Voter ID: Applewhite v. Commonwealth


Trial on Permanent Injunction Begins

Day one of the trial for a permanent injunction of Pennsylvania’s voter ID law opened with a resounding theme: this case is about the voters.

Day One Update: Opening Statements & Witnesses

The voters who are at-risk of losing their constitutional right to vote are real people that face unjustifiable obstacles when it comes to meeting the identification requirements laid out in Pennsylvania Act 18 of 2012, commonly known as the voter ID law. And, no matter which experts or statistical methods are used, the reports reflect that there will be hundreds of thousands of voters disenfranchised if the permanent injunction is not granted.

Michael Rubin, an attorney from our co-counsel firm Arnold & Porter LLP, presented our opening statement this afternoon outlining the legal arguments we will prove over the next two weeks. The primary focus of our argument is that Act 18 is unconstitutional on its face. Regardless of implementation, the law inherently obstructs citizens’ fundamental right to vote. While much pretrial coverage has emphasized the number of voters affected by the law, the primary allegation against the law is that it cannot be constitutional because IDs will remain impossible to obtain for some voters. None of the ID options provided by the law are accessible for all registered voters.

Beyond the problems of the law in theory, practical implementation has been disastrous. While the voter ID law requires specific photo identification, it does not allow for identification that can be obtained without burden. If it’s still unclear just how the law creates such a burden, think about this: there are 9,300 polling places throughout the state, but there are only 71 PennDOT locations that citizens can visit to obtain appropriate identification. Some counties don’t even have PennDOT locations, while others have PennDOT locations that are only open one or two times per week. See the county-by-county breakdown here.

Today the court also heard from two witnesses by video that have essentially had to give up their right to vote because of the enormous obstacles they face to obtaining proper identification. Both testified before the court via video deposition, as they were unable to travel to Harrisburg.

Marian Baker is a 70-year-old woman who voted in every election, up until the May 2013 primary, at the public library that is just three blocks from her home. By the time this year’s primary rolled around, her only form of valid photo identification was expired. While voting during the November presidential election, a poll worker told her that this impending expiration meant she would not be able to use her ID for the May primary.

Marian is largely home bound, does not drive and has had significant health issues over the last few years. Her daughter and son-in-law, her only dependable and nearby relatives who would be able to transport her to a PennDOT location, work long hours and have children to care for. Even if Marian was physically able to take herself to the nearest PennDOT Drivers License Center, she would likely have to wait in line for hours, something she is physically incapable of doing. When she called PennDOT to ask if there was any way she might skip the line she was told that no accommodations could be made for the disabled or elderly.

Marian is not an apathetic voter. She was twice elected as a Republican committeewoman and held that position for a total of four years. She’s an engaged voter who believes in her right to have a voice in democracy: “Because I feel that if you want a say in your government, you should be voting. You should let them know what you want and how you feel about things.” You can read the full transcript of Marian’s testimony by clicking here.

The court also heard from Mina Pripstein, a Philadelphia resident in her 90’s who used to vote “every chance I get,” but stopped this past year when her photo ID also expired. Her polling place is on the second floor of her apartment complex, so she only needs to take the elevator down a few flights to vote. She’s even served as a poll worker in the past. Under the new law, she would have to go to great lengths to get to a PennDOT location on the other side of the city. Taking a bus would not only be an inconvenience, it might be extremely difficult with her physical limitations. She does not have family or friends close-by that she can rely on for a ride. Mina, who noted that voting, “it’s a part of my life, and it’s one of the few things I thought I’d always do,” has already experienced the potential ramifications of the voter ID law. Read Mina’s full testimony here.

Our legal argument also takes into account the implementation evidence that has surfaced since Act 18 was signed into law 16 months ago. Failed communications campaigns and substitute IDs have done little to nothing to improve the law’s viability. The Department of State ID that was created as an alternate to the PennDOT ID laid out in the law has been issued to less than 3,000 individuals, which doesn’t include 500 individuals who were turned away from obtaining this new ID for unknown reasons. These IDs are not issued automatically, but at the discretion of the agency and there is no legal guarantee that this “whim of government” will continue.

At the heart of this trial is the fact that the state constitution was designed to protect citizens beyond the reach of government, not increase the reach of government. In his opening statement, Michael Rubin asked, “What good will come from this law?” The state still has failed to present any evidence of fraud or voter concern for fraud that might indicate why the government has any right to step in here. We’ll continue to raise these and many other concerns over the next two weeks.

Tim Keating, a Senior Deputy Attorney General, developed a very different theory of the case: that access to ID was liberally available and that only those who chose not to vote were unable to. The commonwealth also emphasized that the Department of State ID implemented in response to the preliminary injunction sought last summer had provided a path for voters who could not otherwise obtain a PennDOT ID. The Commonwealth’s legal theory rested heavily on the 2008 US Supreme Court decision Crawford v. Marion County Election Board, which established that a state voter ID law where a free ID was available to registered voters did not violate the US Constitution. It remains to be seen whether this reasoning will be persuasive in this case, which is based on the Pennsylvania Constitution and its more explicit language protecting the right to vote.

Read the full court transcript here.

Day Two, July 16th: Statistical Expert Testifies that Hundreds of Thousands Would be Disenfranchised by Voter ID Law

The second day of proceedings in the Pennsylvania voter ID trial began with the petitioner’s first expert witness, Dr. Bernard Siskin, a statistician. Dr. Siskin was called on to match two databases: one from the Department of State listing registered voters (known as the SURE database), and one from PennDOT containing individuals with a valid PennDOT drivers license, non-driving ID, or Department of State ID.

Using a 12-step matching process to keep the numbers as conservatively accurate as possible, Dr. Siskin found that approximately 511,000 registered voters would lack appropriate identification to vote in the upcoming November 2013 election. After explaining his methodology and findings, Dr. Siskin noted the margin of error in his analysis proved to be statistically insignificant. Even gross estimates of false negatives and positives would keep the number at, as Dr. Siskin testified, hundreds of thousands of voters.

Michael Rubin of Arnold & Porter LLP led the direct examination of Dr. Siskin, during which he addressed criticisms from William Wecker, an expert witness called by the respondents. Siskin testified that even if Wecker’s methodology yielded more accurate results and the number of registered voters without proper identification was lessened by taking into account those voting absentee, incarcerated citizens, individuals residing in care centers or on military bases, and potential students, the number of disenfranchised registered voters would still be well over 300,000. Even if one assumes 70% of these individuals have a second form of acceptable ID, 100,000 voters would still lack the proper identification to vote.

After matching the databases, Dr. Siskin conducted a demographic analysis, examining the data of individuals without valid identification by race, political party affiliation, age, and gender. His analysis shows that specific demographic groups are much less likely to have appropriate identification. Groups with a statistically higher percentage of individuals without valid identification include African American, Hispanic, and Asian voters; registered Democrats; the youngest (18-22) and oldest (70-90+) voters; and women. These differences account for both individuals who are lacking in identification and those who hold expired identification.

