Tuesday, July 31, 2012

Voter ID Day 5: "Clerical stumbling blocks"

Madeline Rawley, here with husband Bob, took it upon
herself to learn the details of voter ID - only to be rebuffed
at every step by the state government.
After Secretary Carol Aichele expressed her confidence in Pennsylvania's new voter ID requirements, a series of witnesses took the stand to share the difficulties they have experienced as a result of the law. First up was Lisa Gray of Chadds Ford, a voter since 1976 who was born in Germany to a father in military service. Ms. Gray suffers a psychological disability and as a result can neither work nor drive. She collects public benefits, and shared a residence with her mother - also her primary source of transportation - until her mother's recent death. Ms. Gray has neither a valid birth certificate, nor a social security card. Because she was born overseas, she must obtain a consular birth certificate through the US State Department, a process that will take months and cost her at least $50. Even if she had the proper documentation, with the recent death of her mother she doesn't know how she would get to PennDOT to obtain ID. She has access to Paratransit, but only for medical emergencies.

Asked why she thinks voting is important, Ms. Gray said it's "her chance to influence things that effect her as a citizen, and to make her voice heard." Asked by attorney Marian Schneider of the Advancement Project about voter ID, Ms. Gray called it an attempt to suppress the vote. "I am qualified and entitled, and other people have problems like me. We're being prevented from voting by clerical stumbling blocks."

If anyone can testify to clerical stumbling blocks, it's Madeline Rawley of Doylestown. A seven-year member of the League of Women Voters, Rawley took it upon herself to help her fellow seniors obtain the ID they need, and embarked on a months-long quest to find clear information about the state's new requirements. Rawley says voting is especially important to her, and that her mother - born in the era before American women could vote - worked as a Girl Scout on the women's suffrage movement, encouraging women to fight for their right. Rawley testified at length about the series of calls and visits she paid to the Department of State and to PennDOT, attempting to learn everything she could about the new state requirements. What she found was scattered, incomplete, and inconsistent. At one point, after a PA Department of State employee told her final information would not be available until late summer, she stated her concern about the short amount of time available for people to obtain their documentation. "That's not my fault," the official told her.

Rawley said that the League of Women Voters is eager to educate voters about what they need to cast their ballots - but they still can't get the proper information from the state. "Things just keep changing," she said.

Steve Jarrell of Chambersburg gave similar testimony. A four-year veteran of the US Air Force, Jarrell visited his local PennDOT office in July on a "dry run," to check their preparedness for questions about voter ID. Jarrell found no posters or literature available, aside from two photocopied sheets of paper tucked into a brochure rack. After waiting in line for 45 minutes after opening hours (despite arriving well before the office opened) he spoke with a PennDOT employee who told him, incorrectly, that free IDs were only available for people who had moved to Pennsylvania from out-of-state.

At least Jarrell got to speak with a PennDOT employee. Janice Horn, a librarian from Clarion County, visited her local PennDOT office only to learn that they had outsourced their ID process. Though the office was open five days a week, a PennDOT employee was on site only on Wednesdays. Asked for voter ID information, the contractor on site told her it was "not her responsibility" to provide that information, and advised her to come back on Wednesday. She did provide some information on paper, but only with a cautionary disclaimer that it wasn't really accurate.

John Jordan, Director of Civic Engagement for the Pennsylvania NAACP, spoke to the impact of voter ID on his organization. While the NAACP is a leader in voter registration and get-out-the-vote campaigns, Jordan testified that he is way behind on those efforts. Instead, his organization has been spending "30 to 50 hours a week" responding to the deluge of requests for voter ID information. "Theres a lot of confusion," Jordan testified, "owing to constant changes to the rules by the state." He said the NAACP has been forced to revise their voter ID literature five or six times, and that he still finds outdated information in circulation. For this reason, he believes, the introduction of a new ID form - yet another rule change by state authorities - will only create more confusion. Despite their investment in outreach and education, he testified that he is "not confident at all" that they can reach every registered voter before the November election.

What came through in the testimony of every witness was that, while this new law may be terrible at preventing fraud or protecting the rights of eligible voters, it is terrific at the thing it is designed for: suppressing votes. Jarrell, who has been a case worker for the Department of Public Welfare, remarked about the potential of using EBT ("food stamp") cards as valid ID. "It absolutely could be done," he said, and remarked on 2011 efforts by legislators to add photos to EBT cards to prevent fraud. When SEIU suggested photos on EBT cards so they could serve as voter ID, he says, those same legislators were opposed, citing "cost factors."

Jarrell says he's opposed to Pennsylvania's ID law, and he doesn't mince words. "It takes away your God-given right to vote as a citizen in this country." Jordan, meanwhile, bemoans the effect it's having on callers to his office. "Our education efforts are supposed to focus on issues and candidates, not on ID requirements," he said on the stand.  "But there's a lot of anger, a lot of anguish. People are registering because they're angry. They feel like they're being personally attacked."

Related: Voter ID Day 5: "There is no document."

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Voter ID Day 5: "There is no document."

