.
This does nothing to address the supposed problem of in-person voter fraud – it just puts an extra hurdle in people’s way as they try to exercise their right to vote.”
Petitioners File Pre-Trial Brief for Motion for Preliminary Injunction
On July 18, the Law Center, the ACLU, Arnold & Porter and the Advancement Project filed a pre-trial brief outlining for the Court the irrationalities and barriers created by the Voter ID law, the irreparable harm that will be caused if the over 750,000 citizens without proper ID are disenfranchised, and the reasons why a preliminary injunction must be granted. The brief incorporated the findings of five expert reports (located in Case Documents above). Read the full brief.
Trial is set to begin on July 25th in Harrisburg.
Voter ID Law Disproportionately Burdens Puerto Rican Voters
Latino advocacy groups contend that the Voter ID law disproportionately affects Puerto Ricans and will prevent many from voting this November. Two years ago, in an attempt to reduce the number of counterfeit birth certificates used by non-Puerto Ricans to enter the United States illegally, Puerto Rico invalidated the birth certificates of all Puerto Rico-born citizens born before July 2010. Those people born before that date are required to apply for new security-enhanced certificates. The rush of new applications overwhelmed Puerto Rico’s vital statistics offices, and many people are still waiting. Without birth certificates, these people cannot obtain PennDOT-issued ID, the most common form of ID which meets the new law’s requirements.
The Truth Continues to Emerge about Pennsylvania’s Photo ID Law
As Pennsylvanians were leaving for a 4th of July holiday, the Pennsylvania Department of State announced that over 758,000 registered voters lack a PennDOT photo ID. This figure is nine times higher than the state’s initial estimates. The number of voters without IDs in Philadelphia was found to be especially high at 186,830 or 18 percent of the city’s total registration. According to a by-county list released by the State Department, nine other counties were reported to have over 10 percent of voters without PennDOT IDs.
The State Department noted that these numbers only include voters without PennDOT IDs and that some voters may possess other forms of acceptable identification. The Department’s spokesman also asserted that 167,566 of the 758,939 voters were “inactive.”
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Judge Denies Motion to Intervene
On May 8, 2012, eight Pennsylvania residents, led by State Rep. Thomas Killion (R. Chester), filed a motion to intervene in the Commonwealth Court in an attempt to block our request for an expedited legal process and to defend the Voter ID Law. This motion to intervene was denied on May 25 by Judge Robert Simpson, in part due to the Intervenors’ failure to come forward with evidence that voter impersonation had occurred.
Judge Sets Trial Date for Preliminary Injunction
The trial on our motion for preliminary injunction is scheduled to begin July 25, 2012 in Harrisburg and is expected to last 5-7 days with Judge Simpson presiding. The discovery process is currently underway.