He also analyzed geographic information and found that the average driving distance to a PennDOT Drivers License Center is 14.11 miles and 25 minutes round-trip. He found a significant percentage of the individuals without proper identification in the compared databases, 28.7% to be exact, must drive 30 minutes or more to the nearest center. In urban areas where the centers may be closer in mileage, driving is often unfeasible and individuals must take public transit for likely one to two hours in order to get to the nearest location.

In the afternoon, Dr. Siskin was cross-examined by the respondents’ counsel, who raised many hypothetical situations designed to challenge his calculations as well as his demographic analysis. These included raising questions about issues with hyphenated names; taking into account alternate identification such as IDs issued from community care centers, colleges and universities and military bases; potential out-of-state student fraud, and more. In the redirect, Dr. Siskin demonstrated that these examples were out of the scope of his data or were accounted for through his use of reliability tests on pre-existing inherent limitations. According to Dr. Siskin these hypotheticals would not have significant effect on his findings. He stated for the record, “you can assume away the problem; you can assume away anything if you try hard enough,” arguing that hundreds of thousands of Pennsylvanians will be disenfranchised and unable to vote due to the restrictions imposed by Act 18. Click here to read Dr. Siskin’s report. Click here to view the respondent’s expert report from William Wecker.

The petitioner’s also continued to highlight the human face of this trial. On the witness stand today was Mrs. Margaret Pennington, a 90-year-old resident of Avondale, PA. She has voted in nearly every election since she turned 21, when she proudly voted for FDR. Her husband died six years ago, and since then, her eyesight has deteriorated rapidly due to macular degeneration. She is now legally blind and unable to drive, read, or perform every day tasks on her own. Recently, she moved in with her eldest daughter, who owns a small business next to her house. This daughter takes care of all of Mrs. Pennington’s affairs, including banking, driving, and more.

When Mrs. Pennington learned of the voter ID law, she went to her local Drivers License Center with her daughter to get a non-driver PennDOT ID. She was told that they did not specialize in that type of ID and she would have to go to another center to get it, adding over an hour in each direction to their trip. This was unfeasible for her daughter, who would have to close her business or pay substitute staff for the day. Despite having an expired license that has an accurate depiction of her appearance, Mrs. Pennington no longer has a valid ID as outlined in the law.  She can walk with help to her polling place only a block away, but will be unable to cast her vote this November if the law is not enjoined.

Read the full transcript of today’s testimony here.

Today we’ll hear from additional experts and witnesses including three individuals who have been unable to get identification, David Marker – an expert on surveys, and Jonathan Marks – the Department of State employee responsible for elections.

Day Three, July 17th: Survey Day

Petitioners started the third day of the Pennsylvania voter ID trial with expert witness Dr. David Marker, a survey statistician at Westat, and an expert in sampling, survey methods, statistics and public policy, examined by Vic Walczak from the ACLU of Pennsylvania.  Dr. Marker was asked to review the design and methodology of a Pennsylvania voter survey conducted in the summer of 2012. The intent of the survey was to gather various pieces of information about eligible voters in Pennsylvania, including what ID they have and their knowledge of the voter ID law.

Based on over 30 years of experience, it was Dr. Marker’s opinion that the design of the survey was reasonable. The survey consisted of calls to randomly selected landlines and cellphones with a Pennsylvania area code over a 12-day period to ask a variety of questions including, whether the caller was eligible to vote, whether they were registered to vote, what kind of identification they had, whether they knew about the new voter ID law, along with other questions.

On cross examination, Alicia Hickok from Drink Biddle & Reath LLP (counsel hired by the Governor) raised several objections to the survey methodology, including issues of indigent voters, permanent absentee ballot voters and voters who may have been on vacation during the summer survey.  Dr. Marker responded to these objections by posing extreme illustrations where those objections would present the biggest difference to the number of registered voters in the state with ID.  Even in these extreme situations, Dr. Marker said, the number of registered voters in the state who would still have no proper ID to vote under the new law would not be changed substantially. Dr. Marker stated that he was confident in the reliability in the survey estimating that from 600,000 to 800,000 of the registered voters would not have proper ID to be able to vote under the proposed voter ID law.  The survey also revealed that 37% of the Pennsylvania population was not aware of the new voter ID law.

The next witness for the petitioners was Adam Bruckner, the founder of Philly Restart, a nonprofit organization that provides the homeless in Philadelphia with food and assistance in obtaining an ID.  Bruckner testified that 100-170 people line up every Monday afternoon to get a check for $13.50 to obtain an ID card from the Pennsylvania Department of Transportation (PennDOT).  Since the organization’s inception in 2002, he has assisted 38,000 people in obtaining ID.  Bruckner stated that even though obtaining an ID is vital for people in being able to get jobs, and enter into some shelters and rehabilitation programs, that the homeless population he serves wants to vote. “Sometimes that is the only voice they have,” Bruckner stated.  He mentioned that there is so much need for assistance in obtaining identification that he often has to turn people away because of insufficient funds.

When Bruckner first heard about the voter ID law and that people could obtain free ID cards, he was thrilled.  He told clients about this free ID for over a month.  He noticed, however, that people returned the next week stating that they were turned away and could not obtain an ID.  When this continued for over a month, Bruckner stopped advertising the free ID.  Bruckner testified that many agencies, including PennDOT, as well as various voter ID groups, send people to Philly Restart to assist people in obtaining an ID.

The last witness for the petitioners for the day was Jonathon Marks, who has worked for the Department of State for 19 years and is currently the Commissioner for the Bureau of Commissions, Elections and Legislation.  The direct examination was not completed before recess was called but Vic Walczak was able to lay good groundwork for the past law regulating voting and how the new voter ID law would affect certain voters.  Walczak drew out that, while the state created the free Department of State ID (DOS ID) as a safety net for those who do not have proper identification to get other forms of ID, only 3,830 DOS IDs have been issued since the ID was created in August 2012.  Direct examination of Jonathon Marks will continue tomorrow.

Click here to read the transcript of the third day of trial.

