Voter ID Trial Day 9: The Commonwealth’s Response to Plaintiffs’ Statistician

by Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Day 9 of the voter ID trial was occupied mostly with a heated debate about the efforts of plaintiffs’ statistical expert (Dr. Siskin, who testified on day 2 of the trial) to quantify the number of Pennsylvania voters who lack adequate photo ID, and whether a more precise count is possible.

Previously, Dr. Siskin had calculated that 511,415 registered voters listed in the official SURE voter database would lack an ID valid for voting under the voter ID law from PennDOT or the Department of State (DOS).  Today, the commonwealth offered the testimony of Dr. William Wecker in a weak attempt to demonstrate that Dr. Siskin’s analysis was so imprecise as to be unreliable.  The theme of Wecker’s critique of Dr. Siskin’s statistical analysis was that Dr. Siskin could and should have accounted for additional circumstances that might reduce the total number of disenfranchised voters.  

On cross examination, plaintiffs’ counsel (Mike Rubin, of Arnold & Porter) systematically dismantled each of Wecker’s suggested methods of generating a more “reliable” count of voters who lack ID.

One of Wecker’s more significant criticisms of Dr. Siskin was that Siskin did not measure and account for voters who lack a state-issued ID but do have a student ID that meets the voter ID requirements.  Wecker argued that such a measurement would have significantly reduced Siskin’s tally of voters without ID, and he attempted to demonstrate that such a calculation is possible by using geo-coded data to determine the number of voters aged 18-28 who lived within a 1-mile radius of each of Pennsylvania’s colleges and universities.  Using this method, Wecker concluded that there were 48,046 people who likely had access to a student ID that could be used for voting and should thus have been excluded from Siskin’s list.

As Rubin walked Wecker through this calculation, nearly every assumption underlying Wecker’s analysis fell apart, revealing that Wecker’s calculation dramatically overstated the number of registered voters who could rely on a student ID to vote.

First, Wecker admitted that he had arrived at the conclusion that there were 48,000 voters with student ID by counting every Pennsylvania college or university that was eligibleto issue student IDs that could be used to vote, including the schools that had elected not to issue such IDs.  Wecker conceded that he had not attempted to determine which schools on his list actually issued valid voter IDs.  Although defendants possessed this information and produced it in discovery, they did not provide it to Wecker, and he did not ask them for it.

Next, Rubin demonstrated to the Court that Wecker’s method of determining how many registered PA voters attended each school by drawing 1-mile-radius circles around the school bordered on the absurd when applied to non-rural schools.  Rubin showed the Court a map illustrating Wecker’s “catchment areas” for the Philadelphia schools that issue valid student voting IDs, which covered huge swaths of Philadelphia’s Center City and several other neighborhoods.  When this map was expanded to include the schools that Wecker had counted that were merely eligible to start issuing such IDs, the catchment areas swept in breathtaking expanses of Philadelphia’s densely populated urban centers.  Rubin performed the same exercise with a map of Pittsburgh that showed only the schools there that Wecker had counted that were not issuing valid student IDs, which virtually blanketed all of Pittsburgh and accounted for thousands of people whom Wecker incorrectly assumed had access to appropriate student ID.

Despite Wecker’s emphatic refrain that Dr. Siskin’s analysis was so limited as to be unreliable, Wecker conceded, over and over, that there were inherent limitations on the data available. Wecker stated at various times that it was a “fool’s errand” to try to come up with an actual count of voters without ID by comparing the SURE and PennDOT and DOS databases, and that he didn’t expect it could be done “perfectly” or that there was a “perfect” method or number available.  “It’s just as hard for me as it is for [Dr. Siskin],” Wecker conceded, describing his own calculations as a “rough cut” and “not terribly refined.”  Confronted repeatedly with the astounding shortcomings in his own methodology, Wecker ultimately suggested that his flawed calculations were nonetheless damning because they indicated there could be “some” people on Siskin’s list who should be excluded, and protested that he didn’t have “time, or a chance, or a need” to figure out whether there was a more reliable statistical method available to Dr. Siskin.  Wecker was merely there to point out that there were possible limitations in Siskin’s process — a fact Siskin already pointed out himself.

Trial resumes on Tuesday, July 30, at 9:15 a.m. with testimony from Jonathan Marks, Commissioner of the Bureau of Commissions, Elections, and Legislation with the Pennsylvania Department of State.

Voter ID Trial Day 8: The Commonwealth’s Case

By Sara Mullen, Associate Director, ACLU of Pennsylvania

Today the commonwealth called its first two witnesses, although petitioners declined to rest their case officially until an ongoing dispute over a piece of evidence is resolved. The dispute escalated this afternoon, at one point requiring everyone except Judge Bernard McGinley and lawyers for the two sides to clear the courtroom while they unsuccessfully attempted to settle the matter. 

In what proved to be a somewhat baffling choice, the commonwealth opened its case with Kelly O’Donnell, Director of Operations and Management at the Department of Aging. Ms. O’Donnell testified about the department’s efforts to educate “older Pennsylvanians,” defined as individuals 60 and older, about the voter ID law. 

During her cross examination, Marian Schneider, an Advancement Project attorney representing the petitioners, noted that the primary education document created by Ms. O’Donnell and distributed to voters states that one can get an ID at “a PennDOT driver’s license center or photo center.” Despite being a key figure in the educational efforts of her agency, Ms. O’Donnell was unaware until she was told on the stand today that one cannot get the PennDOT or Department of State (DOS) ID for voting at a photo center. (The confusion is not unusual – earlier in the trial two elderly voters testified about mistakenly going to a photo center instead of a driver’s license center to obtain an ID.) 