Day five of argument in ACLU-PA's voter ID lawsuit began with testimony from Secretary of the Commonwealth Carol Aichele, who expressed confidence in the new law, and concluded with a series of witnesses who called that confidence into question. Most testimony related to the Commonwealth of Pennsylvania's efforts (past, present, and future) to educate and accommodate the state's roughly 8 million eligible voters.

Aichele's demeanor was defiant under questioning from Arnold and Porter attorney David Gersh, rarely giving a direct answer to a question. Instead she questioned his wording - taking particular issue with the use of "a lot" as a quantifier - or used the time to explain some related area of the law, or the staff structure at the Pennsylvania Department of State. Above all, Aichele displayed resolute confidence in the Department of State's ability to work with PennDOT to educate and inform voters before the November election.

Aichele also remains confident in the Department of State's estimate that 99 percent of Pennsylvania's registered voters already possess valid PennDOT ID. This figure, circulated widely during the legislative debate process, has since been discredited by an independent survey (which estimated that same figure at roughly 84 percent) and by the Department of State's own research (which put the figure at approximately 91 percent). On July 16, Rebecca Oyler testified that she herself computed that figure, in less than 24 hours and with unanswered questions from PennDOT, and stated that she considers that figure incorrect. On the stand, Aichele said she "would disagree" with Oyler, and said the Department of State plans to serve roughly 100 thousand voters. In fact, with an estimated 1.3 million eligible voters disenfranchised (according to both the ACLU-PA's survey and to the Department of State's own recent calculations) Aichele said Pennsylvania has budgeted $1 million to provide free Voter IDs - enough for roughly 75,000 ID's.

With less than 100 days remaining before the election, Aichele's response to many questions was to plead ignorance. In fact, when Gersh pointed out that PennDOT offices in many Pennsylvania counties are open only once a week - leaving a mere 13 business days for voters in those counties to obtain ID - Aichele expressed ignorance to the amount of time remaining. Asked about the lack of a documented plan for the Department of State to educate voters, Aichele stated that the court did not have such a document because "there is no document." Asked about reports that PennDOT is requiring people to pay for IDs that are supposed to be free, Aichele said she has heard such reports, but has not verified them. She testified that while other staffers at the Department of State are coordinating with PennDOT, she herself is not working directly with the agency. She was unaware of PennDOT's predicted August 26 roll-out of the new Department of State ID - and when Gersh pointed out that a voter holding an expired driver's license is ineligible for a free ID, even if he or she is indigent, Aichele said it was the "first time she'd thought about that," and thanked Gersh for bringing it to her attention.

Secretary Aichele's definition of "a lot" was interesting. Early in Gersh's questioning, Aichele said that "a small percentage" of Pennsylvania's universities were in compliance with voter ID requirements - "fewer than we expected," in her words - but she pointedly refused to characterize this as "a lot" of colleges. Later in her testimony, she said that of the 750,000 voters who received letters to alert them that the state believed they lacked necessary ID, roughly 200 had written back to say they did have ID - a figure she characterized as "lots and lots."

Asked about federal funding for voter ID outreach, Aichele pointed out that the Help America Vote Act results in $5 million for Pennsylvania, which can be spent "to make sure every registered voter receives at least one piece of mail" alerting them to the new ID requirements. Asked how this funding would be spent if there were no voter ID law, she answered that it would fund voter registration and turnout efforts.

Despite all indications otherwise, Secretary Aichele testified that, based on her experience as Secretary of the Commonwealth, and her prior experience in county government, she does not believe the new voter ID requirements will lead to confusion or delays at the polls. To the contrary, she said, she believes it will help speed the process and avoid confusion. To illustrate this she cited her own experience, frequently needing to spell out her name for poll workers. By putting an ID in front of a poll worker, she said, there would be no confusion about the way a voter's name is spelled.

Related: Voter ID Day 5: Clerical Stumbling Blocks

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Monday, July 30, 2012

Voter ID Trial Day 4: Real People, Real Stories

Before the voter ID trial resumed this morning, Jennifer Clarke, executive director of the Public Interest Law Center of Philadephia and one of the attorneys in the case, said to me that she is struck by how much cases like this come with real stories of real people.

It reminded me of something another lawyer in another Pennsylvania ACLU case told me years ago.

Eric Rothschild, lead plaintiffs' attorney in the
Kitzmiller v. Dover case was hit with a similar observation while watching the testimony of parents standing up for their children's religious freedom.

What he and Clarke understand is that these are not just arguments to be debated and dissected by legal minds and (manipulated for political gain), but cases with very real consequences for people in small towns and cities across the state, from the young and the old, the financially comfortable and the poor.

Today's testimony from four plaintiffs, Tia Sutter, Danny Rosa, Joyce Block and Bea Bookler, provided poignant stories from many of those cross sections. 

Sutter, a former attorney who worked as a Philadelphia assistant district attorney for more than 10 years, is a registered voter who had tried for years to get photo ID.  

Sutter, 61, doesn't drive and her only photo ID is from when she was a college student in 1978. Her Social Security card is under the name Tia Sutter. Her New York-state birth certificate is under the name Christine Sutter. She has been told that she cannot get a state issued ID because her names don't match. "I thought I knew my legal name," she said. "I'm not sure anymore." To change her name on her SS card, she was told she would need a court order, which would cost $400 and would take months.