Day Four, July 18th: Exceptions, Delays and Misdirects

The fourth day of the Voter ID trial began with the continuation of the examination by ACLU Lawyer Witold “Vic” Walczak of Mr. Marks, an employee of the Bureau of Commissions, Elections, and Legislation. Although the examination started off slowly, with the necessary clarification of terms such as active voter, inactive voter, invalid voter and list maintenance, it quickly snowballed to reach several interesting conclusions. Mr. Marks testified that some of the Department of State IDs (DOS ID) printed at PennDOT locations were labeled as “exceptions,” and instead of being issued to voters on the day they applied at PennDOT, were instead sent to the Department of State to verify that those applicants were registered voters. When Mr. Walczak pulled up the exceptions spreadsheet provided by the DOS, Marks conceded that there were 507 exceptions after September, 2012 out of 2,530 total DOS IDs issued. A subset of the people classified as “exceptions” eventually received their ID in the mail. Unfortunately, as Mr. Walczak concluded, this still means that 22.5% of the people who applied for a DOS ID did not receive their ID when they went to PennDOT to apply, but were instead told that their application had to be reviewed. Furthermore, over half of the applicants who were labeled exceptions never received their IDs. One third of exceptions actually received a letter in the mail telling them to return to PennDOT and reapply for a DOS ID.

Mr. Walczak continued to lead Mr. Marks through a step-by-step statistical analysis; this time in regards to people who registered to vote, subsequently attempted to acquire a DOS ID to vote in the November 2012 presidential election, and did not receive one in time. Walczak beautifully extrapolated the frustrating situation one individual had to go through using only the information provided from the exceptions spreadsheet. Person #12 was a 94-year-old woman who had been registered to vote since 1944. She went to PennDOT in October 2012 to receive a DOS ID in order to vote in that year’s presidential election. There she was told that, although she stated that she had been registered since 1944, PennDOT had to confirm her statement with the DOS before issuing her an ID via mail. She did not receive her DOS ID until March 2013. Mr. Marks admitted during his testimony that there are 124 Pennsylvanians who experienced similar situations.

In the state’s examination of Mr. Marks, it was revealed that there were 144 individuals who were labeled as exceptions but actually received another form of identification. The state claimed that this invalidates Walczak’s analysis. Nevertheless, the state admitted that they did not know the names of these individuals until a couple of days ago and have not yet done any analysis of their own.

The second witness of the day, Andrew Rogoff, was examined by the Law Center’s Ben Geffen. Mr. Rogoff has been a practicing lawyer since 1977 and is a counsel at Pepper Hamilton LLP. Mr. Rogoff recalled his trials and frustration when attempting to obtain a DOS ID for his father-in-law, Herbert Ginensky. Mr. Ginensky had an amazing life – he served in Iwo Jima, he was a Cadillac body-worker, he owned a delicatessen in Brooklyn, and later got into real estate. He voted almost every year since 1940, including in local judicial elections. Towards the last years of his life, he asked Mr. Rogoff to take care of his paperwork and bills. Therefore, when Mr. Rogoff realized that Mr. Ginensky’s driver’s license was about to expire, he decided to help his father-in-law apply for a DOS ID. Mr. Rogoff filled out all of the appropriate paperwork and checked the box saying that Mr. Ginensky would surrender his driver’s license to receive a free DOS ID. He received no answer. After a month of waiting, he called PennDOT only to be put on hold for hours and receive inconsistent information: one person said Ginensky had to go to PennDot, another said he needed to pay a fee, and yet another denied both of the above.

Finally in late February, he received a letter from PennDOT that was supposed to enclose the ID. In the place where the ID should have been affixed to the paper, there was only a glue spot. So, Rogoff filled out yet another form, this one to obtain a replacement card for one that was issued but not received. Another month later, he received a letter stating that the process of obtaining the card could not be completed until the full fee of $0.00 was paid. He called the toll-free number at the end of the letter and was redirected multiple times before finally a woman on the phone said she would “take care of it.” And so, six months after he initiated the process, Mr. Rogoff finally received his father-in-law’s ID in the mail.

The third and last witness of the day was a witness placed on the stand by Alicia Hickok, representing the state. Mr. Royer is the Deputy Secretary in the Pennsylvania Department of State. He supervises the Bureau of Commissions, Elections, and Legislation. His hours of testimony had the sole purpose of emphasizing how much work the Department of State has done to educate people about the new voter ID law. He spoke of their “Ready, Set, Vote” campaign run by Hamerlin Communications through which the state spent almost $5 million on advertising. They worked with various other agencies, such as the Department of Aging, Department of Health, and Department of Welfare to target the demographics most affected by the voter ID law: the elderly and minorities. He presented 20-30 different posters, bus ads, commercials, and billboards with the tag line “Show it.”

During the cross examination, he admitted that the majority of advertisements that were run did not explain the Department of State ID or provide instructions on applying for it. Only one document mentioned the DOS ID in a list of valid voter IDs without explaining what it was. Mr. Royer also admitted that he was against Senator Fontana’s proposition to increase the availability of DOS IDs by allowing them to be issued from state legislators’ offices.

Click here to read the transcript of the fourth day of trial here.

Day Five, July 19th: First Week of Trial Concludes with Expert Witness Analyzing Commonwealth’s Education Campaign

Friday marked the end of the first week in the voter ID trial. Testimony and evidence presented in court over the last five days laid a strong, evidence-based foundation for our argument that the voter identification law is unconstitutional.

Throughout the week, we heard personal stories from long-time voters and thorough analysis by expert witnesses. We learned that hundreds of thousands of registered voters stand to be disenfranchised by the voter ID law. Witness testimony proved that the system for obtaining identification is marred by inaccessibility, complex hurdles and systemic inconsistencies.  And today the court learned that the commonwealth’s public education and advertising campaign failed both in creating awareness about the new identification requirements and in making clear the methods voters could use to meet those requirements.

The voter ID law contains a directive that the state must educate eligible voters about the change in law and provide information on complying with the law. Today Diana Mutz, Ph.D., who is the Samuel A. Stouffer Professor of Communications and Political Science at the University of Pennsylvania, was called to the stand to testify about the effectiveness of the state’s education campaign. Professor Mutz specializes in analyzing political communications, or in her words, “the citizen’s relationship to the political process,” through the study of mass media and interpersonal communications.

Professor Mutz analyzed the public education and advertising campaign the state implemented under the directive, both after the voter ID law was signed and after the preliminary injunction was secured. Her testimony overwhelmingly showed that the campaign failed to meet the state’s goals to educate eligible voters.

After reviewing her credentials, Vic Walczak of the ACLU led the examination by asking Professor Mutz to walk through her analysis of the campaign’s messaging as it was implemented across a variety of platforms, including television and radio ads, internet banners, direct mailings, billboards, bus ads, magazine ads and automated calling.

Her report noted that the campaign’s primary slogan, “Show It,” was ambiguous, and never made clear what the “it” actually references. Furthermore her analysis showed that, “Show It,” presumes that an individual, “had an ‘it’ to show,” and therefore did not take into account voters who did not have identification, even though this group should have been one of the campaign’s target audiences. In addition to selecting a poor slogan, the pictures and video used in the campaign predominantly featured a Pennsylvania driver’s license, potentially indicating that other forms of identification would not have been accepted at the polls on election day.

