Dear Municipal Officials: The First Amendment Protects Door-to-Door Canvassers

Credit: Chris Goldberg, via flickr

Dear mayors, police chiefs, and other local government officials,

In the near future, you may see an increase in people in your towns going door-to-door to strike up conversations with residents. These politically engaged folks are actively pursuing votes for their candidates of choice, a time-honored tradition since the founding of the republic. With Labor Day passed and Election Day in the near future, all political parties will be ramping up their get-out-the-vote (GOTV) efforts.

Your inclination may be to restrict this activity, or to enforce an old, outdated ordinance that requires such canvassers to first jump through any number of hoops, like giving police advance notice or fingerprinting people who will be doing the canvassing or forcing canvassers to pay a fee or to provide a criminal background check. Here at the ACLU of Pennsylvania, we’ve already received complaints that some municipalities in the commonwealth have been doing just that, including in Lackawanna, Beaver, Delaware, and Bucks counties.

Our advice to you, as leaders of local government in Pennsylvania, is simple: Don’t do it. The Supreme Court of the United States has been clear on this point. Governments cannot restrict people from going door-to-door for noncommercial purposes between the hours of 9 a.m. and 9 p.m. “Noncommercial” includes people who will be trying to convince residents of your towns to vote for their preferred candidate.

In 2002, the U.S. Supreme Court ruled that a municipal ordinance prohibiting any “canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors” from “going in and upon private property … without first registering in the office of the Mayor and obtaining a Solicitation Permit” was overbroad and violated the First Amendment’s free-speech guarantees in a case called Watchtower Bible & Tract Society v. Village of Stratton. Your solicitor might want to check it out. It was an 8-1 decision; it wasn’t even close.

In 2006, the ACLU won a lawsuit on behalf of political GOTV canvassers who challenged a municipal pre-registration requirement. In Service Employees International Union v. Municipality of Mt. Lebanon, the U.S. Third Circuit Court of Appeals declared that even a minimally burdensome “registration,” or advance-notice, requirement prior to people canvassing door-to-door violates the First Amendment.

By the way, that lawsuit cost the borough of Mount Lebanon in Allegheny County $65,000 in litigation fees and costs, which is typical in civil rights cases.

The only people who can stop canvassers from coming to their doors are the residents themselves, who can legally post “no soliciting” signs on their property.
When the government respects people’s constitutional rights, everyone wins. But, if necessary, the ACLU of Pennsylvania has no qualms about protecting the First Amendment rights of people who want to express themselves politically by talking with the residents of your towns about the upcoming election. If your police department tries to prohibit someone from going door-to-door, that person is welcome to contact us at this link.

Hopefully it won’t come to that. This memo and this FAQ should give you all of the guidance you need. You took an oath to uphold the constitution. We expect you to honor it.

The team at the ACLU of Pennsylvania

Questions Surround New Program for Purging Pennsylvania’s Voter Rolls

By Witold Walczak, Legal Director, ACLU of Pennsylvania

If something appears suspicious, and you inquire and the response is, “we refuse to tell you anything,” the natural impulse is to become even more suspicious. And that’s for normal people. But it’s heightened for ACLUers, who must have additional skepticism bred in. And when the concern is purging of voter rolls or other voter-suppression measures, alarm bells blare. That’s why we sent a letter today to Secretary of State Carol Aichele asking for an explanation and governmental transparency. Here’s the background.

Late last summer, Pennsylvania signed onto a program commonly referred to as the Interstate Voter Crosscheck Program. It was begun in 2005 and is administered by the Kansas Secretary of State. Multiple states have signed on to participate. According to the agreement signed by the Commonwealth, participants agree to “share voter registration information for the purposes of cross checking and identifying duplicate registrations and instances of multiple votes by the same individuals.”

In theory, this is not a problem and could be helpful in cleaning up duplicate registrations. But unless done right, it could also be a pretext for wrongly purging voters from registration rolls. As the saying goes, the devil is in the details.

After our inquiry to the Department of State (DOS) for information about the program was refused in mid-February, a formal Right to Know Act request produced 81 pages of documents a month later. While these documents include the agreement itself and some information about program operations, the letter accompanying the documents stated that the most important information being sought, about the ‘the purging of voter records,” was being “denied.” True to their word, the 81 pages share with the ACLU did not indicate when and how Pennsylvania planned to purge voter registrations identified by the Crosscheck Program as duplicates.

