Voter ID Trial Take Two: Afternoon of 9-27-12

 Judge Simpson asks both sides what a “tailored injunction” would look like

This afternoon the Commonwealth brought back two of its witnesses from Tuesday to rebut the testimony of the petitioners’ morning witnesses.

Jonathan Marks, Commissioner for the Department of State's Bureau of Commissions, Elections and Legislation, testified that data from voter registration forms is handled at the county level, and county workers do not always follow protocol for data entry. The result are problems such as Lakeisha Pannell experienced, where she did not show up as a registered voter because her name had been entered with a space between the “La” and “keisha.”

Under cross-examination, Marks admitted that voter registrations, particularly those collected in third party registration drives, can take four or five weeks to appear in the state’s system, known as the SURE database. That leaves very little time for a voter who registered close to the Oct. 9 registration deadline to show up in the database and thus be able to obtain a Dept. of State (DOS) “for voting only” ID.  The Dept. of State will not mail the voter their DOS ID until they show up in the database. (See the blog post from 9-25-12 for more about the new DOS ID process for people who have a problem with their registration status.)

The next witness to be recalled was Kurt Myers, Deputy Secretary of PennDOT.  He stated that under the voter ID law, PennDOT could not issue a free ID to anyone who had a PennDOT ID that was expired less than a year - even if it would be expired over a year by Election Day. “The law doesn’t allow for flexibility,” he said.

He also testified that anyone who loses their PennDOT ID or has it stolen can either have it replaced for $13.50 or get the DOS ID free of charge.

Under cross-examination, Mr. Myers reviewed the figures for PennDOT’s response time. Several PennDOT locations have seen a dramatic increase in the number of customers who had to wait over 30 minutes (the metric PennDOT uses) when comparing August 2010, 2011, and 2012. Myers noted there could be other reasons than just the voter ID law that would account for those changes.

Mr. Myers was also asked about the confusion for voters in making the distinction between a PennDOT Driver License Center and a PennDOT Photo Center Voting IDs. Both the secure PennDOT ID and the new DOS ID are only available at a Driver License Center. (Several witnesses mentioned going to the wrong PennDOT office to get their voter ID.) When asked if this might cause problems for voters, Mr. Myers said that it was a “shared responsibility” on the part of the customer as well as PennDOT to know the rules.

Following testimony from the two state’s witnesses, Mr. Walczak made a motion that all evidence and testimony about the new guidelines for the DOS ID be stricken and excluded from the record, as the petitioners had served a request for production of documents on the evening of Sept. 18 that asked for “all procedures used to deploy the DOS cards” and specifically asked for amendments to the procedures. Despite the request, the new DOS guidelines were not turned over to petitioners until 5 p.m. the evening before trial. The documents were only turned over at all because the petitioners noted one sentence in the Commonwealth’s brief that stated the “exhaustion requirement” for the DOS ID was no longer in place and asked about the change.

In light of the fact that the individuals on the petitioners’ supplemental witness list were not allowed to testify as they came in past the Monday noon deadline, Mr. Walczak argued, it was unfair to hold the Commonwealth to a different standard.

Judge Simpson declined the motion, stating that petitioners had effectively waived the objection because the evidence was produced in response to their question, but noted, “I know that both of you have some hard feelings about this. I get it.”  He went on to say that he wasn’t sure how valuable the testimony about the new ID guidelines would be in any case, as it would require him to use predictive judgment about the effectiveness of the new IDs – something the Pennsylvania Supreme Court already criticized in its previous ruling.

Mr.Walczak then began his closing, noting that the Pennsylvania Supreme Court said the lower court (Judge Simpson) was “obliged to enter a preliminary injunction” unless the cards “comport with the requirement of liberal access” AND  the court is convinced that there will be “no voter disenfranchisement for purposes of the upcoming election.” He said that education would not be the cure, as none of the ads in the state’s $5 million voter ID education campaign provide information about the DOS ID, and that money has all been spent. And the state’s new guidelines for the DOS IDs were also not a fix for the problem. “For this Court to approve and allow this law to continue based on the changes that the Commonwealth announced on Tuesday would be to repeat what happened the last time,” he said.