"My roots and my future are all in Pennsylvania," Sutter said, choking up with emotion. "It's hurtful to me that this is now a question of 'papers please.' If your papers aren't in order, you can't vote." 

Danny Rosa, 63, of West Chester is the son of a Puerto Rican woman and was born in New York. He doesn't know why his birth certificate identifies him as Danny Guerra, his grandmother's maiden name. But since he was a boy, he has always gone by the surname Rosa, the name of his stepfather who raised him. Rosa was the name on his night school diploma and it was the name on his Air Force honorable discharge certificate, which hangs on a wall in his living room.

"You're proud of that?" plaintiffs' attorney Marian Schneider asked him. "I am proud," he said. "It's about the only thing I ever completed."

A regular voter, he wanted to comply with the new law. So he spent the better part of a day gathering his paperwork and making two trips to the local PennDOT driver's license center where he waited about an hour each time. (He doesn't drive and had to get a ride.) "I showed him (the technician) my birth certificate and he told me my name's no good," Rosa said.

"I served in the service for four years," Rosa said. "I don't do it (vote) just for kicks. It means something special to me. I think it should be important for everybody."

Because the next two plaintiffs were not physically able to make the trip from their homes to Harrisburg, their video depositions were played in court in lieu of testimony.

Joyce Block, 89, was born in Brooklyn, the daughter of vaudevillians.  She married in the 1940s. She is Jewish and her marriage certificate is in Hebrew. Her Social Security card and her birth certificate are in her maiden name, "Joyce Altman." She never got a driver's license "because I felt everyone was safer without me on the road."

Since registering to vote when she was 21 - she voted for FDR - she has not missed an election. In 2010, ill and in the hospital, she was determined she was not going to miss the election and refused to vote by absentee ballot. "I wanted to make sure I voted," she said. "And I carried and carried on until they let me take a wheelchair and I voted."

When she heard about the new law, she had her granddaughter take her to the PennDOT center. She was told that because her Social Security card and birth certificate were in her maiden name, she could not get photo ID. She showed the technician her marriage certificate. He said he couldn't read Hebrew.

Block has a large family and a great support system. She is politically active and complained to her state senator, who called PennDOT. When she returned the next time to the center, there were no problems. But she agreed to be a plaintiff because she wants to make sure that others without such a support system are not disenfranchised. 

Bea Bookler, 94, was born one year before the ratification of the 19th Amendment, guaranteeing American women the right to vote. 

Today, she seldom leaves her room at the Devon Senior Living Center. She spends her days reading and watching television.The only times she goes out anymore are on rare and special occasions, when her daughter will take her out for lunch. Also, she goes out twice a year to the election polls, which are next door to her home.  Bookler is unsteady and shakes during her testimony and says it's just too hard to get around anymore.
Over the years, she has lost her Social Security card and her birth and marriage certificates. While she could sign a form attesting that she has no identification and be granted a special ID used solely for voting, it would still take a trip to PennDOT, something she is physically unable to do.

"It's too hard," she said. "You can see I'm not exactly mobile. I get dizzy and shaky."

During her testimony, Bookler was asked why, if it's so hard, she bothers to go to the polls. The question seemed to confuse her. "I would never not vote," she said.

"How proud I am to live in a country is a real democracy. And anything that prevents people from voting is taking away our democracy.

"Democracy is only real if we all participate."

The trial before Commonwealth Court Judge Robert Simpson will resume tomorrow at 9 a.m. Commonwealth Secretary Carol Aichele is scheduled to testify.

--Lauri Lebo, ACLU of Pennsylvania board member

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Voter ID Trial Day 4: State really has no idea how many are without valid voter ID

The voter ID trial began its second week with a review of just how many voters would be barred from the ballot booth in November.

Jonathan Marks, commissioner for the Department of State's Bureau of Commissions, Elections and Legislation, was the first to testify today. 

But Marks, who had previously served as Division Chief for the Statewide Uniform Registry of Electors (SURE), admitted that he doesn't really know the number of people who could be kept from voting this fall.

Initially, the Department of State said only 89,000 voters would need a new ID for voting. But after comparing Department of Transportation numbers with the SURE database, officials said in June that the number was actually 759,000.

Now they're saying they don't really know how many people are being impacted.

Plaintiffs' attorney David Gersch of the Arnold & Porter law firm asked Marks whether the 759,000 number includes at least another 600,000 people identified in the comparison study with expired IDs, or who may have filed inaccurate information. Marks said it didn't. So, according to the state's own study, more than a million people could be impacted. 

To be more precise, 1.5 million.

Even though he couldn't provide a number, Marks said he doesn't think the number is that high. The reason he doesn't think so is because after his department sent letters to the 759,000 voters, many people called and wrote letters that they did indeed have the proper ID.

On redirect, Gersch asked him to identify how many people called and wrote letters. 
"It’s not going to fill up Beaver Stadium, probably a couple of hundred," Marks said.

As for the other more than 600,000 people, they have not yet been notified that there is a discrepancy between their voter registration and their state-issued identification. Marks said the department plans to send them letters at the same time they send letters to the rest of the public - sometime later this summer.