Beyond the basic withholding of documents, equally troubling was what the 81 pages did show. They do more to raise than allay our concerns about Pennsylvania’s voter-purging process under the new Crosscheck Program. The documents we received acknowledge that Pennsylvania is changing its process for handling information about duplicate registrations, but those documents do not explain the changes or include a copy of the revised “Duplicate Voter Notice” form.

The documents show that Pennsylvania will be applying a relaxed standard to identify potential duplicate voter records in other states under the Interstate Crosscheck Program, requiring just a match on first name, last name and date of birth. The system does not require a match of middle initial or Social Security number, even though in many instances that information is available. Such a low standard will yield a large number of matches. Indeed, in states slightly smaller than Pennsylvania, like Michigan, Ohio and Georgia, in 2013 the Program identified about 385,000 to 610,000 voters who might have duplicate records in other states.

But the same materials, produced by the Kansas Secretary of State’s Office, candidly acknowledge that many of those potential duplicates are false positives: “Experience in the crosscheck program indicates that a significant number of apparent double votes are false positives and not double votes. Many are the result of errors voters sign the wrong line in the poll book, election clerks scan the wrong line with a barcode scanner, or there is confusion over the father/son voters (Sr. and Jr.).” The program thus flags a huge number of voters as potential duplicates, but admits a high error rate, elevating the ACLU’s concerns about how precisely Pennsylvania will handle voter-registration cancellations.

The danger posed by voter purges, especially purges carried out right before an election, is that duly registered voters are surprised on Election Day that they are no longer listed as a registered voter at their polling place, causing them to have to vote by provisional ballot. In Pennsylvania, less than 50% of provisional ballots are counted, meaning it’s a poor substitute for a regular ballot and is more likely than not to lead to disenfranchisement. Now-notorious voter purges in Florida in 2000 may well have tilted the election. Under the guise of purging felons, non-citizens or outdated and allegedly deficient registrations, states like Florida, Ohio and others have been able to play games with people’s voting rights. The brunt of these unfair purges has fallen on poor and minority voters.

The National Voter Registration Act (NVRA) is a federal statute passed in the ‘90s to, among other things, regulate the removal of voters from the rolls and prevent improper purges. The Act provides for specific safeguards, including for voters being removed from the rolls for possibly having moved, which is what the Crosscheck Program supposedly flags.

Under the NVRA, written notice must be given to people whose registrations are being considered for cancelation, and absent confirmation of the move by the voter him or herself, there is a mandatory waiting period of two federal elections. And no purges under any system of removing names can occur within 90 days of a federal election.

Returning to the Pennsylvania situation, contained in the 81 pages of documents is advice about how and when voter records can be purged, and that advice violates the NVRA. The advice comes from the Kansas Secretary of State, Kris Kobach.

I know Kobach from another life: he was opposing counsel in our 2007 trial over Hazleton’s anti-immigrant ordinances, a case we finally won last month when the Supreme Court refused to review our Third Circuit victory. We saw that Kobach played fast and loose with immigration laws in misguided zeal to drive out undocumented immigrants in a way that threatened the well-being of lawful immigrants in Hazleton, Arizona and elsewhere.

Since Kobach’s ascension to the top election post in Kansas, voting-rights advocates have been concerned that, like with immigration, he may misuse election laws in dangerous ways. Now the concern is that he is misusing the Crosscheck Program, which he inherited from his predecessor, ostensibly to address alleged fraud but doing so in a way that could lead to purges of lawful voters.

The flaw is the same in both Kobach’s immigration and election work: the ends of addressing one problem, be it undocumented immigrants living in our midst or voters registered in two states, justifies a poorly designed cure that threatens the rights of innocent people, either lawfully present immigrants or, in this case, duly registered voters. And important legal protections to prevent errors, i.e., due process, are minimized or ignored completely.

The 81-page document production contains the most recent directions from the Kansas Secretary of State to Crosscheck Program participants, titled “2014 Participation Guide” and dated December 2013. It advises that states may “cancel” a duplicate record “if the following conditions are met”:

“a. the records match on first name, last name, and date of birth, and
b. One of both of the following data elements match:
-last four digits of Social Security number and
-signature and
c. Data in the middle name field either matches or is not a mismatch.”


