Voter ID: Applewhite v. Commonwealth


Second Commonwealth Court Hearing

With just weeks before the upcoming November election, hearings before the Commonwealth Court repeated what we’ve heard from Commonwealth officials before: last minute changes to ID requirements and unfounded predictions that everyone will be able to obtain the ID they need before Election Day.

Day 1

The day’s first witness, Kurt Myers, Deputy Secretary of PennDOT, revealed that the Department of State (DOS) had again changed the requirements for obtaining ID just the night before. Now, applicants for the DOS ID will no longer need to produce two proofs of residency, designate their gender, or attempt first to acquire a PennDOT ID. Under the new policy, those looking to obtain the DOS ID must provide only their name, date of birth, and Social Security number. This was done in order to satisfy the Pennsylvania’s Supreme Court’s order to the Commonwealth Court to enjoin the law if eligible voters did not have “liberal access” to IDs. Myers also defended the waiting times at PennDOT, insisting that the department does its best to service customers in a half hour or less. In addition, despite existing misinformation at PennDOT centers, Myers confirmed that there will be no additional training for PennDOT staff on the new procedures for issuing IDs.

The second witness, Deputy Secretary of State Shannon Royer, affirmed his prediction that “every voter will know about this law by Election Day” because of a $5 million campaign that includes television, print advertisements, a national hotline, and an online website dedicated to educating voters about the requirements. However, even Royer admitted that there is no real way to determine how successful this campaign is.

The last witness called to the stand was Jonathan Marks, the Commissioner for the DOS’s Bureau of Commissions, who described the new “two-tier” system for issuing the DOS ID cards, which, he claims, will make it easier for people to obtain ID. Marks also testified that 25 percent of applicants face challenges when obtaining their ID.

At the end of the day, ACLU of Pennsylvania Director Vic Walczak read the declaration of 84-year-old Nadine Marsh which highlighted that confusion, misinformation, and limited PennDOT hours make obtaining ID extremely difficult. Ms. Marsh’s granddaughter had to email the Department of State three times before getting a response about the types of documents her grandmother would need to get ID. With the help of family, Ms. Marsh traveled the 40 miles to a PennDOT location, only to find out that the center was not producing IDs that day. Then, after making the trip again the next day, she spent an hour in line, was told that her request needed time to be processed, and was instructed to return to PennDOT after receiving a letter from Harrisburg (which she has not yet received).

Before adjournment, Judge Robert Simpson announced the possibility that he was going to enter an injunction, and ordered the parties to discuss with him “what it should look like” when the hearing resumes.

Read the full transcript from September 25th.

Day 2

The second and final day of hearings in Commonwealth Court began with Judge Simpson preventing two of the plaintiffs’ witnesses from testifying because their names had been added to the witness list after the deadline. As the ACLU’s Vic Walczak pointed out, this decision seemed to be indicative of a double-standard, since the Commonwealth’s attorneys had been allowed to introduce information about the new procedures for issuing DOS IDs just hours before the hearing began.

The morning’s witnesses all shared personal stories about the struggles they faced in obtaining an ID to comply with the law at PennDOT. The first was Philadelphia resident Doris Clark, who testified that after three trips to PennDOT and a visit to the Department of Vital Records, she was still initially denied an ID. It was only on her third visit to PennDOT, after loudly announcing that she would not be able to vote and would tell others the troubles she had faced, that she was given an ID. The next witness, Lakeisha Pannell had to pay to take public transporation, with her 2-year-old son, to two different utility companies to obtain proof of residency and then to PennDOT, where she waited nearly 4 hours and still had trouble obtaining ID. Jessica Hockenbury, a 19-year-old Pittsburgh resident, had all the necessary documents for a DOS ID, except for one of the two proofs of residency, and was thus denied an ID. After being told conflicting information by different PennDOT employees, she was finally issued an ID on her third trip to PennDOT. The next witness, Slava Lipowikz, described the complicated process of taking her mother, an 87-year-old Ukrainian-born woman, in a wheelchair to PennDOT. According to Lipowikz, her mother, after having lived under Nazi rule in Germany, highly valued her right to vote, but could not have traveled to PennDOT or navigated this process without assistance. We then heard from witnesses who had volunteered to help others obtain ID; they described in detail the problems they had witnessed at PennDOT centers, from poorly-trained staff, to a shortage of the required forms.

After the lunch break, Commissioner Jonathan Marks, who had previously testified on Tuesday, was called again to provide explanations for the earlier witnesses’ difficulties. He stated that voter information data is entered by county workers who sometimes make mistakes when entering data, which is why some voters, like Lakeisa Pannell, can initially not be found in the voter registration database. He also admitted that it takes weeks before voter registrations are actually processed in the database, which causes some newly registered voters to be unable to receive ID.

The next witness was Deputy Secretary of PennDOT, Kurt Myers, who had also taken the stand on Tuesday. He stated that PennDOT is “not in a position to be able to replace ID for free until after the year period of time has expired” and that he doesn’t believe the law and procedures allow for flexibility. As a result, those whose IDs are not currently expired but will be before election day, are required to pay $13.50 for a new ID. Upon cross-examination, Myers also testified that many PennDOT centers have seen significant increases in the number of customers who have to wait more than 30 minutes to be served.

After Myers stepped down from the stand, the ACLU’s Vic Walczak made a motion to have all evidence about the new protocol for the Department of State ID stricken from the record, since the petitioners did not receive any notice or information about this change until the night before the hearing, despite their earlier request for such information. Judge Simpson overruled the motion because it was only at the request of the petitioners that the information had been submitted into evidence. There was then a brief recess before the closing arguments by Mr. Walczak and Ms. Alicia Hickock, one of the attorneys for the Commonwealth.

Mr. Walczak reinforced that the Supreme Court has ordered a preliminary injunction to be issued if any disenfranchisement could take place on November 6th, which there certainly will be given the short amount of time remaining, the tens of thousands of people who still need IDs, confusion and misinformation at PennDOT centers, and no additional funds remaining to educate voters on the new procedures for obtaining the DOS ID. To allow the law to go forward based on the predictions of Commonwealth officials would be to repeat what happened in the first hearing. Ms. Hickock simply wrote off the challenges our witnesses experienced while trying to obtain ID as the frustrations of everyday life and repeated the Commonwealth’s stated commitment to provide IDs to those who need them.

The hearing concluded with Judge Simpson floating the idea of an injunction tailored to the issue of provisional ballots, which is the area of the law which he believes contains the “disenfranchisement language.” He instructed both sides to include proposals for a tailored injunction along with their post-hearing documents. A decision will be issued no later than October 2nd.

Read the full transcript from Day 2 here.