Earlier in the testimony, in a convoluted back-and-forth which I couldn't really follow, Marks described how the state would confirm the voter eligibility of a woman trying to get a state-issued photo ID whose voter registration was under her married name, let's say Sally Smith, but her social security card was under her maiden name, say Sally Johnson. Basically, the PennDOT technician would hand Sally Smith Johnson a 1-800-number for the Bureau of Elections, where someone would be in charge of finding out if Sally Smith is indeed who she says she is. 

But it was very unclear how that would happen exactly.

In concluding his direct, Gersch asked Marks if part of his mission is to make sure that every eligible voter is able to vote. Marks agreed that it was.

"So even if one eligible voter can't vote on Nov. 6, that would be a bad day?" Gersch asked.
"Yes," Marks said.
"And if a registered voter cannot vote because PennDOT doesn't get the word out, that would be a bad day?" Gersch asked.
"Yes," Marks said.
"And if the Department of State gets the word out but the word is sufficiently confusing, that would be a bad day?" Gersch asked.
"Yes," Marks said.
"And if a registered voter can't get a PennDOT ID in order to vote, that would be a bad day?" Gersch asked.
"Yes," Marks said.

So let's review.

The state cannot identify even a single instance in which a person voted improperly in Pennsylvania because they were able to impersonate someone else at the polling place. 

The state's own research shows that 1.5 million Pennsylvanians could be at risk of being unable to have their vote counted in the General Election because they lack the proper ID.

Nov. 6 could be a very bad day.

--Lauri Lebo, ACLU of Pennsylvania board member

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Friday, July 27, 2012

Your Government: "Trust us to get it right on voter ID."

Along with the personal stories about people without ID, government officials took the stand today to discuss numerous angles to the voter ID law and its implementation.

The first witness of the day was Shannon Royer, Deputy Secretary of the Commonwealth. Mr. Royer’s responsibilities include overseeing the state’s bureau of elections. The department has a public education campaign planned that will include radio and television ads, robocalls and mailings to voters, mobile billboards, and ads on public transportation in Philadelphia, Pittsburgh, Harrisburg, and the Lehigh Valley.

The deputy secretary admitted on the stand that the most intensive effort will occur after Labor Day, two months before the election.

Is that enough time for people without ID to get it? Not according to Michele Levy, managing attorney at the Homeless Advocacy Project. According to Ms. Levy, in her experience with helping homeless people get birth certificates, which is necessary to get a PennDOT ID, the timeline to get the birth certificate is 10-12 weeks to a year “to never.”

Royer also cited a Susquehanna Polling and Research poll from “May or June” that showed that 18 percent of people- or 1.4 million Pennsylvanians- did not know about the voter ID law. (He couched it as 82 percent of Pennsylvanians knew about the law.) Meanwhile, Dr. Barreto’s testimony from yesterday showed that a significant percentage of people who think they have an acceptable ID for voting actually do not.

Attorney Jennifer Clarke of the Public Interest Law Center of Philadelphia showed a letter that was recently sent to voters who are not in the PennDOT database. The letter encouraged voters to get an ID and said, “If you have never had a Pennsylvania driver’s license or PennDOT photo ID, you may also need further documentation, such as a birth certificate, a Social Security card, and two proofs of residency.” (emphasis added)

Attorney Clarke pointed out that the documentation is not optional, as the letter suggests. It’s required.

Secretary Royer also testified that the original target date to begin issuing the department’s new voting ID was originally July 24. That date was pushed back to August 26.

Mark Wolosik, the elections division manager in Allegheny County, testified that the Department of State informed his office that 100,000 registered voters in the county do not appear in PennDOT’s database. Wolosik also noted that, in his 42 years in the division, the office has never referred a voter impersonation fraud case to the district attorney.

The final witness of the day was Kurt Myers, Deputy Secretary of PennDOT. Myers testified to his desire for the state driver’s license and the non-driving ID to be “secure” documents. Myers realized in the spring and informed administration officials that there would be voters who could not get a PennDOT ID due to the documentation requirements. That’s where the idea of a Department of State voting ID, issued by PennDOT, began.

Attorney David Gersch of Arnold & Porter used a map of Pennsylvania to illustrate that 32 counties have no license center or a center that is only open one or two days per week.

In a memo to the department’s legislative affairs staff in April, 2011, Myers stated that one negative of the voter ID bill was the potential impact on PennDOT staff that he characterized as “already taxed.” The department aims to have 99 percent of customers out the door within 30 minutes but that percentage is typically only in the high 80s.

Myers also said that 3,000 free non-driving IDs have been distributed since the law’s passage in March but did acknowledge, under questioning from Gersch, that there were problems in the early weeks in which PennDOT staff did not give IDs for free

Finally, although state and transportation plan to roll out the new voting ID on August 26, the vendor contracted for the job does not have a deadline of August 26, and the contract has no penalty for failing to complete the job by that date.

Everyone gets a break for the weekend. The court is adjourned until Monday at 10am.

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Voter ID Trial Day 3: The Courage to Stand Up Against Voter ID

Voter ID plaintiff Asher Schor (center)

Day 3 of the voter ID trial today featured eight witnesses from diverse backgrounds and experiences, including a county official, two state officials, and a public interest attorney. While these witnesses provide important context and density to the case against voter ID, the most compelling stories continue to come from those witnesses in challenging circumstances. Today’s hearing included a woman whose birth state has no record of her birth, a teenager with autism, and a young transgender man who worries about the impact of voter ID on his community.