“The jurisdiction poseessing the record with the older registration date may mail a confirmation notice, pursuant to the National Voter Registration Act of 1993, Sec. 8(d)(2), if the three fields match as specified in item 1.a. above. These registrants’ names are added to the state’s Inactive list pending cancellation after two federal general elections, assuming there has been not voting activity during that period.”

Unless my reading skills fail me, this tells states receiving Interstate Crosscheck data that there is an alternative to following the NVRA. Indeed, the second option outlined is the method required by the NVRA, which suggests states can avoid this legal obligation by using the first option. Nothing in federal law provides for such an alternative.

Another paragraph in the same 2014 instructions contains more legally suspect advice. Under a heading entitled, Cancellations by Confirmation Between Jurisdictions, it reads as follows:

“Pursuant to NVRA Sec. 8(d)(1)(A), the jurisdiction possessing the record with the older registration data may cancel the record (and send a cancellation notice if state law or regulations require it), if another jurisdiction confirms that the registrant has registered to vote in the new jurisdiction and has indicated on the voter registration application form an address in the former jurisdiction.”

But this would violate the NVRA because it fails to comply with the requirement that states have to notify voters in writing. Unless they receive written confirmation of the address change from the voter they have to wait two federal elections where the voter does not cast a ballot before canceling their registration.

It’s possible that there is an explanation for all this, and that the Pennsylvania Department of State intends to and will comply with federal law regarding registration cancellations, but what they’ve shared thus far certainly isn’t reassuring.

On March 12, I asked DOS officials for a meeting to discuss how Pennsylvania plans to purge voter registrations under the new Crosscheck program. Other than a nice email from the recently departed DOS chief counsel telling me he had moved on, they haven’t favored me with the courtesy of a reply.

So today we have sent a letter to Secretary Aichele again asking for a meeting to discuss when and how Pennsylvania plans to purge voter records under the Crosscheck Program. Please join us in asking Secretary of State Aichele and Governor Corbett to explain exactly how the commonwealth plans to implement the Crosscheck system, specifically in regards to purging voters from the registration rolls.

National Commission on Voting Rights – Philadelphia

By Ben Bowens, Communications Associate, ACLU of Pennsylvania


On February 6, at a National Commission on Voting Rights (NCVR) public hearing organized by the Lawyers’ Committee for Civil Rights Under Law, voters, activists, and voting rights advocates gathered at the National Constitution Center in Philadelphia to share their experiences of the voting challenges they continue to face in Pennsylvania. The ACLU of Pennsylvania was an organizing partner for the event, and I had the privilege to attend and take pictures of the proceedings. Like many in attendance I was blown away by the impassioned testimony given by both the invited guests and audience members who braved the elements to voice their concerns. I was equal parts disappointed by the lack of local media, which should have come out in full force to attended such an event.

In my opinion, the most compelling testimony of the evening came from members of the deaf community who showed up in numbers to make their voices heard. We often speak of the need for translators at polling placing for the Hispanic and Asian community, but rarely do we consider the needs to deaf and blind voters.

“When a deaf person comes in to vote, how are they going to be helped,?” said Samuel Hawk, a deaf voter who signed while an ASL translator spoke. “There has to be an ASL interpreter inside polling places, and now there’s no one there.”

Hawk was one of several deaf and hard of hearing voters who testified during the public testimony period. Challenges facing persons with disabilities was among a diverse range of voting rights and election administration issues addressed by expert witness panels and general public witnesses representing civic engagement groups, government watchdogs, student and labor union representatives and civil rights organizations including advocates from the African-American, Asian-American and Latino community.

Check out my full slideshow of the event below and for more information, visit the Lawyers’ Committee’s website.

More information on the ACLU of Pennsylvania’s voter ID challenge can be found here.

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Voter ID Victory

By Vic Walczak, Legal Director, ACLU of Pennsylvania


The bad back that awakened me at 6:00 a.m. on this birthday morning and that spurred unpleasant thoughts of growing old dissipated in an instant with an email alert that our long-awaited decision in the voter ID had issued. I didn’t have the opinion, but I had the result – we won! Thousands of hours of hard work in collaboration with my fantastic colleagues had not been a total waste. And that adrenaline rush only increased when I read the opinion.

“Disenfranchising voters ‘through [no] fault of the voter himself’ is plainly unconstitutional,” (p.43), wrote the judge, echoing something I’d been saying for two years. The judge agreed with virtually every argument we made in concluding that this law didn’t promote any valid governmental objective while disenfranchising hundreds of thousands of eligible voters.