Ms. Schneider also produced an email from Ms. O’Donnell to a manager of a senior center in which Ms. O’Donnell erroneously stated that IDs can be obtained at a photo ID center and that PennDOT could schedule an appointment in advance for large groups of people to come in to get ID. PennDOT does not have such a program.

Ms. O’Donnell also admitted that the primary document the department used to educate older Pennsylvanians about the voter ID law was never updated to include information about the DOS ID. 

The commonwealth’s other witness of the day was Kurt Myers, Deputy Secretary for Safety Administration, whose duties include overseeing driver and vehicle services. He testified that PennDOT has issued 12,981 free-for-voting non-driver’s photo IDs and an additional 3,830 DOS IDs since the law went into effect (the DOS ID wasn’t available until August 27, 2012). He noted that every photo of an individual taken for a PennDOT ID stays in their system indefinitely and that on rare occasions, such as someone being away on military duty, PennDOT could print a new valid ID using a photo on file.

Throughout his testimony Mr. Myers stressed that obtaining an ID was a “shared responsibility” between PennDOT and its customers. People seeking ID should know where to go to get the ID and what specific “PennDOT product” they need when they arrive. “There’s an effort in life,” he said. 

When asked, Mr. Myers said he did not “agree with the premise that people don’t know the difference between a driver’s license center and a photo center.” He refused to concede that it was understandable that voters might be confused about the two kinds of PennDOT centers – despite having been in the courtroom when Ms. O’Donnell, a high ranking official in state government, admitted on the stand that she did not know the difference between the two.

Mr. Myers stated that under current protocol, PennDOT employees do not ask customers if they need a free ID for voting but instead ask them for what purpose they want an ID. If customers do not mention voting, they are not told of the option to obtain a free ID.  He seemingly did not understand the difference between a PennDOT employee proactively asking an individual if he or she needs the ID for voting and the more open-ended question of “what do you need an ID for?” After prolonged questioning on the issue, Myers said if it would make things easier, he will “issue an edict tomorrow” requiring PennDOT employees to ask customers if they need an ID for voting. 

Mr. Meyer’s testimony was briefly interrupted while the two sides attempted to resolve a long-standing dispute over a spreadsheet produced by the Department of State that lists roughly 500 individuals who were initially rejected for the DOS ID.  At issue are how many of these people were properly registered voters who should not have been rejected and which ones on the list ultimately received an ID. At one point, in an attempt to resolve the matter while protecting confidential voter information, Judge McGinley cleared the courtroom to discuss the matter with counsel from both sides. The dispute remains unresolved, as petitioners requested time to review the latest information on these voters provided under seal by the commonwealth.

Court resumes tomorrow at 9 a.m. and is tentatively scheduled to conclude for the day at 3 p.m. Witnesses include Jonathan Marks and Dr. William Wecker, an expert witness who will be critiquing the report submitted by the petitioners’ expert witness, Dr. Bernard Siskin.

Voter ID Trial Day 7: Real Voters, Real Barriers

by Sara Mullen, Associate Director, ACLU of Pennsylvania

Attorneys for the plaintiffs concluded their case today with video depositions of three elderly long-time voters, two of whom do not have valid ID and face significant challenges to getting to PennDOT to obtain one, and a third who was forced to make three separate trips (each 2 hours round-trip) before finally securing a Dept. of State (DOS) for-voting-only ID. The videos paint a clear picture of the hurdles many senior voters face when trying to obtain an ID.

The first video was of Patricia Norton, a great-grandmother of five who lives in Berks County. Because she has pins and rods in her back, she uses a wheelchair or a walker to get around and is in pain most of the time. She spends most of her time lying down on the couch or in bed, as sitting is excruciating for her. She rarely leaves home except for doctor’s appointments, although she does vote in person every election at her polling place on the corner near her house.

A regular voter who believes “voting should be important to everyone” because “we all have a stake in what’s going on,” Ms. Norton attempted to get a PennDOT ID last fall after learning about the voter ID law.  Friends took her to PennDOT driver’s license center in Shillington – a 45 minute trip by car. After the painful ride, Ms. Norton was informed by the PennDOT employee on duty (whom Ms. Norton described as “not a happy helper”) that she would have to pay $13.50, although she correctly told the clerk that the ID was supposed to be free. Ms. Norton was willing to pay to get the ID anyway, but to her dismay, PennDOT does not take cash – only checks or money orders.  Discouraged and in pain, Ms. Norton returned home without the ID.  

Ms. Norton criticized the voter ID educational ads on TV, saying they just “tell me that I need to get an ID to vote,” but they don’t “tell me how to do it or where to go.” (Ms. Norton’s video testimony is available online.)

The second video testimony came from Nadine Marsh, one of the original plaintiffs in the lawsuit. Ms. Marsh, an elderly resident of Hanover Township in Beaver County who has never had a driver’s license, described how her granddaughter repeatedly tried to contact the Dept. of State to make sure Ms. Marsh had the correct documents for obtaining an ID. After multiple attempts, the DOS finally responded.  Ms. Marsh and her daughter took the hour-long trip, only to be told that while the PennDOT driver’s license center was indeed open, it does not produce photo IDs on Mondays. 

The pair made a second attempt, but the PennDOT employees on duty had never heard of the Dept. of State (DOS) ID for voting and said they would have to contact Harrisburg and would be in touch. After spending an hour and a half at PennDOT plus two hours in the car, Ms. Marsh once again returned home empty-handed.  On October 2, her third try, she finally succeeded in obtaining her DOS for-voting-only ID. (Ms. Marsh’s video testimony is available online.)

