by Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania
by Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania
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. 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.
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 VotesPA.com 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.
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.
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.
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):
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%
American Indian 8.17%
Registered Voters Lacking Valid PennDOT ID By Age (From Table 4 of Siskin’s report)
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.
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.
|“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….