Litigation is a wonderful tool because it gets at the truth, and in this case that meant putting the lie to the voter ID law’s proponents that ID is required to prevent rampant fraud. When pressed to identify the fraud, the commonwealth was unable to point out a single instance of the type of fraud that would be prevented by the ID. The court responded by saying that “a vague concern about voter fraud does not rise to a level that justifies the burdens constructed here.” (p.38).

So on the one hand there is no reason to have this law. On the other hand, “The overwhelming evidence reflects that there are hundreds of thousands of qualified voters who lack compliant ID.” (p.22). In the 18 months since the law went into effect, the commonwealth has issued only about 17,000 voter IDs. The gap between those who don’t have ID to vote and those have gotten it is huge – hundreds of thousands of eligible voters.

And the system was designed to make getting ID difficult. Here’s what the judge said in today’s opinion: “Requiring electors who lack complaint Photo ID (and thus have no driver’s license) go to a DLC that may not be in their county, and may be several miles away and unreachable by public transportation, is untenable. Compound that barrier by physical limitations, preventing certain electors from traveling or waiting in line, the DLC Location Requirement becomes insurmountable.” (p.28). He didn’t stop there. “Presuming applicants are able to get to a DLC, their ordeal is just beginning” (p.28) because now they have to wait in line and deal with poorly trained and unprepared PennDOT staff who give out misinformation and erect all sorts of hurdles to getting the ID.

Viviette Applewhite, 93, Philadelphia (photo credit: Marco Calderon)

Viviette Applewhite, 93, Philadelphia (photo credit: Marco Calderon)

The court also soundly rejected the commonwealth’s argument that voting is a “shared responsibility” that makes it okay to force voters to jump through a few hoops: “The statute imposes a duty upon Respondents to educate, not a duty upon electors to research.” (p.31) The court said the “shared responsibility” argument “rings hollow after Respondents fed misinformation to electors on numerous occasions, and accurate information is difficult to find.” (p.31)

The net result is that the law, “as implemented, imperfectly and inaccurately, does not assure the franchise, it de facto denies it.” (p.44). And the harm is felt most acutely by the poor and the powerless: “There is little doubt that the burdens the Voter ID Law imposes weigh most heavily on the most vulnerable members of society.” (p.47). The court concluded by saying that, “Voting laws are designed to assure a free and fair election; the Voter ID Law does not further this goal.” (p.49).

Given that proponents’ justification for the law, in-person-voter fraud, is crapola and without any basis in fact, and that hundreds of thousands of voters would be disenfranchised by the law, skewing heavily against demographics that tend to vote Democratic, there can be little doubt that Pennsylvania’s voter ID law was a voter suppression tool.

The right to vote is foundational in a democracy. The American Revolution was, after all, a fight over the right to vote. The call for no taxation without representation was a call for voting rights. Today’s decision is a wonderful day for democracy. Winning elections should be about convincing a majority of citizens that your agenda is better, not gaming the system to prevent your opponents’ supporters from casting a ballot. What a great day for the rule of law and the right of all Pennsylvania citizens. Happy birthday to me, happy birthday to me! ☺

Voter ID Trial Day 12: Closing Arguments

By Sara Mullen, Associate Director, ACLU of Pennsylvania

Today was the twelfth and final day of the voter ID trial. In front of a full courtroom, which included Secretary of State Carol Aichele, attorneys for both sides presented their final arguments to Judge McGinley.

Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia (PILCOP), argued for the petitioners. The law, she said, unreasonably burdens the cherished right to vote. Voting shouldn’t be a test of whether people are willing to go to PennDOT multiple times or endure immense physical pain to get an ID.  Pennsylvania’s constitution, unlike the U.S. Constitution, specifically states that “no power… shall at any time interfere to prevent the free exercise of the right to suffrage.”

Ms. Clarke walked the court through the various figures for people lacking PennDOT-issued ID, including testimony from Rebecca Oyler, until recently an official with the Department of State, who estimated 4-5% of registered voters (or 320,000-400,00 individuals) lack ID, to Secretary Aichele’s statement at a recent legislative hearing that 3.5% of Philadelphia voters who voted in November 2012 lacked ID (if applied statewide, that would be 190,000), to petitioner’s expert Dr. Bernard Siskin’s estimate of 511,000 registered voters who lack ID. No matter who you ask, it is clear that at least a hundred thousand if not hundreds of thousands of registered voters are at risk of disenfranchisement.