The final voter video featured Catherine Howell, a great-grandmother and resident of Morrisville (Bucks County) who cast her first vote for Harry Truman. She was diagnosed with Parkinson’s disease four years ago and now mostly gets around using a scooter or a wheelchair. Her driver’s license expired last January. Ms. Howell’s polling place is only two blocks away at the local library. Like several other witnesses, Ms. Howell said the poll workers did not say anything about the voter ID law on Election Day. She had heard about the law, but didn’t know where to go to obtain an ID. She is unable to take the public bus to Bensalem and her children, who work full time, are often unable to drive her places. (Ms. Howell’s video testimony is available online.)

Other witnesses today included Laverne Collins, director of the Bureau of Public Transportation, who testified about the Share Ride program, and Susan Carty, the president of the state League of Women Voters, one of the organizational plaintiffs in the case. Ms. Carty testified about “tremendous amount of confusion” about the voter ID law and the calls the League received about it.

The judge announced that there will be no court on Friday, July 26, or Monday, July 29.

The commonwealth begins putting on its case tomorrow. Their first witnesses are Kelly O’Donnell of the Department of Aging and Kurt Myers from PennDOT.

Voter ID Trial Day 6: Governor and Legislature Rejected Dept. of State and Dept. of Aging’s Recommendations to Make Voter ID Law Less Burdensome

By Mary Kate Kalinich, Legal Intern, ACLU of Pennsylvania
The first witness at the voter ID trial today was David Proctor, a 67-year-old registered voter and Harrisburg resident.  Mr. Proctor testified about the difficulty he faces trying to comply with Pennsylvania’s new voter ID law. His hip, knee and back problems make it difficult for him to walk the couple miles to the nearest PennDOT location. In addition, there is no easily accessible public transit, and his closest family member works six days a week and takes care of her four children. Although Mr. Proctor does not have a valid ID under the new voter ID law, he does have a Department of Welfare ID, a merchant marine card, a swim club ID, and a bus pass with photo identification. Mr. Proctor testified that he has used these IDs to open a bank account in the past.

The second witness of the day was Rebecca Oyler, former policy director for the Department of State. Ms. Oyler testified that she reviewed aspects of the bill that would become the new voter ID law and acted as a liaison to the governor’s office. She admitted that on numerous occasions, the Department of State and the Department of Aging recommended changes to make the proposed law less burdensome that were rejected, including loosening the absentee voting restriction to accommodate those who are able to vote in person but can’t get to a PennDOT driver’s license center.   

The plaintiffs closed the day with a short clip of Secretary of State Carol Aichele’s testimony in a legislative hearing earlier this year. Secretary Aichele was asked how many individuals currently do not have valid ID. Although she could not give a concrete number for the state of Pennsylvania, she stated that studies show that 96.7% of voters in Philadelphia have acceptable ID.

Voter ID Trial Day 5: A Harsh Critique of the Commonwealth’s Voter ID Communication Campaign

By Amy Bowles, legal intern, ACLU of Pennsylvania

The first week of the constitutional challenge to Pennsylvania’s Voter ID law was rounded out by testimony from Professor Diana Mutz, Ph.D., on the ineffectiveness of the commonwealth’s efforts to educate the public about the voter ID law. Professor Mutz is the Samuel A. Stouffer Professor of Communication and Political Science at the University of Pennsylvania’s Annenberg School for Communication and an expert in political communication. Professor Mutz was hired by plaintiffs to review the commonwealth’s voter ID communication campaign.

Professor Mutz testified broadly on the campaign’s flawed design. She noted the commonwealth’s failure to adhere to standard best practices, developed by organizations like the National Research Council and widely used in communication campaigns. Notably, the commonwealth failed to pre-test their campaign materials, despite pre-testing being as inexpensive and easy as polling 15 people in a focus group to determine whether they understand and retain the desire message. The commonwealth also did not use formative evaluation, where a campaign is begun in a small area and fine-tuned based on the initial effectiveness before expanding. Professor Mutz testified that the extent to which an organization follows best practices, not the dollars expended on a campaign, is a predictor of success. She recounted examples of past campaigns, ranging from anti-drug to anti-pollution messages, where failure to adhere to best practices caused the campaign to be ineffective or even counter-productive.  

Professor Mutz also testified as to specific media produced by the commonwealth as part of the campaign both before the injunction and after. Each piece (TV spot, radio ad, magazine ad, online banner, and direct mail letter, insert, and postcard) raised its own unique concerns, but two recurring themes about the commonwealth’s campaign emerged. First, the presentation and language, “show it,” used by the campaign was vague and misleading. Professor Mutz testified that “show it” was a double entendre that could mean “show your commitment by voting” or “show ID” at the polls. Additionally, when “show it” was used in materials, it often accompanied a photo of a driver’s license, which concerned Professor Mutz because it could give the impression that a only a drivers license (not the variety of IDs on the approved list) was acceptable for voting purposes. In that sense, the campaign could be counterproductive.

Because the commonwealth failed to institute any effectiveness measures (contrary to best practice), it is unclear whether the population understood “show it” as the commonwealth intended.  In fact, the commonwealth explicitly told their vendor, Red House, that they did not want to incorporate a standard effectiveness measure. Rather, the commonwealth used “impressions,” which are based on information circulation figures (like how many people receive a magazine). Professor Mutz testified that impressions lead to high estimates and are widely regarded not to be a legitimate effectiveness measure.

Second, and perhaps more egregious, was the fact that nearly every piece of information reviewed by Professor Mutz during testimony failed to include any substantive information about how to obtain ID if a voter finds herself without one. Professor Mutz reiterated prior testimony from the state that the commonwealth intentionally did not include information about how to obtain the for-voting-only Department of State (DOS) ID out of fear that it might confuse the public. She testified that follow through is critical when an organization wants a viewer to do something in response to the message, like go to a website or call a number, and follow through requires providing a reason to take additional steps. Yet, the commonwealth’s materials provided little to no indication of why member of the public would need to visit the website or call to “learn more,” as their materials suggest.