Taylor Floria and Asher Schor knew exactly what they were doing when they agreed to testify on behalf of the plaintiffs. In testimony, both young men made clear that they care about this issue because of the impact it will have on their respective communities.

Taylor is 19 and lives in Chester County. He just registered to vote and is excited to vote for the first time. Taylor also has autism. Before the voter ID law, he would be able to vote in November’s election. If the voter ID law is not overturned, he will lose the chance to cast his first ballot.

Unlike previous witnesses, Taylor has all of the documents he needs to get a non-driving ID- a birth certificate, a Social Security card, and proof of residency. But Taylor has difficulty with excessive stimulation. Riding in a vehicle also wears him out and gives him motion sickness due to a physical condition. The nearest PennDOT drivers license center is nearly an hour from his home. If the car ride doesn’t wear him down, Taylor then must deal with the disorder of the license center. His autism makes it difficult or just plain impossible to handle the noise, the lack of decorum, the lighting, and other stimulation at the center.

Taylor’s mother, Sandra Carroll, testified that Taylor would probably be mute by the time he got to the clerk. In fact, he tried once to get an ID but had to leave the center before he could get it.

So how did he get to Harrisburg and how was he able to testify in a courtroom? Marian Schneider of Advancement Project asked him this question in direct questioning. Taylor testified that he and his mother traveled to Harrisburg yesterday so that he could have a day and a night to recuperate from the drive. He also said that the order of the courtroom- the decorum in how people dress, the quiet, the order that stems from the judge’s presence- enabled him to testify. That kind of order and decorum does not exist in a PennDOT license center.

Taylor, who earns straight As at the cyber school and technical school he attends, told the court that he chose to testify because he wanted “to explain how it’s difficult for me and for people like me.” He added, “I hope to advocate for them.”

Asher Schor, meanwhile, has a driver’s license from PennDOT. The problem? Asher is transgender. His license photo shows his appearance before he started his gender transition, and the gender marker is female. Asher started testosterone treatments last November, which he testified has given him facial hair, altered his facial structure, and redistributed his body fat.

If the voter ID law is implemented, Asher worries that he and other transgender Pennsylvanians will lose the vote at the hands of a poll worker who won’t accept his ID. As a legal assistant for a prisoner advocacy group, Asher recently endured an experience with a U.S. marshall at the federal courthouse. The marshall became “shorter” with Asher when he presented his ID, refused to allow him to take in his laptop, and questioned him about his name.

Gloria Cuttino, one of our clients, testified between Taylor and Asher. Gloria does not have a PennDOT ID and has tried for more than a year to get one. South Carolina, Gloria’s birth state, has no record of her birth. According to testimony offered later by Michele Levy, an attorney with the Homeless Advocacy Project, South Carolina is one state that does not allow a third party, such as a relative or an attorney, to sign on behalf of a person without ID.

Gloria registered to vote in 2008, has voted in elections since then, and is eager to vote this year.

Today’s recap will be broken into two parts. Transcripts from each day’s proceedings are available at this link, as they become available.

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Taylor Floria stands up for people with disabilities

The brave young man in the middle of this picture is Taylor Floria. Taylor is a 19-year-old high school student from Chester County. He also lives with autism. Today Taylor took the stand in a court of law, something very few 19-year-olds will ever do, as a witness for the plaintiffs who are challenging the Pennsylvania voter ID law.

We'll post shortly about Taylor's story. Taylor's mother, Sandra Carroll, is on the left. Ms. Carroll also testified today. They're joined by Marian Schneider, an attorney with Advancement Project, who is a member of our legal team.

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VIDEO: Vic Walczak speaks to reporters after voter ID Day Two

Vic's comments to reporters after the second day (July 26, 2012) of our voter ID challenge. Citing an expert study commissioned by ACLU-PA, Vic addresses the disproportionate burden these ID requirements impose on various groups, and the potentially devastating impact of poor public awareness of the new law.

This video is made available for noncommercial use, in whole or in part, with attribution to ACLU of Pennsylvania, and a link (where possible) to aclupa.org.

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Thursday, July 26, 2012

Voter ID, Day Two: Statistically Speaking

A full transcript of the hearing is available here.

Day two of our voter ID trial in Harrisburg was about statistics - both the actual statistical impact of new voter ID requirements on Pennsylvania voters, and on the methodology and science behind statistical study.

ACLU-PA's Statewide Survey

Most of the day was taken up with questioning of Matt Baretto, an associate professor in Political Science from the University of Washington in Seattle and expert in survey science and barriers to elections. ACLU-PA and our co-counsel at Arnold and Porter contracted Baretto to conduct a statewide phone survey in late June and early July, to measure the likely impact of PA's new regulations on voters.

Under questioning from ACLU-PA Legal Director Witold "Vic" Walczak, Baretto provided an intensive crash-course in statistical science, first explaining the rigorous scientific standards by which his survey was designed and conducted, even delving briefly into the history of public opinion surveys, and then reviewing the (occasionally startling) results of his PA survey.