Throughout her argument Ms. Clarke wove in stories of the real voters who would be disenfranchised if the voter ID law is allowed to go into effect. Voters like Marian Baker, an elderly Berks County woman who wanted to obtain a valid ID after she learned about the law. The last time she had renewed her ID she had to stand in line for four hours at PennDOT, but a leg injury prevented her from doing so again. She called PennDOT to explain her situation and asked for an accommodation, including obtaining an ID through mail, but was told she would have to wait “just like everybody else.” Unaware that the injunction blocking enforcement of the law had been extended to the May 2013 primary, she did not vote in that election, mistakenly believing she did not have the necessary ID.

he commonwealth has argued that thanks to the “streamlined” process for obtaining a Department of State (DOS) ID at one of the 71 PennDOT locations around the state, voters can easily obtain the necessary ID for voting, said Ms. Clarke. But the Department of State’s own “exceptions spreadsheet” shows that hundreds of voters who applied for the DOS ID left PennDOT empty-handed, and even using the commonwealth’s figures (a major point of dispute during the trial), dozens of registered voters who applied for the ID before the November 2012 election either received the ID long after the election or never received it at all. If the voter ID law had been in effect, these legally registered voters would have been disenfranchised.

The commonwealth also failed to educate the public about the DOS ID. In its $4 million ad campaign, the Department of State chose not to include information about the existence of this “easily accessible” ID, nor how or where to obtain it. When asked about this oversight, Deputy Secretary for External Affairs and Elections Shannon Royer said they did not want to confuse voters by “talking about an ID most people had never heard of.”  Kurt Myers of PennDOT spoke of a “shared responsibility” that voters had to know what kind of ID they needed and where to obtain it, but if the information isn’t provided, “how can people take that responsibility?” Ms. Clarke asked.

For those unable to obtain an ID, the law provides no safety net, said Ms. Clarke. Unlike some other states with voter ID laws, the Pennsylvania version does not allow a voter who shows up at the polls without an ID to sign an affidavit affirming his or her identity. Pennsylvania also lacks another critical safety net other states have – no-excuse absentee voting.

Alicia Hickok, an attorney with Drinker Biddle Reath, argued for the commonwealth. She said that state employees worked “tirelessly and diligently” to help voters and took their responsibilities seriously. The voter ID law was to protect the public good – not the good of individuals or private interests. The Department of Aging has been reaching out to seniors, the age group most of the petitioners’ witnesses fall in to, to help them, she said.

Ms. Hickok disputed that large numbers of people lack acceptable ID, saying that petitioners’ expert played “fast and loose” with the data, and pointed to the fact that college students can use their student IDs if they have expiration dates and that those in nursing homes and personal care facilities can use an ID printed by that facility. In her rebuttal, Ms, Clarke noted that many colleges still do not issue voter ID-compliant IDs, and two Department of State officials admitted they do not track which nursing homes and personal care facilities offer their residents IDs and therefore did not know how many of residents were actually able to obtain an ID.

Ms. Hickok’s main argument was that the legislature was allowed to “regulate the franchise,” and that the voter ID merely regulates the election process – it does not “deny the franchise.” Requiring voters to show ID promotes integrity of the election. She cited Crawford v. Marion County Board of Elections, a 2008 case out of Indiana, in which the U.S. Supreme Court found that Indiana’s voter ID law was constitutional.

In her rebuttal, Ms. Clarke noted that the challenge to Pennsylvania’s voter ID law differs in several critical ways, including the fact that petitioners brought their suit under the Pennsylvania constitution and not the U.S. Constitution. In the Indiana case, petitioners did not provide testimony from a single witness who would be disenfranchised – in stark contrast to the Pennsylvania case, in which numerous witnesses testified.

When the fundamental right to vote is burdened, said Ms. Clarke, we have to weigh that against the justification. In this case, the commonwealth has not argued that there is fraud. Instead, they say it is about the “integrity of the election.” Yet the Department of State’s top career official overseeing elections, Jonathan Marks, testified that he was confident of the integrity of Pennsylvania’s elections.