Judge Simpson interrupted Mr. Walczak’s closing to ask what a “tailored injunction” might look like. He asked, “Is there something that’s not all or nothing?” and “Are there any parts that can be preserved?” He speculated about procedures in other states, such as issuing provisional ballots that can be used for voters without ID but eliminating the requirement that they provide ID in the 6 days following the election for those ballots to count, or continuing to ask people for ID when they vote but not turning them away if they didn’t have acceptable ID.  

Judge Simpson did acknowledge the potential pitfalls of having so many people vote provisionally and that the system might not be able to handle it. He also expressed concern and surprise that the number of people who have obtained voter ID was so low (roughly 10,000 voter IDs have been issued since the law was passed) and said that even assuming only 1% of registered voters do not have ID, only a fraction of those have since gotten ID.

Ms. Alicia Hickok gave the closing for the Commonwealth. She stated that what the court heard today was “was not so much about people who couldn't get IDs, it was about people who were resentful of the process that it took them to get IDs.” She later added, “They were frustrated. But frustration is a part of everyday life.” She said she was similarly frustrated when she was put on hold by a customer service representative.

Ms. Hickok stated that state officials have “sacrificed themselves,” working overtime and weekends to ensure that getting IDs is a “seamless process.” “That commitment has been there,” she said.

Judge Simpson left both sides with instructions to include ideas for a tailored injunction in their post-hearing materials, which must be filed by 4:30 p.m. on Friday. The judge must issue a ruling by Oct. 2, as ordered by the Pennsylvania Supreme Court. 

Voter ID Trial Take Two: Morning of 9-27-12

Voters testify about the holes in the “safety net,” aka the Dept. of State ID card (version 1.0)

Tensions ran high on the final day of the second voter ID trial as the cumulative stress and exhaustion from multiple trials in quick succession took its toll. The morning began with a dispute over a supplemental witness list the petitioners’ had submitted after the judge’s deadline of this past Monday at noon. The Commonwealth objected to the inclusion of these witnesses, and Judge Robert Simpson sustained the objection. As a result, two witnesses who had come from out of town – including Philadelphia City Commissioner Stephanie Singer--were in court but not allowed to testify.

ACLU Legal Director Vic Walczak pointed out what he described as a double-standard, as the Commonwealth did not provide petitioners with information about the existence of new guidelines for the Dept. of State ID until 4:58 p.m. the day before the trial – despite the fact that the state’s witnesses testified that they had begun work on the new guidelines soon after the Pennsylvania Supreme Court issued its opinion on Sept. 18. Judge Simpson conceded that that conduct had “invited a certain amount of tension.”

Judge Simpson also gave what he described as a “pep talk” to the attorneys, stating he was concerned by conduct of counsel on both sides and asked them to “stand calm and stand tall” for the remainder of the trial. He noted he had “other tools in his toolbox that you [the lawyers] haven’t seen yet” and he would handle matters in another way if he had to.

The morning’s testimony was led off by Doris Clark, a 68-year-old African-American woman from Philadelphia. She made three trips over the summer to PennDOT to get ID in addition to a visit to the Department of Vital Records to get her birth certificate and another excursion to get a copy of her husband’s death certificate (needed to connect the name on her birth certificate with her married name). On her third trip to PennDOT on August 28, she was told her June 2012 letter from the Social Security Administration (which she was told could be used as a substitute for a Social Security card) was too old to use and she would have to get a new one. Fed up, she said, “I hollered ‘I’m handicapped, I’ve done all I can do, and I’m not going to vote. I’m going out there and tell people how you are treating people.’” She was then offered and received the Dept. of State (DOS) ID.

Following Ms. Clark was Lakeisha Pannell, a 35-year-old African-American woman. She took her 2-year-old with her on trips to obtain copies of two utility bills to use as proofs of residency. Lacking a raised-seal birth certificate, she applied for the DOS “for voting only” ID but was initially rejected because her voter registration could not be confirmed. After two four-hour trips to PennDOT with her young son in tow, she finally received her voter ID card after it turned out that her  name in the voter file was spelled “La Keisha” instead of “Lakeisha.”