Even if a voter did follow in an attempt to get more information, Professor Mutz found both the hotline and website problematic. Fifteen months after the voter ID law went into effect, the Votes PA (the voter hotline) operator could not answer her question, and navigating the website proved to be confusing and difficult. Of particular importance, Professor Mutz testified that the system fails to inform voters that DOS ID must be obtained when both the driver’s license center and the photo center are open (otherwise, voters would have to make an additional trip).

Though the commonwealth has committed $2.1 million to a future campaign, Professor Mutz expressed concern about the commonwealth’s plans to use the same campaign materials. She testified that materials issued after the injunction were problematic because the commonwealth largely recycled pre-injunction material with slightly altered language indicating that ID would be “asked but not required.” Recycling the same ineffective materials a third time will surely raise the same problems, said  Professor Mutz. The third time will not be the charm.   

Ms.Alicia Hickok, counsel for the commonwealth, attempted to undermine Professor Mutz’s testimony through cross-examination. Ms. Hickok pointed to the “soft rollout” (where voters were asked for ID at the polls and those who didn’t provide it were told they would need it in the future),  the over one million hits received by the VotesPA website, and the programs initiated in senior centers and libraries as evidence that the commonwealth created an effective campaign. However, Professor Mutz reiterated that though those measures had potential for educating voters in select cases, the commonwealth has issued no evidence pointing to their implementation or broad effectiveness.

The trial will resume at 1:00 on Monday, July 22.

Voter ID, Day 4, July 18, 2013

by Paul Anderson, legislative intern, ACLU of Pennsylvania

This morning began where the trial left off yesterday. Jonathan Marks, the Department of State’s Commissioner for the Bureau of Commissions, Elections and Legislation, continued his testimony about the Department of State (DOS) ID, the special form of ID designed as an alternative for those registered voters who could not obtain a secure PennDOT ID. Central to Marks’s testimony was the question of whether the issuance and delivery of DOS IDs satisfied the voter ID law’s requirement that IDs be liberally accessible to eligible voters.

Much of the morning was spent pouring over petitioners’ Exhibit 2071, the DOS ID Exceptions Spreadsheet that cataloged each DOS ID applicant who was flagged and initially denied a DOS ID from PennDOT. Reasons for denial included, but were not limited to, the applicant not being registered to vote, concerns about duplicate registration, and inconsistencies in identifying information. This information was used to determine how many duly registered voters were unable to get a valid ID before last year’s November 6 general election. Through Mr. Marks’s testimony, and a bit of lawyerly math, it was determined that 2,255 DOS IDs had been issued since September 27, 2012. Of persons duly registered to vote on or before October 9, 2012 (the deadline to register for the 2012 general election), 42 did not have IDs delivered by November 6, and 82 of those individuals have still not been sent an ID as of early July 2013. This indicates that 5.49% of persons who applied for a DOS ID were duly registered to vote in the 2012 election but did not received an ID before Election Day.  That’s a pretty devastating error rate when it means disenfranchising voters. 

Members of that group had some compelling back stories. There was a lot of focus, from both petitioners and respondent, on a 94-year-old woman, registered since 1944, who went to PennDOT in October 2012 did not receive a valid ID until March 2013. The commonwealth focused on a name discrepancy to explain the delay. The voter in question had registered as Mrs. [husband’s first name] [last name], a practice that seems wholly anachronistic today but was not uncommon during World War II. The commonwealth seemed unperturbed that a voter who has cast a ballot since 1944 would have been, absent the temporary injunction, unable to vote in the 2012 election simply because of the name she registered with 69 years ago. 

The commonwealth did not aggressively dispute the conclusion that 124 voters would have been disenfranchised by the voter ID law They suggested in cross examination that those people actually got IDs through another process, but they did not specify how or present any specific information.  Instead, respondent’s counsel returned Marks to his Wednesday testimony in an attempt to show that the DOS measures, in coordination with the efforts of the county boards of elections, would help ensure that all eligible voters who apply for an ID would have it by Election Day. While Mr. Marks testified that his department would do everything in its power to ensure that it can get IDs to as many eligible voters as possible, he was unwilling to speculate whether or not the Department of State would have had the resources to ensure, absent the injunction, no eligible voters were disenfranchised in 2012.

 Marks concluded that he remained confident in the integrity of Pennsylvania’s elections even after the voter ID law’s enactment, despite agreeing with the conclusion that petitioners had evidence of 124 eligible voters who have been disenfranchised if the law had been in effect.

After lunch, Andrew Rogoff,  a lawyer from Pepper Hamilton LLP, took the stand to testify to the difficulty his late father-in-law, Herbert Ginensky, had in obtaining a valid photo ID in the months before his recent passing. Mr. Ginensky, a life-long New Yorker and WWII veteran, moved with his wife to Pennsylvania because of their failing health. Mr. Ginensky had ceased driving so when his driver’s license was due to expire, he chose to forgo renewal and apply for a DOS ID through PennDOT. What should have been a relatively smooth application process turned into a bureaucratic nightmare. Mr. Rogoff helped his father-in-law fill out the necessary paperwork in November 2012. After failing to get a response for several months, he called PennDOT to find out what the delay was. PennDOT told him that Mr. Ginensky could come in to a PennDOT location to receive his ID, but given Mr. Ginensky’s health, this was not ideal. In late February, a letter from PennDOT finally arrived, but it lacked the DOS ID card, informed Mr. Ginensky his application for driver’s license renewal (which he did not apply for) had been postponed, and most bizarrely, informed him that he had an outstanding balance of $0.00 that he owed PennDOT. After resending a notarized form (at the cost of $5.00) and “paying off” his $0.00 balance, Mr. Ginensky finally received is DOS ID card on May 24—three days after the May 21 election.