In the 16 months since the law was initially passed, despite numerous tweaks and attempts to improve the system, the state has still not been able to show that no one will be disenfranchised under the voter ID law. “It is time to put an end to this and enjoin this law,” Ms. Clarke concluded.

During her closing arguments, Ms. Hickok did agree to extend the preliminary injunction blocking enforcement of the law through the November 2013 election. Petitioners are asking that the injunction continue until the case has been completely resolved. They are also asking that the “soft roll-out” aspect of the injunction, in which voters are asked for but not required to show ID, be eliminated going forward.

Following the two sides’ closing arguments, the judge announced that the court was recessed and left. For several minutes, spectators and attorneys looked around in confusion, not sure if court would be coming back into session. Several minutes later, the bailiff stuck his head out of the door to judge’s chamber and called out, “Adjourned!” With that, the voter ID trial finally came to a close.

Voter ID Trial Day 11: Closing Arguments Delayed as Dispute over Data Continued

By Sara Mullen, Associate Director, ACLU of Pennsylvania

The eleventh day of the voter ID trial proved to be an interesting mixture of boredom and drama. After a long trial, everyone involved was looking forward to closing arguments today. Instead, Judge McGinley once again closed the courtroom to everyone but attorneys in the case, leaving the dozen or so journalists and other observers to hang out in the lobby for almost two hours as the two sides continued to tangle over the Department of State (DOS) ID “exception spreadsheet.” The debate is a critical one to the case, as it gets to the issue of whether or not these IDs are actually easily accessible for voters.

The DOS exception spreadsheet is a list produced by the Dept. of State of roughly 600 voters who applied for the DOS ID – the ID the commonwealth claims is easily available to all – at PennDOT but who left without the ID in their possession. The debate between the two sides has been whether those individuals did ultimately receive the ID, how long it took, and why there was a delay in processing them. Opposing counsel fought over discussing the issue in open court, claiming that confidential PennDOT information might be revealed. Petitioners provided abundant assurances that no confidential information would be made public and believe that the real reason for the request for a closed courtroom is to keep the problems with the DOS ID system, which has the potential to disenfranchise voters if the law goes into effect, from being discussed publicly.

The morning began with the cross examination by the commonwealth of Bryan Niederberger from BLDS.  Mr. Niederberger was a rebuttal witness put on the stand yesterday over the objections of the commonwealth. He produced a report analyzing multiple documents produced by opposing counsel during discovery and the trial. He examined the data multiple ways, including versions that took into account the commonwealth’s disputed claims (they claim that 144 individuals on the list of 600+ names were erroneously included on the exception spreadsheet because they have another form of PennDOT ID). Even assuming the commonwealth’s claims are correct, the bottom line is that out of 2,530 people who applied for a DOS ID on or after September 25 (the date the new “streamlined” DOS ID procedure went into effect), at least 56 validly registered voters who went to PennDOT before the November 2012 election did not receive their DOS ID in time for the election. Seven of the 56 never received the ID.   (See page 2 of the report.) If the voter ID law had been in effect in November, these voters would have been disenfranchised.

Lawyers for the two sides retreated to their respective conference rooms to plan next steps. A clerk for the judge attempted to do some shuttle diplomacy, visiting each side to try to reach an agreement about the data. For a while it looked like the commonwealth was going to call rebuttal witnesses to rebut the petitioners’ rebuttal witness.

Journalists and other observers were finally able to enter the courtroom around 11:15 a.m. The commonwealth said it would not call any more witnesses but did file a motion asking the judge to dismiss the case, claiming the petitioners did not have standing. (The motion was not unexpected and is a fairly standard practice.)

In a surprise move, Judge McGinley announced that closing arguments would be tomorrow, August 1, at 10 a.m. rather than this afternoon. The trial has already lasted several days longer than expected.

Later in the afternoon, the judge issued a scheduling order pushing back the date of his ruling on petitioners’ request that the court block enforcement of the voter ID law until a final ruling has been made on the law. Originally due August 9, Judge McGinley will now issue an order on extending the preliminary injunction by August 19, 2013.

Voter ID Trial Day 10: Controversy Continues as Courtroom Closed to Public

By Sara Mullen, Associate Director, ACLU of Pennsylvania

The tenth day of the voter ID trial kicked off with a frequent flier on the witness stand, Jonathan Marks, the Department of State’s Commissioner for the Bureau of Commissions, Elections and Legislations, who has testified on four of the 10 days of trial so far.  Mr. Walczak, legal director for the ACLU of Pennsylvania and an attorney for the petitioners, picked up the cross-examination of Mr. Marks that began last Thursday.