Professor Mutz explained just how the ads themselves largely failed: the audio and visuals in the television campaign failed to reinforce one another to create a clear and cohesive message; a crucial piece of information about whether or not identification was actually required was left to a voice over instead of to a visual depiction in the television ads and sometimes was not even included in other mediums; and, information on the voter hotline and website many times showed up in ads in small print and with few directions, at best.

Professor Mutz noted multiple times throughout her testimony that the roll out of the “Show It” campaign never included methods for evaluating the effectiveness of the messaging, as is standard practice in information campaigns. The state never chose to conduct message pre-testing in a targeted media market or with focus groups, even though pre-testing is many times an extraordinarily affordable way to obtain feedback and incorporate it to make a campaign more successful.

The “Show It” ad campaign was used both before and after the preliminary injunction was secured, though Professor Mutz’s analysis showed the state did little to distinguish any changes in the advertisements following the preliminary injunction. Instead of distinguishing the two messaging campaigns, the state chose to make subtle differences that did little to clarify to the audience that identification was no longer required. In some places, the “second” campaign still included a statement about the documentation needed to obtain identification, even after the DOS ID was introduced.

In addition to evaluating the advertisements and mechanics of the campaign, Professor Mutz reviewed the “follow-through” of the campaign. She shared that many campaigns require audience members to take a second step once they have seen an ad, and research shows that an effective campaign provides an incentive for an audience member to take his or her own initiative to actually take that next step. Additionally, for an audience member to follow that step to completion, Professor Mutz noted that the next step must be clear and simple.

Professor Mutz walked the court through her experience taking the “Show It” campaign’s follow-through steps by visiting the website and calling the 877-VOTES-PA hotline – the two resources that were listed on advertisements. Sometimes these outlets were listed under the phrase, “Learn more” while other times they were simply listed with no instructions. Professor Mutz found the website to be extremely difficult to navigate and the phone line to be similarly convoluted. When she tried calling after business hours, she was not even able to leave a voice mail or connect with an operator. The follow-through steps took time to use and were never guaranteed to actually lead to clear instructions on how to obtain identification.

Mr. Walczak concluded his examination by asking Professor Mutz if she had any experience studying voter confidence in elections. She noted that her research has involved this focus area, citing a nationwide survey that found that only 0.1% of the 12,000 voters surveyed mentioned anything related to voter fraud. She noted that surveys have shown that voters are primarily concerned with the financing of elections, the level of trust they can place in candidates to follow through on their promises and low voter turn out.

Alicia Hickok cross-examined Professor Mutz before court recessed for the weekend. Trial picks up again on Monday, July 22nd at 1:00pm.

Read the full transcript here.

Day Six, July 22nd: Officials’ Testimony Recognizes Need for Exceptions To Law

The second week of the trial began with an afternoon half-day focused on memos produced by the state and presented by the plaintiffs. These memos showed records of state officials’ reservations towards the voter ID law and the potential disenfranchisement it could bring to voters as well as the way in which these reservations were ultimately ignored.

The first witness of the day was David Procter. The 67-year-old retired Harrisburg resident has disabilities that have made mobility challenging and have prevented him from walking more than a mile in the past two years. However, for Mr. Procter, voting is easy: his polling place is only two blocks from his house. Although he has a bus pass with a photograph, a swim club membership, and a merchant marine ID card, he lacks a driver’s license or valid PennDOT ID. His license expired many years ago, but he never renewed it because he does not have a car and therefore does not drive. The nearest PennDOT is 1.5 miles from his house and not easily accessible by bus. Although he has a niece who lives in Pennsylvania, she has four children and a demanding work schedule and is not a feasible option for transportation. Without a car or anyone to drive him, Mr. Procter is unable to reach the drivers’ license center and therefore unable to get a valid ID for voting.

The next witness of the day was Rebecca Oyler, former policy director for the Department of State. Before the current voter ID law went into effect, she acknowledged that voter registration cards counted as a form of ID. This would allow anyone who was a registered voter to have some form of valid ID and therefore be able to continue voting. Ms. Oyler acknowledged that the “soft rollout” during the November 2012 election may not have been consistently implemented across different counties. During her testimony, she discussed the research she did about ID laws in other states and acquiesced that other states had exceptions to these laws for certain groups of voters (e.g. the elderly) that Pennsylvania lacks. She expressed concerns about different groups of people who could have difficulty with the new ID law including minorities, non-English speakers, and more, and explained that the general assembly and policy office discussed these concerns prior to the law’s passage and implementation. The defense later clarified that Ms. Oyler was not one of the main officials responsible for the implementation of the law, and that certain groups of people (e.g. military officials overseas) were covered by exceptions.

The day closed with a video of testimony from Pennsylvania Commonwealth Secretary Carol Aichele at a legislative hearing. Ms. Aichele discussed a Committee of Seventy study that determined the percentage of Pennsylvanians with valid identification to be 96.5%.

The overarching theme of lead counsel Michael Rubin’s questioning was aimed at demonstrating the underlying unconstitutionality of this law. Since this law deals with voting, a fundamental right, it must be narrowly tailored to meet a compelling government interest. The line of questioning, which focused on memos and various correspondences between Ms. Oyler and other officials, showed that the legislature knew that this law would disproportionately affect certain groups of citizens. Mr. Rubin opted to prove that through various amendments and proposed changes to the bill, the legislature had the opportunity to broaden the categories of identification deemed acceptable, but opted not to in the final version of the law.

Click here to read the full transcript.

Day Seven, July 23rd: Testimony from Burdened Voters Continues

The court heard from three witnesses by video deposition today regarding the difficulties they’ve experienced attempting to obtain identification. Patricia Norton’s video testimony was played first. Under examination by Law Center attorney Ben Geffen, Mrs. Norton explained that she is a great-grandmother and a lifelong resident of Berks County. She has lived in the same house in Womelsdorf for 48 years, and has voted for that entire period at the Borough Hall at the end of her block. She can get to Borough Hall to vote in person and is thus ineligible to cast an absentee ballot.

Mrs. Norton has had serious health problems since the late 1990s and very rarely travels beyond her immediate neighborhood. She has not renewed her driver’s license since the late 1990s, because she no longer can drive and has been able to use her expired driver’s license as an ID for everyday purposes. After the Voter ID law was enacted, however, Mrs. Norton began trying to get a new photo ID. The nearest PennDOT Driver License Center is a 45-minute drive away. Mrs. Norton has no family members in the area who were available to drive her there, so she requested a ride from friends in Reading, some 30 minutes away. Shortly before the November 2012 election, her friends drove to Womelsdorf, helped her into their car, drove her to PennDOT, and helped her out of the car and into the building.