On cross-examination, respondent counsel attempted to raise some doubts about Mr. Rogoff’s factual claims (was he sure the ID wasn’t in the envelope when it left PennDOT? Haven’t you ever been tied up in red tape, Mr. Rogoff?), but he was a sympathetic witness.

Shannon Royer, the Department of State’s Deputy Secretary for External Affairs and Elections, was the final witness. He testified out-of-order on behalf of the commonwealth. After relaying the history of electronic voter registration databases in Pennsylvania, Mr. Royer explained how the department orchestrated a statewide education campaign that “touch[ed] all corners of the state.” Targeting minority groups, non-English speakers, seniors, college students and the financially disadvantaged, the education campaign deployed advertisements in a cornucopia of media platforms:  television, newspapers and magazines, radio, buses, mail flyers, billboards, online banner ads, and social media, to name just a few. There were pre- and post-injunction advertisements. The pre-injunction ads used the phrase, “If you want to vote—show it!” while the post-injunction ads altered it to, “If you have it—show it!” In both instances “it,” of course, refers to a valid photo ID.

Mr. Royer was visibly proud of the education campaign, and his testimony revealed he was of the belief that, if anything, the department overestimated the number of people it would need to reach with the idea. He also cited the “soft roll-outs” (the term used for the policy in place at the 2012 general and 2012 and 2013 primary elections where voters were asked, but not required, to produce a valid photo ID). While the evidence indicated that the department did spend a lot of money ($5 million so far, with another $2.65 million pledged) on getting the word out about the requirements of the voter ID law, he was not able to provide evidence of how well the campaign actually worked in getting valid photo IDs into the hands of those who need them.

Mr. Royer’s testimony clearly demonstrated that the department, despite spending a fortune on the education campaign, committed absolutely no funds to analyzing the success of the campaign. He could give neither a general statistic regarding how many eligible voters still lack a valid ID nor more specific stats about how effective the campaign was for the targeted demographics. There was also a brief disagreement regarding whom the law actually affects. Mr. Royer contended that the voter ID law’s indigence exception allows anyone to circumvent the law by asserting that he or she is poor and filling out a provisional ballot. (Of course, since IDs are free, no one can legitimately sign an affidavit saying they can’t afford to get a free ID, so the exception is useless.)  Petitioners’ counsel questioned that interpretation, arguing that the law required both a claim of indigence and an assertion that the person could not afford to get an ID. There were also questions raised about how effectively the education campaign publicized the DOS ID. Indeed, not a single ad even mentioned the DOS ID. In a key admission, Royer stated that they intentionally didn’t mention the DOS ID because they didn’t want to confuse voters with driver’s licenses who might think they needed additional ID to vote. The overriding concern was to ensure that voters with ID bring the ID – no to helping voters without ID get one.

Ultimately, the department will likely claim that the education campaign was an operational success, but it lacked the evidence to conclude the campaign did what it was supposed to do—get more eligible voters valid IDs. Without any sort of study into the campaign’s effectiveness, the department (and, by extension, the Commonwealth Court) remains in the dark as to whether the campaign significantly increased the number of people who have valid IDs to vote.

After over three hours on the stand and another late day in court that ended at 5:00 p.m., Mr. Royer was finally permitted to step down, and the court recessed. As Mr. Royer was called out of order, petitioners will resume their case tomorrow. Diana C. Mutz, Ph.D., a professor from the University of Pennsylvania, will critique the Department of State’s education campaign, including its failure to meet the standards of an effective information campaign. 

It is also looking likely that the trial will extend to the week of July 29.

Voter ID Trial Day 3, July 17, 2013

by Thad Eagles, legal intern, ACLU of Pennsylvania

Wednesday marked the third day of witness testimony in the challenge to the state’s voter ID law brought by the ACLU of Pennsylvania, the Public Interest Law Center of Philadelphia, Advancement Project, and the law firm of Arnold & Porter. It also marked a shift from statistical analysis to the beginning of testimony regarding the accessibility of the identification required for voting.
The first witness was David A. Marker, PhD, an expert in public policy surveys and statistics who works for Westat, a Maryland business that does large-scale statistical studies. (Dr. Marker’s report is available here.) Dr. Marker reviewed the methodology of a study conducted last year by a Dr. Barreto to determine the number of voters in Pennsylvania who do not have identification that would allow them to vote, and testified that it was conducted in accordance with all professional standards, and that he had full confidence in the results. Dr. Barreto concluded that the number of eligible voters in Pennsylvania without acceptable ID likely numbered over one million, and is definitely in the hundreds of thousands. (Dr. Barreto’s original report is available here.)

Dr. Marker testified that the study reliably showed that 1.2-1.5 million eligible voters were without proper identification and 900,000-1.2 million registered voters were without proper identification, either because they lacked ID completely or the name on the ID did not match that of the name they registered under. He also addressed several issues with the study that Judge Simpson had identified last year, testifying that even if the alleged flaws in the study were factored in, there would still be hundreds of thousands of Pennsylvanian voters without the required ID. For example, Judge Simpson criticized the fact that, because the study was conducted over 12 consecutive days in the summer, there was the possibility that a disproportionate number of non-responses were from people on vacation, and those who go on vacation for 12 straight days are likely to have higher incomes and thus more likely to have identification. Dr. Marker testified that, even assuming that everyonewho was unreachable was on vacation, and that the rate of those lacking IDs was half that of the average, the estimate of eligible Pennsylvanians who do not have proper ID would only be reduced from 12.8% to 7.9%, which still leaves hundreds of thousands of disenfranchised people. 

Needless to say, it is absurd to think that all, or even a substantial percentage, of the people who could not be reached were unavailable because they were on vacation. Similarly, Dr. Marker testified that even if we assume that no one whose name on their ID differs from their name in the voter registration is denied access to the polls for that reason, there would still be well over 500,000 voters who do not have the required ID.  

