Applewhite v. Commonwealth

In April of 2012, the Pennsylvania legislature passed a law requiring everyone to present certain types of photo ID before voting – a requirement that disenfranchises many people who cannot obtain ID and creates 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 filed a lawsuit in Commonwealth Court challenging the photo ID bill. The suit alleges that the law burdens the fundamental right to vote under the Pennsylvania constitution and must be struck down.

Our clients are 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 cannot obtain identification that complies with the new voter ID law.

If the law stays in place, Ms. Applewhite will not vote in November – the first time in more than 50 years that she will have missed an election.

The plaintiffs in this lawsuit are 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 with limited resources for whom the law’s requirements will be unacceptably difficult to meet. Major organizations which advocate on behalf of the disenfranchised voters have also joined as plaintiffs: the League of Women Voters, the NAACP, and the Homeless Advocacy Project.

With the complaint, we filed a Motion for Preliminary Injunction to prevent the law from going into effect and for an accelerated trial schedule in advance of the November elections.

Case Documents

Video Profiles of Plaintiffs

Case Updates

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.

Read the full transcript from Day 2 here.

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.

Read the full transcript from September 25th.

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.”

Click here to read more.

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.

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