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.