Although PennDOT is supposed to provide non-driver photo IDs free of charge to people who need them for voting purposes, PennDOT personnel told Mrs. Norton that she would have to pay $13.50 for an ID. Mrs. Norton offered $13.50 in cash, but was told that she would have to pay by check or money order. To buy a money order, Mrs. Norton would have to get back in her friends’ car, ride to another location, and repeat the trip back to PennDOT. She lacked the physical stamina for such a trip and reluctantly went home empty-handed. Since then, she has been unable to return to PennDOT, as her health has worsened and as it is difficult for her to impose repeatedly on her friends for long rides.

If the Voter ID law takes full effect, Mrs. Norton will be disenfranchised. She will still be able to travel to the polling place down the street that she has frequented for 48 years, but she will be forbidden to cast a ballot, because PennDOT has made it too difficult for her to obtain a photo ID. Click here to watch Mrs. Norton’s video testimony.

Susan Carty, president of the Pennsylvania League of Women Voters testified next under direct examination by Marian Schneider, an attorney for the Advancement Project, and cross examination by Kevin Schmidt for the respondents. The League of Women Voters is one of the plaintiffs in this case. Ms. Carty talked about the extraordinary volume of calls the League received—primarily in local chapters, but also to their state-wide hotline—on election day regarding the identification requirements. She also testified to the fact that the League has expended a great deal of additional effort and time educating voters about the new ID requirements, and that information about the new law, even at her local library, was difficult to find and less than comprehensive.

The petitioners also called Nadine Marsh to testify by video deposition. Last summer, Ms. Marsh had no photo identification at all, having never had a license and in fact, never driven. During July and into the fall, her family spent a great deal of time helping her obtain an ID. Her granddaughter emailed the state three times, receiving a response only after the third communication. She then checked the PennDOT website for the times when the nearest office, an hour away, was open.

Ms. Marsh was driven by her daughter to PennDOT on a Monday. There, they were told the office that handled IDs was closed on Mondays, a fact neither she nor her granddaughter was able to find on the website. Ms. Marsh lives 20 minutes away from the nearest public transportation, and so to return to PennDOT she needed a ride.

The next day, Ms. Marsh tried again to obtain an ID. Her trip involved her daughter taking off from work, nearly two hours of driving, and an hour and a half wait just to speak to someone at the office.  Finally, she spoke to a number of employees who all claimed to have no idea what she was talking about when she asked for a “voter’s ID.” Ms. Marsh filled out some paperwork detailing her request and was sent home. Again she left without an ID, or even an explanation.

On September 24th, Ms. Marsh finally received a letter from Penn DOT, which instructed her to return to their offices and get an ID. By October 2, she was able to get her identification—but only with the help and persistence of her family. Click here to watch Ms. Marsh’s video testimony.

The court also heard from a third witness by video today. During her testimony, Catherine Howell described how voting, and particularly voting in person, is important to her. She cast her first vote for Harry Truman, and has voted ever since.

Mrs. Howell was diagnosed with Parkinson’s disease four years ago, and she uses a wheelchair when she leaves her apartment and a scooter or walker at home. When using her wheelchair, she needs someone to push her, and in vehicles without a lift she needs help getting in and out of the car. Although she lives close to her five children, twelve grandchildren, and great-grandchild, it is not always easy for her to find a ride.

Mrs. Howell’s polling place is only two blocks from her apartment, and her son and daughter-in-law usually take her as it is their polling place as well. The polling place is wheelchair accessible, and she has no difficulty using the machine. There is no need for her to vote by absentee ballot as she is fully able to continue voting in person as she has in almost every election since 1948. Mrs. Howell has a driver’s license and passport, both of which are expired. She has no other ID with a picture on it. Mrs. Howell testified that she feels it is important to continue voting, but that she has no idea where to go to obtain a new photo ID. She gets all of her news from television and local newspapers, and said that she has not encountered any information about how to obtain identification to vote. Although Mrs. Howell’s family is able to bring her to her polling place and for occasional trips, she testified that everyone has jobs, and so it is difficult to arrange a trip during the week. Click here to watch Mrs. Howell’s video testimony.

Click here to read the full transcript from July 23rd.

Day Eight, July 24th: Commonwealth Calls First Two Witnesses

The eighth day of the voter ID trial began today with the commonwealth calling its first two witnesses.

The state’s first witness was Kelly O’Donnell, an employee with the Department of Aging.  Part of the Department of Aging’s responsibility is to coordinate services that promote independence among people 60 years old and above by providing help with things like protection services and prescription drug assistance. Ms. O’Donnell testified that there are an estimated 2.7 million Pennsylvanian citizens 60 years old and above.  While a large number of those 2.7 million live independent lives without reliance on senior care facilities, a sizeable portion depends on “adult daycare,” or long-term nursing facilities, for assistance.

In her testimony, Ms. O’Donnell talked about how the Department of Aging regularly works with AAA, senior facilities and the Department of State to disseminate information and resources and coordinate transportation for senior citizens. Through partnerships with AAA and the Department of State, Ms. O’Donnell claimed that information on the new voter ID law was disseminated to seniors. She specifically noted that an email containing information on the new law, and subsequent instructions on acquiring ID, was sent out to 750,000 seniors.  The state’s examination of Ms. O’Donnell was focused on introducing evidence that information on the voter ID law was made readily available to senior citizens.

In the cross-examination, our legal team drew out information about how the instructions in the mass emails sent to seniors were flawed. In the newsletter referenced by Ms. O’Donnell, the Department of State instructed citizens that they could acquire ID either at a Driver’s License Center or at a Photo ID Center.  In reality, one can only acquire ID at Driver’s License Center.

After proving that incorrect information was widespread, the petitioners pointed out further flaws in the state’s claims.  Through the cross-examination it came out that senior care facilities do not provide identification, and as such, transportation is needed for citizens to get to a PennDOT location. The catch-22 of this situation is that senior citizens need identification to register for a seat on transportation, so many seniors may not have been able to get to PennDOT even when transportation was provided. This problem was identified by the Department of State, but no “creative service” to transport seniors to PennDOT has been documented.

Kicking off the afternoon, the state called a second witness: Mr. Meyers, a deputy secretary at PennDOT who is in charge of issuing IDs.  He testified that 9.8 million IDs have been issued to citizens in the commonwealth.  8.8 million are driver’s licenses and one million are other forms of secure state ID.  Mr. Meyers noted that licenses have become more than just an indication of one’s proficiency behind the wheel; they are a universal form of identification required everywhere from the airport to the doctor’s office.  He noted that the notion of promoting the sanctity of a secure form of ID explains why the process of acquiring proper identification is so stringent.

Mr. Keating, deputy attorney general for the state, asked Mr. Meyers why there were no PennDOT centers in nine Pennsylvania counties. Mr. Meyers responded that PennDOT centers are based on population dispersion and not on county lines.  Mr. Meyers did not offer much information on how people who live in counties without a registered PennDOT office, and sometimes without public transportation, are able to efficiently acquire ID.