Another voter who shared her problems obtaining ID from PennDOT was Jessica Hockenbury, a 19-year-old white woman from Pittsburgh. Although she had a raised-seal birth certificate and Social Security card, she only possessed one proof of residency (her pay stub) as she lives with her boyfriend and has no bills in her name. She was denied an ID. An organizer from One Pittsburgh, Alice Thompson, was outside PennDOT and offered to help Ms. Hockenbury get her ID. The pair returned to the center a few days later and asked for a residency verification form, which can be signed by the person an individual lives with as a proof of address. The PennDOT employee was unaware of the form and after speaking with another employee, gave the women the wrong form. When they asked to apply for the free “for voting only ID,” they were told by a PennDOT employee that “we’re not doing those anymore.”

Later that day, having printed out the correct form from PennDOT’s website and gotten it signed by Ms.Hockenbury’s boyfriend, the pair returned to the PennDOT office. The employee who took the application said he had not seen the affidavit form before. On her third trip, Ms. Hockenbury was finally issued a DOS ID.  

Another Philadelphia woman, Slava Lipowicz, took the stand to testify about the difficulties in getting her 87-year-old mother, who relies on a wheelchair, to PennDOT. Her mother is a naturalized American citizen born in the Ukraine who spent time under Nazi rule in Germany. Because of her background, her mother treasures her right to vote, said Ms. Lipowicz, and every Thanksgiving she gives thanks that she lives in the “best country in the world” and sings God Bless America. (Ed. note - I swear I am not making this up.)

Preston Cobb, a 52-year-old African-American man with cerebral palsy who also relies on a wheelchair, testified about his 3-hour excursion to the Media PennDOT. His non-driver PennDOT ID expired October 21, 2011 – which means it would not be valid for voting as it would be expired over a year on Nov. 6. Under the law, a PennDOT ID needed for voting is free. However, PennDOT’s policy is to charge people with IDs that are not yet expired a year – even if they will be expired over a year on Election Day. Mr. Cobb, who lives in low-income housing, was not allowed to apply for a DOS ID and instead was told to pay the $13.50 or come back in November to get the free ID.  

Several Service Employees International Union (SEIU) staff members also testified about their repeated trips to various PennDOT locations across the state and the problems they had witnessed, ranging from clerks who were unfamiliar with the DOS ID procedures to a lack of voter ID-related forms and signs in some centers.

The court then took a break for lunch.

A grand bargain on revising the Wiretap Act

I realize using the phrase "grand bargain" could be perceived as a sign of imminent doom (thank you, John Boehner and Barack Obama), but in this case, it actually fits. Yesterday the Pennsylvania Senate Judiciary Committee passed an amendment to a bill to revise the state Wiretap Act, and the amendment properly balances Pennsylvanians' right to privacy with the government's need to conduct surveillance. We arrived at this point because the ACLU of Pennsylvania worked with legislators, legislative staff, and other stakeholders, including the Pennsylvania District Attorneys Association, over the summer to find a middle path to getting this done.

When House Bill 2400 moved through the House in the spring, the ACLU of PA was in the middle of the opposition. The bill makes more than a dozen changes to the Wiretap Act, the state law that governs how law enforcement conducts surveillance and how citizens can and cannot record. We always said that we were fine with about half of the bill but had problems with several provisions. We rang the alarm bells and told the government to back off. See here, here, here, here, and here.

The bill passed the state House in June but with an intriguing, bipartisan mix of representatives voting no, 52 in total. If you follow state politics, you may find it unusual to find Republicans Daryl Metcalfe, Kathy Rapp, Gordon Denlinger, and Bryan Cutler voting with Democrats Babette Josephs, Dan Frankel, Mark Cohen, and Mike Sturla, but that's exactly what happened.

By the time the bill landed in the Senate Judiciary Committee, we had zeroed in on four outstanding issues. The amendment passed by the committee yesterday addresses all of them.