Attorneys for the commonwealth identified other areas of concern during their cross-examination, trying to poke holes in the study’s conclusions. For example, defendant’s counsel Alicia Hickock brought up the possibility that asking people if they had “official” PennDOT identification might lead them to believe that the question referred to something more than their driver’s license or non-driving identification card, or that those who were on vacation were more likely to have a passport, which the study did not take into account. Ms. Hickock also pointed out that the study did not take into consideration the number of people who did not have identification but permanently used absentee ballots and would not be disenfranchised. However, on re-direct, Mr. Walczak demonstrated that only 15-18,000 voters fall into that category, which is negligible as compared to the hundreds of thousands of registered voters who do not have ID. Again, even if you assign far more weight than is reasonable to the factors objected to by the state and by Judge Simpson, the fact remains that hundreds of thousands of eligible and registered voters in Pennsylvania are disenfranchised by the voter ID law.

In one strange line of questioning, Ms. Hickock asked Dr. Marker if, given the fact that he testified that civically engaged, educated individuals were more likely to respond to surveys, there was a possibility that those who felt strongly about the voter ID law might have said they didn’t have ID when they did have it in order to express their feelings about the law. Dr. Marker responded that if the survey did reach a disproportionately educated, engaged part of the population, it would instead mean that those without IDs were under-represented in the survey – not over-represented.

The second witness of the day was Adam Bruckner, the founder of Philly Restart, the only nonprofit in Philadelphia dedicated to helping homeless persons pay to get IDs required for things such as employment and voting. His organization has unfortunately been forced to require a referral letter before providing assistance because the demand for their services so far exceeds what they can provide. Mr. Bruckner testified that he informed everyone who came to his agency that PennDOT ID was now free for those who needed it to vote. However, after many of those he sent to PennDOT to get this ID were turned away, he simply stopped making the announcement. Mr. Bruckner passionately testified about the great need for IDs in the homeless community, saying that the men and women he serves “care about voting because they care about life… Voting means a lot to them because it’s sometimes the only voice they have.”

The third and final witness of the day was Jonathan Marks, Commissioner of the Bureau of Commissions, Elections and Legislation with the Pennsylvania Department of State, who testified that he had complete confidence in the integrity of the elections held in Pennsylvania before the passage of the voter ID law, when voters only had to show identification the first time they voted in a particular precinct and sign a poll book when they voted, which poll workers then compared to the signature on file. Mr. Marks then testified about the details of the voter ID law, which requires that voters present one of a short list of IDs that does not include many common forms of identification, such as a IDs provided by the Department of Veteran’s Affairs. 

The most common and accessible IDs on the list are from PennDOT, and getting one requires, among other things, going to a PennDOT office. Nine counties do not have an office and 22 have offices that are only open one or two days a week. Mr. Marks also testified  that there have been fewer than 100 free non-driver’s photo IDs issued per month since November and less than 50 DOS IDs issued per month in that time, for a total of only 16,811 of these types of voting IDs issued since March of 2012, helping only a tiny fraction of the hundreds of thousands of Pennsylvanians without the necessary ID.

Mr. Marks began to testify about the surprisingly complex requirements of the new DOS ID, but ran out of time. His testimony will resume tomorrow morning at 9:30 am. Other witnesses set to testify tomorrow include Diana Mutz, a communications expert who will critique the state’s education campaign, and 

Shannon Royer, Deputy Secretary for External Affairs and Elections.

Voter ID Trial Day 2: Voter ID By the Numbers

Today was a bonanza for data geeks, although not nearly so satisfying for those looking for a precise number of voters without valid ID for voting. By the end of the day it had become clear, however, that hundreds of thousands of registered voters are at risk of losing the ability to vote if the voter ID law goes into effect.

The bulk of the day involved testimony from Dr. Siskin, Director of BLDS LLC and an expert statistician. Siskin was hired by the plaintiffs to take the SURE database (the state’s voter registration database) and compare it to the PennDOT database (containing information about driver’s licenses, non-driver’s photo IDs, and the DOS ID) to determine how many registered voters do not have valid PennDOT ID. (Although several other forms of ID are acceptable for voting, such as a passport, expert testimony in the previous trial showed that only a small percentage of people without PennDOT ID have one of the other forms.)

Siskin discussed the findings in his report (available here and highly recommended for anyone interested in this issue) and his methodology, which involved a 12-step process using a variety of techniques for getting the broadest possible number of matches, including using an algorithm that accounts for typos and transposed letters and numbers. (The steps are available in Siskin’s report in Appendix A.)

Siskin also broke the data down by all registered voters as well, as those who voted in November 2012. Of the roughly 8.2 million registered voters, he found that 251,879 could not be matched to a PennDOT ID. When narrowed down to those who voted in 2012, the number was whittled down to 89,753. Additionally, another 259,536 voters were a positive match for having an ID expired over a year by the November 2013 election and thus invalid for voting purposes. Of November 2012 voters, 53,293 had an expired PennDOT ID.

Siskin’s totals: 511,415 (6.21%) of all registered voters do not have ID. 143,046 (1.74%) of voters who cast a ballot in November 2012 do not have valid ID.

Of course, Siskin noted, there are many variables at play, including both false positives and false negatives for the “unmatched” list. The exact figure wasn’t as important as the fact that even accounting for database errors and other problems, it was clear that hundreds of thousands of Pennsylvania voters do not have a valid PennDOT ID.