The full version of Baretto's study is available to the public here. The short version is that Pennsylvania's voter ID requirements mean serious trouble.

Firstly, Baretto's study revealed significant problems with awareness. As of June and July, even after the primary elections, fully a third of voters knew nothing about the new ID requirements. Even worse: Asked whether they believed they had ID that would qualify them to vote, 99% of those questioned said yes. When probed with more detailed questions to verify their ID, it turned out 12% of them were wrong. When will those people learn that their ID is not valid? Most likely, when they show up to vote.

The problem isn't that people lack any form of photo ID - less than two percent of Pennsylvanians can say that - it's that Pennsylvania's stringent requirements render many forms of photo ID invalid. Less than 86% of eligible voters in the state hold a form of ID that will qualify them to vote. Of the six million eligible voters who cast ballots in PA in 2008, three quarters of a million of them (about 13%) don't have the ID they will need to vote in November.

And, what's probably worst of all, more than 1 in 4 Pennsylvanians who lack the required ID also lack the backup documents required to obtain one - like social security cards, raised-seal birth certificates, marriage certificates, etc. According to Baretto's study, roughly 379 thousand Pennsylvanians currently have no valid ID for voting, and don't have the required documents to obtain one. 174 thousand of those individuals voted in 2008.

Disproportionate Impacts

Baretto's study attempted to identify groups that were particularly hard-hit by the new requirements. Voters were grouped according to several criteria: Ethnicity, age, education level, annual income, access to transportation, and region. While no subsegment had an especially high rate of ID possession (those earning $60-80 thousand a year did the best, with only 7.1% lacking valid ID) several groups were especially hard-hit:

  • 17.2% of women lack valid ID, compared with 11.5% of men
  • 18% of Latino voters, compared to roughly 14% of black or white voters
  • 18% of voters ages 18-34, or age 75+
  • 18.5% of voters with less than a high school education
  • 22% of voters earning less than $20 thousand per year

The most alarming numbers, however, had to come from access to transportation. While voters with regular access to a car saw only 11% lacking valid ID, 30% of those whose primary transportation mode was bicycle or public transit did not possess ID that would permit them to vote - and a whopping 42% of voters who said they had no access to regular transportation also had no ID that would permit them to vote. Remember, please, that polling places are frequently within walking distance of an individual's home - PennDOT licensing centers are generally not.

Also notable was the geographic breakdown, with markedly lower rates of voting eligibility (roughly 18% lack valid ID) in Philadelphia and Allegheny Counties, Pennsylvania's most urban and densely populated. Only around 13% of voters in other counties were likely to lack ID.

On cross-examination, attorneys for the Commonwealth attempted to poke holes in Baretto's methodology, but Baretto met most of their barbed questions with explanations of statistical science. At one point a Commonwealth attorney asked Baretto whether he had ever "written on the opposite side," and found that voter ID was "more beneficial than harmful." Baretto explained that he does not apply judgements about benefit or harm, but only reports on data.

Commonwealth attorneys questioned the impact of the general lack of knowledge about voter ID, pointing out that the state government is planning to invest more than a million dollars in an education campaign around voter ID. Baretto expressed doubt, citing the remarkably short time frame between the proposed start of this awareness campaign and the November election. He cited a study in which voters were quizzed about the facts of a California ballot initiative, shortly after a multi-million dollar awareness campaign. Fourteen percent answered every single question wrong, while another 19 percent got only one or two questions correct. As Baretto pointed out, that's 33 percent total - almost exactly the number of people in Pennsylvania who are presently unaware of PA's requirements.

Baretto also stressed, repeatedly, how difficult it would be to raise awareness when fully 99 percent of Pennsylvanians say they believe their ID is already valid. As Vic explained it following court, "If people think their ID is already good, when that commercial comes on, they're going to go get a beer."

Undermining Integrity

Baretto's approach contrasted sharply with that revealed by Rebecca Oyler, of the Pennsylvania Department of State. Ms. Oyler testified about internal estimates of voters without PennDOT ID, and the related tax cost estimates supplied by the Department to the State Legislature when the voter ID law was being debated. The Department of State famously (and frequently) touted a figure of 1% of eligible voters in PA (or about 90 thousand individuals) who did not have photo ID from PennDOT. They revised that figure in June, following an internal audit, to roughly three-quarters of a million individuals - 9% of the population - and the revised cost to taxpayers of implementing new voter ID requirements scaled proportionately.

On the witness stand, Ms. Oyler testified that she herself put together the 1% figure in less than 24 hours, at the request of her superiors, relying on 2010 Census figures and statistics from an unknown source that she was told came from PennDOT. When Ms. Oyler asked PennDOT follow-up questions, including what portion of their ID database came from non-citizens, PennDOT did not reply.

Ms. Oyler also testified that, following that initial 24-hour calculation, no further effort was made to verify those numbers until after the voter ID law was passed. She testified that the Department of State believes the real figure is lower than 9%, but they are not presently able to present any evidence to verify that belief. 

In her testimony, Ms. Oyler stated that the Department of State seeks to encourage every eligible citizen to cast a ballot, and agreed that, if PA's voter ID requirement prevents eligible people from voting, then it "undermines the integrity of the election process."