During his examination of Mr. Meyers, Mr. Keating raised the issue of the 144 people who applied for identification but did not receive ID until after the November 2012 election. He refuted this evidence but did not provide any counter evidence.

Jennifer Clarke, the Law Center’s executive director, began her cross-examination of Mr. Meyers with a question regarding these 144 individuals. The state immediately requested confidentiality in proceeding further with the questioning of Mr. Meyers.  The court granted this request and the rest of the cross-examination regarding those 144 voters was held behind closed doors.  When the court marshal allowed the general audience back into the courtroom, Ms. Clarke noted that nine counties still don’t have a PennDOT office, while thirteen counties have PennDOT offices open one day-a-week, and ten have offices open only twice a week.  Ms. Clarke stressed that with such limited access, it is indeed a burden for citizens to acquire a photo ID to vote.

Ms. Clarke drew out two more points to close her cross-examination of Mr. Meyers.  First, she emphasized that certain PennDOT offices in Philadelphia (particularly the Arch street and Columbus Boulevard locations) had extremely long average wait times.  Statistics show that during the summer of 2012, well under 50% of persons were served in less than 30 minutes at their respective PennDOT locations.  Second, Ms. Clarke noted that PennDOT employees are not instructed to ask people if they would like to obtain identification appropriate for voting under the new law and this lack of information can cause significant confusion.  Some citizens who go to PennDOT to get identification for voting wind up spending $13.50 on a multipurpose ID, when in reality they only wanted the Department of State voting ID, which is free.

The day wrapped up with Judge McGinley rejecting a motion for discovery by the petitioners and subsequent motion to strike Mr. Meyers’ testimony.  Judge McGinley did grant the petitioners request to keep cross-examination open.

Click here to read the full transcript.

Day Nine, July 25th: The State’s Statistician

The ninth day of trial began with Alicia Hickok’s examination of the commonwealth’s expert witness, statistician Dr. William Wecker of William E. Wecker Associates, Inc. In his testimony, Dr. Wecker described a report he submitted challenging Dr. Bernard Siskin’s study of Pennsylvania voters lacking acceptable ID. That study, which matched a database of registered voters (SURE) with the PennDOT and Department of State databases to generate a list of over 500,000 registered voters without a PennDOT or Department of State ID, concluded that there are hundreds of thousands of Pennsylvania voters who do not have the identification required to vote in the next election under Act 18. Dr. Wecker outlined several of the issues he raised in his report. First, he claimed that the process of matching the databases was inherently flawed, because the databases “weren’t designed to be matched in the first place.” In some cases, a match might be missed because of missing or redacted information in one of the databases. Names that do not fit the databases’ inflexible first-middle-last format, such as names of Asian origin or names with two surnames, might be input differently from database to database, and would thus not be matched by Dr. Siskin’s matching algorithm. Incorrect birthdates on driver’s license paperwork, which Dr. Wecker characterized as occurring commonly, would defeat the algorithm as well in his view.

Dr. Wecker claimed to have found that of the non-matches Dr. Siskin identified, thousands are accidental duplicates or even triplicates, and even more represent voters who have since died or moved out of state. Furthermore, even the true non-matches do not necessarily represent voters in need of an ID, because so many could be either eligible to vote absentee, or in possession of other valid ID, such as school, care facility, military ID, or passports.

In his report, Dr. Wecker attempted to determine exactly how many of Dr. Siskin’s non-matches were likely to have any of these alternate forms of ID. By drawing circles of varying sizes around hotspots such as universities, nursing homes, and military bases, and cross-referencing the residents in these areas with Dr. Siskin’s list (a method he acknowledged as extremely rudimentary and inexact) Dr. Wecker developed an estimate in the tens of thousands.

Dr. Wecker concluded that non-match and other issues are merely the tip of the iceberg, and Dr. Siskin’s study has numerous limitations that render it essentially baseless. By extension, he noted that the estimate of the demographics of voters without identification is baseless as well. While Dr. Wecker acknowledged Dr. Siskin’s efforts to whittle down his initial list of 511,000 by manually verifying the accuracy of a sample, he doubted these efforts were anywhere near sufficient to account for the study’s enormous margin of error.

Michael Rubin of Arnold & Porter LLP began the cross-examination by informing Dr. Wecker that the Department of State itself has estimated one percent of Pennsylvania voters lack acceptable ID, and that various other sources have placed this percentage even higher. In fact, Mr. Rubin called Dr. Siskin’s estimation of “hundreds of thousands” conservative, as it does not account for the various factors that artificially deflate the figure, including the many voters in the PennDOT database who have expired IDs. He then went on to address individually the arguments made by Dr. Wecker in his report and testimony.

Mr. Rubin first refuted the report’s claim that 17,000 of the non-matches on Dr. Siskin’s list are deceased. The SURE database differentiates deceased voters from inactive voters, which allowed Dr. Siskin to eliminate them from his count. In response to the argument that Dr. Siskin did not account for the voters who recently moved out of state, Mr. Rubin pointed out that Dr. Siskin also did not account for the voters who recently moved into the state and are still not in the database, all of whom are just as likely if not more likely to lack ID than the ones who moved out. The issue of duplicates similarly cancels itself out, as duplicate entries can incorrectly deflate the estimate of ID-less voters just as easily as inflate it. ID-less voters with the same name and birthdate as a voter who has an ID would have been erroneously excluded from Dr. Siskin’s list of non-matches.

Mr. Rubin took most issue with Dr. Wecker’s method of identifying voters with identification that is not from PennDOT or the Department of State. Many of the institutions Dr. Wecker used as starting points in fact do not issue acceptable ID, including Penn State University and 79 other Pennsylvania institutions of higher learning. In addition, the circles Dr. Wecker drew around the institutions were often simply too large, capturing thousands of ID-less voters not affiliated with the institution. Mr. Rubin demonstrated that Dr. Wecker had applied this mistake to every category of institution, but his analysis of colleges and universities stood out. Because Philadelphia and Pittsburgh are home to so many colleges and universities, Dr. Wecker essentially ended up drawing a giant circle around both cities and claiming that every ID-less 18-28 year-old voter inside (a total of more than 48,000) has access to a school ID, and should thus not be included on Siskin’s list. Mr. Rubin noted that much of these two areas, such as the surroundings of Temple and Duquesne University, have high rates of poverty, making this assertion all the more ridiculous.

Next, Mr. Rubin tackled the report’s claim that more than 2,500 of Dr. Siskin’s non-matches are incarcerated, and thus currently ineligible to vote. Mr. Rubin revealed that Dr. Wecker had included in his figure of 2,500 all of the non-matches living in (or in the few blocks surrounding) not only prisons but also several halfway houses.