The commonwealth hired William Wecker, another statistician and consultant, to review Siskin’s report. Mike Rubin, plaintiff’s attorney, questioned Siskin about Wecker’s criticisms of Siskin’s report. One by one, Siskin demolished the majority of Wecker’s claims (the bulk of which are on p. 5, paragraph 12, of Wecker’s report).  Wecker  took Siskin to task for not accounting for other non-PennDOT forms of ID an eligible voter could use and claimed to have found tens of thousands of voters of the 511,415 who would have other forms of ID.
Siskin countered that his charge was simply to match the PennDOT and voter databases  – not to determine how many voters had some other form of valid ID for voting, which would be a much bigger task. He also eviscerated several of Wecker’s claims (not all of which are noted here):

  • Wecker claimed that 18,217 voters lived in personal care facilities eligible to print their own voting IDs. However, “eligible” to print does not, of course, mean that the facilities will do so. More glaringly, Wecker estimated that anyone 65 and over living within a tenth of a mile of a care facility was a resident , rather than relying on matching the address of the facility with voter records.
  • Wecker also claimed that 48,046 voters on Siskin’s list were college students and therefore could use their school IDs for voting. Leaving aside the fact that not all colleges are producing IDs with expiration dates (including Bucknell University), Wecker derived this list by assuming that every voter aged 18-28 who lives within a mile of a university is a college student. As Siskin pointed out, schools such as Temple , University of Pittsburgh, and University of Pennsylvania are located in urban areas where a mile radius encompasses many non-students.  (When the radius was reduced to a tenth of a mile, that number dropped to roughly 11,000 people.)
  • Wecker stated that he found 2,547 individuals living on military bases who would therefore possess military IDs, which are eligible for voting (if they include expiration dates). However, Wecker’s set takes in everyone on the list who lives within three miles of a military base. 

Even if all of Wecker’s numbers were accurate (and not accounting for overlap of populations, such as those who vote absentee and those in care facilities), Siskin noted that there would still be well over 300,000 individuals without a valid PennDOT ID.

Siskin also testified about his analysis of the demographics of those without PennDOT ID.  Among his findings:

Registered Voters Lacking Valld PennDOT ID  By Race/Ethnicity (From Table 2 of Siskin’s report)

White (non-Hispanic)   5.49%
African American   10.80%
Hispanic   10.89%
Asian    11.17%
American Indian   8.17%
Multirace    8.53%

Registered Voters Lacking Valid PennDOT ID By Age (From Table 4 of Siskin’s report)

18-22   11.07%
23-49    6.81%
50-69    3.21%
70-79    4.62%
80-89    11.86%
90+    40.58%

Analyses were also done by gender and political party, as well as an analysis of round-trip driving times for voters to get to PennDOT to obtain an ID. (These are all available in the tables in Siskin’s report.)

Alicia Hickok, an attorney representing the defendants, attempted to chip away at Siskin’s numbers in a prolonged cross examination by asking about registered voters who might now be incarcerated, those with suspended licenses who would show up in the PennDOT database as having expired licenses, and people who  had moved out of state. She also took Siskin to task for not using other databases available to figure out which voters might have died, who might have moved away, and who is in prison and therefore ineligible to vote.

Siskin acknowledged that his numbers might be reduced to some small degree but reiterated his original assessment – that hundreds of thousands of eligible Pennsylvania voters are at risk of being disenfranchised under the voter ID law.

The court also heard testimony from Margaret Pennington, a 90-year-old voter without voter ID.

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Voter ID Trial Begins

For the second July in a row, Harrisburg’s Judicial Center played host to a voter ID trial. Once again, reporters and interested citizens packed the courtroom to watch lawyers from the ACLU of Pennsylvania, the Public Interest Law Center of Philadelphia, Advancement Project, and Arnold & Porter go toe-to-toe with lawyers from the commonwealth over the constitutionality of the state’s voter ID law.

A notable difference from the previous two trials was the absence of Judge Robert Simpson. Presiding in his stead was Judge Bernard McGinley, a Pittsburgh resident who was first elected to Commonwealth Court in 1987.

After some technical delays and a brief meeting with counsel in the judge’s chambers, the trial began. Michael Rubin of Arnold & Porter delivered the plaintiffs’ opening remarks. He laid out in detail what the plaintiffs will prove at trial: that the law would lead to hundreds of thousands of eligible voters losing their right to vote, that the law intentionally restricts the types of IDs that are acceptable for voting, and that obtaining an ID can be difficult for many eligible voters, even with the relaxed guidelines for the Department of State (DOS) ID.  The education campaign launched by the state about the voter ID law was confusing and inadequate, and it made no mention of the DOS ID. These problems, Rubin said, are “baked into the law itself and can’t be fixed by better implementation.”

Most important, said Rubin, the court will hear in-person and video testimony from a number of voters  who currently lack ID and face the risk of disenfranchisement if the law is not overturned – people like Nadine Marsh, an elderly woman who made three separate trips, two hours roundtrip, to obtain a voter ID.

Although the commonwealth and plaintiffs’ experts don’t agree on the precise number of voters at risk of disenfranchisement, Rubin said, both will testify that the number is in the hundreds of thousands. (Copies of the two expert reports are available online.)

The commonwealth should not be surprised at this number, Rubin added. The General Assembly had multiple opportunities to amend the law before passage to make it easier for voters to comply, including expanding the list of acceptable IDs, accepting expired IDs and IDs without expiration dates, allowing all employer photo IDs, and allowing a wider number of agencies, including municipalities, to print IDs.  Instead, despite warnings from the Dept. of State and the Dept. of Aging in a joint memo about the risk of disenfranchising vulnerable Pennsylvanians, the legislature and Gov. Corbett chose to make it harder to vote. 

The commonwealth’s solution to the mounting evidence that some voters simply could not obtain a PennDOT ID was to create a new for-voting-only ID last year, known as the DOS ID. However, Rubin said, the evidence will show that the DOS ID implementation was fraught with problems.  A number of registered voters were rejected for the DOS ID – the card to which voters were supposed to have “liberal access.”