• Government use of illegal civilian wiretaps. The original bill allowed the government to use recordings made illegally by civilians, i.e. recordings of private conversations made without the consent of all parties, in its investigations and prosecutions. As one rep said on the House floor, the provision allows civilians to become wannabe detectives. The amendment deleted this provision altogether.
• Redefining "oral communication." The definition of "oral communication" controls "two-party consent" in Pennsylvania law, the principle that all parties to a private conversation must consent to being recorded. The original bill altered the definition to allow recording anywhere- school, the workplace, retail stores- as long as notice is posted somewhere or recording equipment is visible. The amendment deleted the revision and reverted the definition to current law.
• Evidence exception to two-party consent. In the original bill, anyone who thought he would collect evidence of a first-degree felony or a crime of violence could record another person without his knowledge or consent. The amendment narrows that exception by allowing it only for victims, witnesses, and private investigators (which are defined in law) and only for crimes of violence, which are listed in the bill.
• Government use of seized mobile phones. HB 2400 allowed the police to use mobile phones they've seized in some way, such as from an informant or from an arrestee. The bill provided no check on that sweeping power. The amendment added a requirement that police first receive approval from the district attorney or attorney general before using the phone. We would have preferred that the approval come from a court, but this change at least gives some oversight.

We're thrilled about the first two changes and willing to accept the latter two changes as part of the process of legislative negotiating.

So it's true. Sometimes parties with different views can come together and reach agreement. Boehner, Obama, you listening?

The ACLU of Pennsylvania only has the leverage and ability to work in this way at the state capitol because our 19,000 members support what we are doing. Not a member? Please consider becoming one today.

DOS ID 2.0: Voter ID Hearing 9-25-12

Commonwealth promises that this time they really, really mean it when they say every voter will be able to get ID           

Today’s hearing was déjà vu all over again, as the saying goes. Once again the Commonwealth produced a last-minute new ID procedure right before trial – this time literally the night before. And once again the Commonwealth asked the court to rely solely on its assurances that the new IDs would ensure that all eligible voters will get to vote in November.

The biggest news of the trial (also announced in a press release from the Dept. of State) was the revelation that the Dept. of State has revised the requirements needed to get a Dept. of State (DOS) ID “for voting only.” They have eliminated the requirement that voters must first attempt to obtain a regular secure PennDOT ID before attempting to get the DOS ID; the two proofs of residency; and the gender designation. Individuals who do not show up in the SURE database as a registered voter will still get their ID cards made and will be asked to fill out a voter registration form. The ID card and the voter registration form will then be sent to the Dept. of State, which will send the voter ID card to the individual once his or her registration has been completed.

The first witness of the day was Kurt Myers, Deputy Secretary of PennDOT, who testified to the changes in the DOS ID procedures and said that that changes were made in response to the Pennsylvania Supreme Court’s ruling that the legislature intended that there be “liberal access” to state-issued ID cards.

Myers noted that “either last night or first thing this morning” all 71 PennDOT Driver’s License Centers were notified of the new rules. He testified that this was such a “minor change” that PennDOT customer service representatives did not need training – merely to be informed of the change.

Upon questioning, he also acknowledged the PennDOT previously had a mobile unit from the mid-1990s until 2008. He said few people utilized the service and there were security issues. When petitioner’s attorney David Gersch pointed out that other states with ID laws have managed to provide secure mobile units, Myers responded that certain states “have chosen to take that risk” but Pennsylvania has not.

According to Myers, only 21 individuals have asked for refunds for being erroneously charged for their ID. He stated that it was a “shared responsibility” and that voters should “come to the centers well-prepared” in order to make sure they were not mistakenly  charged for PennDOT IDs that should be free (as required by the voter ID law).

Following the lunch break Shannon Royer, Deputy Secretary of State, took the stand. He described the state’s $5 million “Show It” education campaign about the voter ID law, including 6 million postcards, TV and radio ads, and ads in college and ethnic newspapers. Royer stated firmly that “every voter will know about this law by Election Day.”