Substantial Conformity, Unprecedented Authority

A buzz-word of the day, "substantial conformity" is the term PA's voter ID statue applies to the similarity between a voter's name on his or her photo ID and the name that appears on state election rolls. The legislature included no definition nor criteria for this term, and Ms. Oyler testified that, while the Department of State may issue recommendations to the county boards of election, those recommendations would be non-binding. Ultimately, the question of substantial conformity, and the decision as to whether two names match - say, for example "James Smith" and "Jim Smith" - will be left to those individual boards of elections, and ultimately to the individual poll workers. 

Leaving such a subjective determination in the hands of so many individuals raises significant questions. Substantive differences in name are not uncommon - particularly for recently-married women, who are likely to have obtained a new driver's license, but highly unlikely to have updated the election rolls. Voters whose ID is rejected would have the opportunity to cast a provisional ballot, but as they will have only six days to order and obtain a corrected ID card, the odds that their vote will be counted are slim. In his testimony, Baretto remarked that any voter who has an ID with a name that is not an exact match with his or her name on the voting rolls is "at risk" come election day.

A similar problem confronts the voter ID law's provision for "indigent" voters. According to the law, voters who are "indigent" are permitted to bypass ID requirements and instead complete a special form, which must be submitted to the county board of elections to accompany their provisional ballot. Once again, however, lawmakers failed to define "indigent," and so it is left to the county boards of elections, and ultimately to the discretion of individual poll workers, to decide who is indigent and who is not - as well as to decide whether to provide the "indigent voter" paperwork on-site at the polling place or require indigent voters to make a separate trip to county election headquarters.

In short, under PA's new law, when you hand that poll worker your photo ID card, you're handing over unprecedented authority over whether or not you can vote. Try to smile.

We'll be uploading video of Vic's post-trial comments later tonight or early tomorrow. Remember to follow ACLU-PA on Twitter and Facebook for regular updates throughout the day.

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Voter ID Day 2

The second day of trial began with Judge Simpson bemoaning the inexorable progression of time, denoted by Mick Jagger's 69th birthday. The rest of the morning was spent with witness Matt Baretto, an expert in survey science and barriers to elections from the University of Washington in Seattle. Baretto conducted a survey in June and early July, contracted by ACLU-PA, to measure the impact of the state's new voter ID requirements.

The survey, which is available in full for review online, tried first to determine how many Pennsylvanians believe they have the required documentation to vote in November, and then to verify how many actually do have the required documentation. From there, it went on to answer other questions, like how many people without a qualifying ID have the backup documents they would need to obtain one, and how many have access to a vehicle or public transportation.

During morning questioning, Baretto also raised the issue of "substantial conformity," the requirement that the name on an individual's ID card match his or her name on election rolls. The trouble is that no guidelines exist for determining "substantial conformity," which means it may come down to the subjective opinion of each individual poll worker. On the stand, Baretto said his sense was that "Anyone who's name is not an exact match is at risk" of being turned away.

Follow @aclupa on Twitter and on Facebook for periodic updates throughout the day. We aren't allowed any electronic devices inside the courtroom, so updates tend to come in bursts whenever there's a break.

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Wednesday, July 25, 2012

Voter ID Trial Day 1: ID to Vote is a Burden

“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.” –Article I, Section V of the Constitution of the Commonwealth of Pennsylvania

Today our legal team, our friends from Advancement Project, Public Interest Law Center of Philadelphia, the firm of Arnold & Porter, and ten courageous individuals went to Commonwealth Court in Harrisburg to challenge Pennsylvania’s new voter ID law, which is scheduled to take effect in September. Today’s hearing was the first of over a week of trial.

Judge Robert Simpson, the presiding judge, announced his intention to rule on the case, Applewhite et al v. Commonwealth of Pennsylvania, sometime during the week of August 13.

In his opening statement, David Gersch from Arnold and Porter said that the plaintiffs will prove the following in our case:

  •          A large number of citizens will be adversely impacted by the voter ID law
  •          PennDOT IDs can be difficult to obtain
  •          The obstacles to getting a PennDOT ID are unnecessary to vote
  •          There is an irrational distinction between voters in the law, with less burden on absentee voters than on in-person voters
  •          The commonwealth’s new, not-yet-released voting ID is a “band aid approach” that will not be sufficient to address the problem

Our team will argue to the court that the voter ID law is a violation of fundamental rights and that it makes a distinction between different types of voters that violates the constitution.

At today’s hearing, the legal team set about doing just that.

Over the course of 3 ½ hours, our lawyers called six witnesses, with a seventh testifying by video recording, who described their struggles in getting state-issued identification. The first witness was Wilola Lee of Philadelphia, a plaintiff in the case. Ms. Lee has never had a driver’s license or a non-driving ID. She has eight forms of ID, including at least five issued by her local, state, and federal governments. But none of them are acceptable for voting under the new law. Ms. Lee has spent 12 years and over $200 trying to get an ID but has been unsuccessful. She has been unable to obtain a birth certificate from the state of Georgia, her birth state.