When Ms. Hickok returned for rebuttal, Dr. Wecker reiterated the roughness of his analysis, and that it was only meant as a starting point. Ms. Hickok also pointed out that many institutions not currently issuing acceptable ID may soon begin to do so.

The day came to a close as Ms. Hickok began to examine the commonwealth’s next witness, Jonathan Marks, Commissioner for the Bureau of Commissions, Elections, and Legislation.

Click here to read the day’s full transcript.

Day Ten, July 30th: Even as Trial Begins to Wrap Up, “Exceptions” Controversy Remains

Today the voter ID trial headed into its third week as the respondents picked up where they left off last Thursday. The state continued to examine Jonathan Marks, Commissioner for the Bureau of Commissions, Elections, and Legislation. In his position, Mr. Marks oversees elections, voter registration, and the SURE system, among other tasks. This is the second time Mr. Marks has testified during this trial. He also testified during the trial for a preliminary injunction last summer.

Here’s a brief overview of how Mr. Marks’ testimony began last Thursday: Mr. Marks discussed the SURE database, which has been used and referenced throughout the trial to determine the number of registered voters who may not have PennDOT identification. Mr. Marks was also briefly asked to talk about the differences between absentee and alternative ballots, the instructions his office has provided to county election offices, and the Help America Vote Act (HAVA) verification process. To read the beginning of his testimony from Thursday, click here.

Alicia Hickok continued the examination for the respondents. She questioned Mr. Marks about a number of identifiers in the SURE database and other eligibility requirements, including those for permanent absentee voters and felons. Ms. Hickok also continued to question Mr. Marks about the instructions given to poll workers and county officials. Mr. Marks noted that poll workers, county officials and PennDOT employees received additional materials and instructions because of the new law.

Ms. Hickcok moved on to ask Mr. Marks about the “exceptions” to the Department of State ID (DOS ID), which have been an ongoing controversy in this trial. “Exceptions” refers to individuals who went to PennDOT to obtain a DOS ID but left without identification because their information had to be crosschecked or verified. Mr. Marks noted that the number of folks who are considered “exceptions” has decreased.  Throughout the day, the petitioner’s still worked to shed light on the 615 exceptions listed on a DOS spreadsheet including the 144 voters who did not receive identification when they originally applied for the DOS ID.

Vic Walczak of the ACLU cross-examined Mr. Marks. Mr. Walczak began the cross by asking Mr. Marks about counties that do not have PennDOT locations and the limited operating schedules of some Driver’s License and Photo ID Centers. The court again heard through this testimony that while there are 9,300 polling places across the state, there are only 71 Driver’s License Centers.

Mr. Walczak pointed out that in the county where Mr. Marks currently lives, there are 32 polling places but no PennDOT Driver’s License Center. Using MapQuest directions and searches done on the PennDOT website, Mr. Walczak estimated how long it might take Mr. Marks to get to the nearest PennDOT location from both his current home and from his previous residence. One option took more than 30 minutes while another nearby PennDOT location was estimated to be more than 50 minutes away by car. Both nearby PennDOT locations had very limited hours, with one only being open one day a week. It was made clear through this testimony that Mr. Marks himself could face a heavy burden in getting to a PennDOT location. When asked about his polling place Mr. Marks noted that it is one city block away from his home.

Mr. Marks was also asked about identification provided by colleges and universities and care facilities. Throughout this trial, the state has continually noted that institutions of higher learning and care facilities (including personal care facilities, assisted living facilities and long-term care facilities) provide identification to their residents that may be used for voting purposes. Mr. Marks testified that a number of well-attended, well-known universities do not supply appropriate identification and there is no definitive list that tracks which, if any, personal care facilities are supplying appropriate identification.

Mr. Walczak then asked Mr. Marks about the increased strain presidential elections place on getting voters registered. Mr. Marks testified that there tends to be greater interest, and therefore more voter registration applications submitted, before a presidential election. Through this questioning, it was made clear that in the time leading up to a presidential election, many counties are burdened by this increased number of applications, and they may not be able to ensure that the data drawn from these applications is made available to PennDOT quickly enough to allow voters to request a DOS ID without becoming an “exception” in time for an election.

Megan Sweeney, Special Assistant to the Secretary of the Commonwealth, was called to the stand in the afternoon. She was placed in charge of overseeing a project plan for voter ID that included conducting educational outreach about Act 18. The state’s examination reviewed the types of events and materials Ms. Sweeney used in her outreach plan. During the cross examination it became clear that in spite of the work Ms. Sweeney testified about in the examination, there were a number of holes and factual issues in the state’s outreach. Ms. Sweeney noted that some of the materials she used were not not changed after the free DOS ID became available, nor did she revoke materials that were sent out that contained pre-injunction language.  Her testimony during the cross examination showed that even as of April of 2013 she was getting questions from people about whether or not they were able to use their driver’s license to vote – showing that the state’s education campaign still has not proved effective.

At the end of the day, the respondents noted that they had no additional witnesses to call. The petitioners chose to call one final witness, Bryan Niederberger from BLDS, LLC, to statistically analyze the 615 exceptions noted last week and in Mr. Marks’ testimony. The state requested that Mr. Niederberger’s testimony be conducted in confidence. Though the petitioners objected, noting that no confidential voter information would be discussed, Judge McGinley granted this request.

Tomorrow the state will have a chance to cross-examine Mr. Niederberger. This cross examination may again be conducted in a closed courtroom. Both sides are then expected to make closing statements.

Read the full transcript here.

Day 11, July 31st: Both Sides Rest, Closing Arguments Postponed

As the trial headed into its eleventh day today, the courtroom remained closed to the public as the state cross-examined the petitioners’ rebuttal witness, Bryan Niederberger from BLDS, LLC. Mr. Niederberger was first called yesterday as a witness for the petitioners to testify about his analysis of the data on voters who applied for the free Department of State ID (DOS ID), but for a variety of reasons, did not receive the identification.

Judge McGinley first closed the court yesterday afternoon at the request of the state over concerns that Mr. Niederberger’s testimony would include confidential information on voters.

During his testimony Mr. Niederberger led the courtroom through Petitioners’ Exhibit 2136. Click here to take a look at the public, redacted version of this exhibit. This exhibit shows the analysis of voters who did not receive DOS ID and are listed as “exceptions” on a Department of State spreadsheet.

The state has argued throughout this case that it has greatly lessened the burden on voters by creating the DOS ID, which is theoretically free and can be obtained without showing substantiating documentation like a birth certificate. (Individuals still have to travel to a PennDOT location to get this form of ID, which can be extremely difficult for many individuals, including those who live in rural areas where there is no nearby PennDOT location, the elderly, the disabled, those without a car or access to public transit, and many others.)