The last person to take the stand today was Jonathan Marks, Commissioner for the Department of State's Bureau of Commissions, Elections and Legislation. He described the two-tiered process the DOS has for checking on the registration of people who apply for the DOS ID. For those who can't easily be verified, "tier 2" workers have the "luxury of time" and are able to track down reasons why voters are not showing up as registered, such typos or non-matching names.  He said that to date 113 individuals had been initially rejected for the DOS ID. In 43 of those the DOS had resolved the initial exception.  He also testified that of the roughly 760,000 letters sent out by the DOS this summer to notify voters they were on the "no-match" list of voters without valid PennDOT ID, around 145,000 were returned by the post office as undeliverable.

ACLU Legal Director Vic Walczak then read into the record the declaration of Nadine Marsh, an 84-year-old Beaver County resident and one of the original plaintiffs in the lawsuit. A Pennsylvania native, Ms. Marsh has never had a birth certificate and had a letter of rejection from PA’s Dept. of Vital Records indicating they could not find a birth record for her.

Ms. Marsh’s granddaughter emailed the Dept. of State helpline three times to ask what documentation her grandmother would need to obtain the DOS ID for voting, since Ms. Marsh lives with her daughter and has no bills in her name. After finally receiving a reply, Ms. Marsh and her granddaughter traveled the 20 miles to the nearest PennDOT License Center. Unfortunately the center was not producing IDs the day they went. The next day they again took the 20 mile trip, only to be told after spending over an hour at PennDOT that PennDOT needed to “process” her request and that she would have to come back a third time after receiving a letter from “Harrisburg.”

As of yesterday, Ms. Marsh had not received a letter, although the state stated that one was sent out recently.

As the long day of testimony came to a close, Judge Simpson perked up the crowd by announcing that he had “a responsibility to consider tailoring an injunction” and asked that both sides consider what a tailored injunction might look like and be ready to provide argument on the issue on Thursday.

The hearing will resume on Thursday, September 27, after a day off for Yom Kippur. The petitioners will be presenting testimony from a dozen or so individuals who experienced problems at PennDOT with the initial version of the DOS ID. 

VOTER ID: PA Supreme Court Vacates decision, sends case back to lower court

The PA Supreme Court issued their ruling a couple of hours ago, and the question of the day has definitely been "what does this mean?" Rather than upholding or striking down the voter ID law, the Supreme Court has vacated the lower court's ruling against an injunction, and sent the case back down to Judge Simpson.

So what does this mean? It isn't a win, but we think it's a positive development.
Firstly, the Supreme Court's instructions shift the burden of proof from our plaintiffs to the state. This is significant. Secondly, it establishes a very high standard that the state must meet in order to uphold the voter ID law - a standard that, in our opinion, the state cannot meet. In reevaluating the case, the Supreme Court has instructed Judge Simpson to focus on two questions. If the answer to either of those questions is "no," the Supreme Court says Judge Simpson is obliged to issue an injunction against the voter ID law. Those two questions, with brief explanations:

1) Does the state of Pennsylvania's implementation of the voter ID law conform to the requirements the law set forth, particularly in the state's distribution of voter ID to eligible voters?

According to Act 18, the voter ID law, PennDOT is required to issue an ID at no cost to any registered voter who signs an oath that says he or she does not have the ID they require for voting purposes. No further requirements - such as showing a birth certificate or social security card - are required. The Supreme Court calls this "a liberal access standard." In court, the state's attorneys pointed out that PenDOT cannot, according to Homeland Security requirements, comply by this requirement. Instead, the state created the Department of State ID card, a new form of voter ID specifically intended for voting purposes. 

At the time Judge Simpson heard argument, the Department of State ID was merely theoretical. State officials detailed their plans to roll out the ID, but it was not yet in existence. Now, Judge Simpson will have the opportunity to look at the reality of that ID card and its distribution, along with the state's efforts to educate and inform the public, and decide whether the liberal access standard in Act 18 is being met. We do not believe it is.

