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.
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.