Mr. Marks’s testimony under cross examination summed up many of the arguments petitioners had made throughout the trial. He testified that the nine counties that have no PennDOT driver’s license centers have anywhere from 9 to 32 polling locations each. The point was brought home when Mr. Marks testified that his current polling place is one city block from his home in Perry County – which does not have a single PennDOT driver’s license center. The nearest PennDOT driver’s license center to Mr. Marks is over 34 miles away.

Mr. Marks also admitted that several larger colleges still do not student IDs that are valid for voting because they lack an expiration date and do not provide stickers, including Duquesne in Pittsburgh and Haverford, Villanova, and Widener in the southeastern part of the state.

Mr. Marks also testified that many counties struggle to keep up with the rush of voter registrations at the registration deadline. In fact, he said, Philadelphia specifically has a backlog and is usually still processing them literally days before the election. This fact is particularly important for the DOS ID process, as the Dept. of State holds on to DOS IDs until a voter shows up on the voter rolls and then sends the ID by two or three day UPS to the voter.  (DOS IDs are only available to verified registered voters.)

The second witness of the day was Megan Sweeney, Special Assistant to the Secretary of the Commonwealth. She spearheaded the Department of State’s education efforts about the voter ID law. She testified about the department’s outreach to state agencies, counties, and others organizations about the law. She worked with Bravo group to produce the state’s educational materials and attended 40-50 events. She also did outreach to organizations that worked with nursing homes and similar facilities eligible to print their own voter IDs on regular printer paper.  Under cross examination, Ms. Sweeney admitted no one at the Dept. of State tracked how many nursing homes, personal care homes, or assisted living facilities actually produce IDs that can be used for voting.

After Ms. Sweeney’s testimony, the controversy over the DOS ID exceptions sheet erupted again. The debate stems from a spreadsheet of 615 names on the “exceptions spreadsheet,” which is a document created by the Department of State from the Sharepoint database to track any voter who attempted to get a DOS ID and left PennDOT without one.

It is important to know the DOS ID process in order to understand this controversy. PennDOT will only issue a DOS ID to registered voters. When a person applies for a DOS ID, PennDOT calls the Dept. of State to confirm the voter’s registration. If he or she does not show up on the rolls, PennDOT creates the photo ID anyway, fills out a paper voter registration form, and sends the ID and the voter registration form to the Dept. of State for processing. The voter registration information is sent on to the county, which is responsible for entering voter registrations into the system. The Dept. of State then keeps the DOS ID until the voter’s registration appears in the system, then they send it via regular UPS (not express) to the voter.

In December of 2012, Mr. Marks sent an email to PennDOT asking for information about the names of 194 people whose paper voter registration forms were sent along by PennDOT to the Dept. of State with no DOS ID attached. The PennDOT employee replied that 144 of those individuals had some other form of PennDOT ID. However, due to confidentiality issues, PennDOT would not tell Mr. Marks which of those 194 names were on the list of 144.  These 194 names appear on the DOS exceptions spreadsheet of 615 names. These numbers may sound small, but given that only 3,830 DOS IDs have been issued in total, the way these DOS applications are handled is important evidence for understanding how well the DOS ID process – the card of supposed “liberal access” – is working.

Judge McGinley has asked repeatedly during the trial for the two sides to agree on how to classify what happened with the voters on the exceptions list, some of whom either did not ever receive PennDOT ID or received it long after they had applied. The commonwealth says it has confidentiality concerns about the information on the spreadsheet.

This afternoon, petitioners attempted to finally solve the mysteries around the exceptions spreadsheet by calling Bryan Niederberger from BLDS, who has access to the confidential data, to testify about the raw numbers of voters on the spreadsheet and the resolution of their applications for the DOS ID. However, the commonwealth objected and for the second time this trial, the judge agreed that the court session would be held “in camera,” which means it was closed to everyone except counsel in the case, the witness, and the judge and courtroom staff. Petitioners objected to closing the proceeding to the public but were overruled.

Mr. Niederberger’s cross will continue tomorrow morning, possibly still in camera.  Closing arguments for both sides are also expected tomorrow.

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.