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.