Furthermore, the Supreme Court stated in their ruling that they are not satisfied with "a mere predictive judgment based primarily on the assurances of government officials." In other words, it's no longer good enough for the state to testify about what they plan to do. They must demonstrate that what they are presently doing is enough to satisfy the requirements of Act 18.

2) Can Judge Simpson say, in his judgement, that no voters will be disenfranchised on Election Day?

In their ruling, the Supreme Court establishes as fact several points that have at various times been disputed: One, that voting is a fundamental right. This was something the state disputed in its argument. Two, that some number of eligible voters are at risk of being disenfranchised by this law. Three, that any number of disenfranchised voters represent harm to the electoral process. Their instruction to Judge Simpson is very clear, and sets a very high standard: If, in his judgement, there is doubt that voters may be disenfranchised, he is obliged to enjoin the law.

In his ruling, Judge Simpson did not hold voting to the standard of a fundamental right, and went so far as to point out that, if the standard were different, he may have ruled differently. The Supreme Court has clearly instructed him to apply a very high standard. If there is doubt, Judge Simpson must enjoin.

And is there doubt? Well, even by the State of Pennsylvania's lowest possible estimate, there are 100,000 registered voters without PennDOT ID. Our scientific figures put that at more than one million, but let's use the state's lowest estimate for the sake of argument. Since the state started giving out various forms of ID for voting purposes in March, they have distributed only 9,000 IDs. Since our trial, they have distributed roughly 6,000 - less than 1,000 per week. In order to reach the remaining 91,000 voters (again, that is a minimum estimate) PennDOT would need to increase that number to 13,000 IDs distributed per week.

The bottom line is that the burden is now on the state of Pennsylvania to show that they are meeting the ID requirements of the voter ID law, and to convince Judge Simpson that there will be no one disenfranchised by this law on Election Day. That is a very high standard, and not one we believe the government can meet.

Judge Simpson is instructed to issue a ruling on or before October 2. The Supreme Court also made clear that they are prepared to hear any further appeal to that decision, and that those rulings will also be expedited.

Can you take action to save a man's life?

Terry Williams at the age of 17.

It's been 13 years since anyone was executed in Pennsylvania. In the 1990s, three men voluntarily ended their appeals to accept death. It has been 50 years since anyone was involuntarily executed in the commonwealth. This, despite a bursting death row with more than 200 people, the fourth-largest death row in the country.

Terrance "Terry" Williams is at risk of being the first person executed against his will in Pennsylvania since John Kennedy was president.

The basic facts of Terry's case are not in dispute. In 1984, just a few months after his 18th birthday, he killed Amos Norwood in Philadelphia. Less than a year earlier, while he was still 17, Terry killed another man, Herbert Hamilton.

But there were key facts in Terry's case that the jury never heard, facts that may have convinced the jury to spare his life. Terry had been a victim of repeated sexual assault since the age of six, and his two victims had been abusing him. His trial attorney never investigated these facts, so the jury never heard them.

This case was and is a tragedy in every sense. Several jurors recently stated that they would have ruled for a life-without-parole sentence for Terry if they had known these facts. Some jurors have also said that they opted for death because they mistakenly believed that a life sentence would afford Terry a parole opportunity. Death and life-without-parole have been the only sentencing options for first degree homicide in Pennsylvania since the 1920s.

Terry's appeals options are exhausted, and his execution is scheduled for October 3. His attorneys are now asking the pardons board and Governor Corbett to commute Terry's sentence to life-without-parole. To be successful in that arena, the pardons board must first unanimously recommend a commutation. Governor Corbett must then agree and grant the commutation.

Support for commutation is strong and broad. Supporters include Norwood's widow, several jurors, 22 former prosecutors and judges, 34 law professors, 40 mental health experts, and more than three dozen faith leaders, including the Roman Catholic Archbishop of Philadelphia, Charles Chaput.

How can you help? Contact Governor Corbett directly and ask him to support clemency for Terry Williams. Sign the petition in support of clemency that currently has nearly 14,000 signatures. And learn more about the case at a website dedicated to Terry's plea for clemency.

Take action. A man's life depends on it.