In spite of this claim, the analysis laid out in Exhibit 2136 shows that the state’s “streamlined” process does little to ensure that all voters are able to obtain identification. Even the most conservative estimates show that a significant number of voters did not receive the DOS ID when they went to PennDOT to apply for it. Some voters still have yet to receive the DOS ID. Others were mailed the DOS ID but did not receive it in time to use during the November 2012 presidential election. Even voters who were already registered before they went to PennDOT to get a DOS ID were turned away because their information could not be verified in the state’s SURE database, which is supposed to house comprehensive data on all registered voters. Had the preliminary injunction not been in effect, many of these voters might have been disenfranchised in spite of their attempts to get to a PennDOT location and obtain identification.

Following the cross-examination, the court temporarily recessed as the petitioners and respondents conferred about resting the case. When the court convened shortly thereafter, Tim Keating spoke on behalf of the state and noted that they were ready to rest their case. Michael Rubin of Arnold & Porter LLP concurred that the petitioners would also rest their case.

The state then filed a motion to dismiss the case, in part claiming the plaintiffs in the case, such as the Homeless Advocacy Project and NAACP, no longer have standing to bring this suit. Jennifer Clarke, the Law Center’s executive director, called this move, “perfunctory” and expected.

Judge McGinley recessed court for the day and called for closing arguments tomorrow, Thursday, August 1st at 10:00 a.m. Petitioners will have 45 minutes for closing arguments and 15 minutes for rebuttal. Respondents will have 60 minutes to make their closing argument.

Day 12, August 1st: Trail Comes to a Close

After two and a half weeks the trial over Pennsylvania’s voter ID law came to an end today as the court heard closing arguments from Jennifer Clarke, the Law Center’s executive director, and Alicia Hickok of Drinker, Biddle & Reath LLP. During closing arguments, Judge McGinley thanked both sides for their hard work throughout the trial.

In an unexpected move today, attorneys for the state said they would be willing to extend the preliminary injunction of the voter ID law through the November election. Both sides are continuing to carry out that conversation before a decision is finalized by the court as the petitioners work to ensure that voters do not have to deal with being asked, but not required, to show identification at the next election. When the preliminary injunction was  previously extended, the court allowed the state to continue that practice, which caused significant confusion for voters.

Ms. Clarke opened the petitioners’ closing argument against the voter ID law saying the law, “unreasonably and unnecessarily burdens the right of Pennsylvanians to vote.” She reminded the court and those gathered in the courtroom that this case is about hundreds of thousands of real people, including Marian Baker, Patricia Norton and others who have been called to testify since the trial began on July 15th. And she argued that the law is both inherently unconstitutional as well as unconstitutional in the way it has been, and could be, implemented.

Article 1, Section 5 of the Constitution of the Commonwealth of Pennsylvania states: “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Ms. Clarke argued that neither the government’s nor the Pennsylvania General Assembly’s interests have the right to outweigh or over burden the individual right each voter is entitled under the state constitution.

Ms. Clarke argued that Act 18 is unconstitutional on its face because of a number of “fundamental and foundational” issues.

  • The law states that PennDOT-issued identification is a last-resort form of identification for voting. At the same time the law requires all people to go to a PennDOT location to obtain compliant identification.
  • The law does not guarantee that the state must provide a free form of identification. Throughout the trial, the state has claimed that the free Department of State (DOS) ID alleviates many of the burdens placed on voters by getting rid of a fee and by allowing voters to apply for ID without producing a birth certificate or other substantiating documentation. Ms. Clarke noted that the DOS ID is fully discretionary and there is no guarantee in the statute that this identification will always be available or that it will go unchallenged by elected officials.
  • Act 18 contains the strictest, narrowest list of acceptable IDs of any voter ID law in the country, requiring expiration dates, which are not always available on student or veteran identification cards, and excluding identification provided by school districts, some municipalities or private employers.
  • The law provides no safety net. If a voter does not have ID she cannot cast a ballot and sign an affirmation of who she is, nor can she just submit an absentee ballot as Pennsylvania has extremely strict rules for voting absentee.

Ms. Clarke’s argument also focused on how the law is unconstitutional “as applied,” meaning as it has been implemented. The state’s educational campaign continues to fail to send clear instructions or appropriate messaging, there’s no ride-sharing program to help people get to PennDOT as the state once claimed, and hundreds of people who have tried to apply for the DOS ID have failed to actually receive that identification.

Throughout this case, the state and a number of expert witnesses have conducted analyses of the number of voters who do not currently have appropriate identification to vote under Act 18. Although the numbers have waxed and waned based on different methodologies and opinions, Ms. Clarke argued that the record and evidence have continued to show that no matter which expert or analysis you subscribe to, the variation does not deny one fact: every analysis shows that hundreds of thousands of voters stand to lose their ability to vote if the law moves forward.

And the state’s attempts to make identification more available have proved to be minimally effective at best with just over 16,000 individuals, out of hundreds of thousands, obtaining identification since last summer.

Alicia Hickok’s closing arguments opened with the claim that the General Assembly takes its responsibilities very seriously and implemented Act 18 in an effort to uphold the integrity of Pennsylvania’s election system. She noted that the state has worked to identify vulnerable populations who would have a hard time getting identification, such as senior citizens, and has tried to ensure these groups have access to identification. She argued that the analyses of the SURE database of voter registration information have been done incorrectly and do not prove that there is a large gap of voters who cannot get identification. She also refuted Ms. Clarke’s claim that the DOS ID is truly discretionary, saying the state would only get rid of the DOS ID if another form of identification was created.

A portion of Ms. Hickok’s argument focused on how the Supreme Court decision inCrawford v. Marion County Board of Elections should be applied in this case. She argued that the petitioners in this case, as in Crawford, were unable to establish enough accurate evidence in the record to bring a constitutional challenge against the voter ID law.

During her rebuttal, Ms. Clarke noted that Crawford v. Marion County Board of Elections has very little to do with Pennsylvania’s voter ID trial. The challenge presented in Crawford was brought against the United States Constitution, which does not have an express provision for voting. This case brings a challenge under Pennsylvania’s state constitution, which does in fact provide express protections for voters. Furthermore, Ms. Clarke argued, the petitioners have established significant evidence in this case, from calling witnesses who have been unable to get identification to gathering statistical and expert analyses.

Ms. Clarke urged the court to weigh the burden the voter ID law places on voters against the justification for implementing the law, arguing that there is no justification for this law. There is no evidence of voter fraud, and there is no need to create a tool to “deter and detect voter fraud” when such fraud is non-existent. The state has conceded that it does not have evidence of voter fraud.

Both sides will now submit post-trial briefs to the court. Judge McGinley is set to make a decision on the preliminary injunction no later than August 19th. It is not yet known when he will make a decision on either the state’s request to dismiss the case or on the case in its entirety.