The supposed “ease” of getting a DOS ID is also curtailed by the limited number of locations for obtaining the ID. Nine counties in Pennsylvania do not have a single PennDOT Driver’s License Center, and an additional 22 counties have centers that are only open one or two days a week.  A system for “liberally available IDs should not require [voters] to leave the county,” observed Rubin.

Tim Keating of the Attorney General’s Office provided much briefer opening remarks for the commonwealth. He said that it is “not unduly burdensome to have some small segment of people go to PennDOT to have their photos taken.” The “option of obtaining an ID is open to anyone who wants to vote.”  He noted that in the 2008 Crawford case, in which Indiana’s voter ID was upheld by the US Supreme Court, the court found that the need for voters to believe in the integrity of the voting process “outweighed the slight burden for some people to go out and get an ID.”

Plaintiffs also presented two video depositions. 

The first was from Marian Baker, a 71-year-old grandmother from Reading who broke her leg several years ago and suffered a heart attack during surgery to repair it. On doctor’s advice, she stopped driving. A Republican committee woman for eight years in the 1980s, Baker voted at her polling location every year except in 2008, when she was hospitalized. That year she cast an absentee ballot for “her man,” John McCain.  She lives only a few blocks from her polling place.  Baker relies solely on her daughter and son-in-law, who have eight children and work long and erratic hours, for transportation. 

A regular voter since 1960, Baker last voted in this past November. On Election Day 2012, she presented her expired drivers’ license as requested by the poll worker and was informed that she could not vote in the May election without current ID.

The last time Baker attempted to get her license renewed, she stood in line for four hours.  Due to her injury, she is now physically incapable of standing for extended periods of time.  Fearing she would not be able to vote unless she renewed her ID, she called PennDOT to see if they could make any special accommodations for her disability but was told bluntly that she’d have to stand in line “like everybody else.” She asked if she could obtain an ID through the mail but was told no. Having been told by a poll worker that she needed ID to vote in 2013 and unaware that the preliminary injunction had been extended to cover the primary, Baker did not vote in the May 2013 election.

The final video of the day featured Mira Kanter Pripstein, a charming 93-year-old whose wry observances frequently caused laughter among the spectators in the courtroom. A life-long Philadelphian, she broke her leg in a fall five years ago, severely limiting her mobility.  In May 2013 she served as a poll worker at the polling place located in her building.  Pripstein cast her first vote for FDR and believes that voting “is what this country is based on.”  Voting is “one of the few things I thought I’d always do,” she said. But due to mobility issues and limited options for transportation, Pripstein admitted under questioning that she likely would not go to PennDOT to obtain the necessary ID. When probed about this admission by the commonwealth’s attorney, she responded tartly, “I’d like you to come back and ask me that when you’re 93.” 

Transcripts of Baker’s and Pripstein’s testimony are available online

Court resumes tomorrow, Tuesday, July 16, at 9:30 a.m.  Scheduled witnesses include Bernard R. Siskin, plaintiffs’ expert on the number of people without PennDOT IDs; Jonathan Marks, Commissioner of the Bureau of Commissions, Elections and Legislation, Pennsylvania Department of State; and Margaret G. Pennington, an elderly, long-time voter without ID who will be testifying in person.

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The rocky road of defending civil liberties in Harrisburg

“Later, y’all! Y’inz! You guys!”

The last trickle of activity in the spring session of the Pennsylvania General Assembly carries on tomorrow, as the state Senate finishes some budget-related matters. The state House has already left town. And there’s no truth to the rumor that they were run out of town on a rail. That’s not even possible since they didn’t invest anything in rail.

In the final weeks of June, all was largely quiet on the civil liberties front at the state capitol. That’s a good thing. When the legislature starts screwing with civil liberties, it usually ends badly.

And it did end badly for women’s access to reproductive healthcare. On June 17, Governor Corbett signed House Bill 818. This bill prohibits insurance companies from covering abortion care in policies in the insurance exchange, or marketplace, created by the federal healthcare reform law. Narrow exceptions exist only for rape, incest, and imminent death of the woman.

I’ve been trying to decide which is the most scandalous aspect of this story. Is it the state government meddling in a private transaction between a private company and a private customer, under the flimsy excuse that the exchange is administered by the government? (The federal government, mind you. The Corbett administration opted out of administering the exchange at the state level.) The supporters lamely claim that insurance coverage from Blue Cross is equivalent to Medicaid.

Is it the lack of a health exception that the Senate defeated, 24-26? Some women have serious complications in pregnancy that can lead to health problems but not death and that are best avoided via abortion. If a woman faces that crisis and has insurance through the exchange, sorry, she has to pay out of pocket. Here is how that vote went down.

Or is it the inability of the General Assembly to pass an infrastructure investment and repair bill (author’s note: not a civil liberties issue) while finding the time to restrict women’s access to comprehensive reproductive healthcare? Hey, a bridge might collapse, but at least they found time to restrict abortion!

Here at ACLU-PA HQ, Harrisburg, we’re gearing up for summer work with legislators and staff on revising the child protective services law and revisions to the Right to Know law.

And here’s something to look forward to in the fall: A storm is brewing over privacy and mass data collection, specifically in legislation to collect DNA from people who have not been convicted of a crime and to create a new database of Pennsylvanians’ prescription drug use. These are issues where ACLU-PA gets to flex its nonpartisan cred by working with Republicans and Democrats who recognize that we do not want to go down the road of a Total Information Society.

So our legislators are (almost) out of here for the summer. They can enjoy their recess with the knowledge that their constituents will think of them everytime they bounce off a pothole in the middle of state route (fill in the blank). And we can rest assured that civil liberties are safe for the next two months. See you in September….

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