In describing her passion for voting, Ms. Lee said, “It’s a way for my voice to be heard.”
Ms. Lee was followed on the stand by Viviette Applewhite, our lead plaintiff. Ms. Applewhite is a 93-year-old great-great-grandmother who has tried in vain to get ID for five years. She has never had a driver’s license or a non-driving ID, and her identifying documents were stolen several years ago when her purse was stolen.

Less than two weeks after we filed our lawsuit in May, Ms. Applewhite received her birth certificate from the commonwealth. The problem? It’s in her birth name. She took the name Applewhite when she was adopted as an adult (for inheritance purposes) in Mississippi. Her legal representation, Face to Face, does not have the resources to track down her adoption papers in Mississippi.

Our client Nadine Marsh, who testified via her recorded deposition, and additional witnesses Laila Stones, Stanley Garrett, and Ana Gonzalez all told similar stories of their struggles to get ID and their fear of losing the right to vote.

Today’s proceedings closed with an hour of testimony by Veronica Ludt, the legal services director of Face to Face in the Germantown section of Philadelphia. Face to Face provides a variety of services to low-income residents of the community, including free meals, legal services, a medical clinic, and kids’ programs. Ms. Ludt has worked with many clients, including several of our plaintiffs, who cannot get the kind of ID required by the state’s voter ID law. Even with the help of Face to Face and Ms. Ludt, some of their clients have tried for years to get identification but to no avail.

When asked by ACLU-PA legal director Vic Walczak if Ms. Ludt knows of organizations like Face to Face in other parts of the state, she responded that she does not.

The proceedings start again tomorrow at 9am. Our first witness will be Dr. Matthew Barreto of the University of Washington, an expert on voter attitudes and behavior. Dr. Barreto estimates that more than one million Pennsylvanians do not have the ID required by the new law and that a significant percentage of the state’s citizens aren’t even aware of the law or, if they are, think they have the right form of ID but do not. Dr. Barreto’s expert report is available here.

I’ve been telling people for weeks that I’m sure of one thing about this legal challenge: Our team is going to put on a great case. Today they proved me right.

A full transcript of the hearing is available here.

ACLU-PA legal director Vic Walczak talks with reporters after today's proceedings about the lack of evidence of voter impersonation fraud and the burden of voter ID.

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Viviette Applewhite, 93, keeps fighting.

Viviette Applewhite marched with Dr. Martin Luther King Jr. in the 1960s. She's 93 years old, requires use of a wheelchair, and she's still fighting for civil rights. She's our lead plaintiff in the Voter ID challenge.

We're all a little bit in awe.

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PBS Newshour coverage of ACLU-PA's Voter ID challenge

Voter ID trial begins in Harrisburg

Lead plaintiff Viviette Applewhite with ACLU-PA Executive Director Reggie Shuford, Legal Director Witold "Vic" Walczak, partner attorneys from Arnold & Porter and the rest of the Voter ID legal team.

Trial began at 10 AM today at the Judicial Center in Harrisburg, and should last until next Thursday or Friday. We'll do our best to keep you updated with updates at least daily, but if you want more frequent details you should follow us on Twitter and Facebook. We can't live-tweet from the courtroom, but we'll be stepping out periodically to keep our followers updated.

If you'd like to observe or show your support, the hearing is open to the public. It's in Courtroom 3002 of the PA Judicial Center, 601 Commonwealth Ave in Harrisburg, before Judge Robert Simpson. Court should begin at 9 AM daily, and seating is limited so please arrive early.

For detailed information about the trial, including interviews with our clients and copies of all legal filings, visit aclupa.org/voterid.

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Tuesday, July 03, 2012

What happened in Harrisburg?

So the dust has pretty much settled from budget month at the state capitol. What didn't happen is as noteworthy as what did happen.

No defund of Planned Parenthood. Although House Bill 2405 was introduced with great fanfare- because everything primary sponsor Rep. Daryl Metcalfe does is done with great fanfare- the bill was referred to the House Rules Committee and was never heard from again.

No preconviction DNA collection. There were murmurs throughout the spring that the House would take up Senate Bill 775, mandating the collection of DNA from all persons arrested- but not convicted- for a felony or one of several enumerated misdemeanors. In June, the House had already debated expanding the power of the government and civilians to wiretap us and a ban on "secret compartments" in vehicles. Taking up DNA collection of people who are innocent under the law may have been a bridge too far toward the police state, but we are on alert for the possibility that this bill comes back when the legislature returns to session in the fall.

No ID for public benefits. With the President Pro Tempore of the Senate, Joseph Scarnati, as the primary sponsor, it seemed that the passage of SB 9 was a foregone conclusion. But the bill went through a serious game of legislative ping-pong. It was amended and passed in the House, forcing it to return to the Senate. It was amended and passed in the Senate, forcing it back to the House. The bill was brought up for consideration on the House floor at 11:45pm on Saturday, just as the governor was preparing for the signing ceremony of the budget and related legislation. When the House Republicans returned from the ceremony, SB 9 wasn't taken up.

SB 9, in its current form, mandates applicants for public aid to show ID to be eligible for the aid, with some exceptions. No ID, no aid. As we've learned throughout the debate over voter ID, there are some citizens who do not have and who would have a difficult time obtaining ID. In the House, Rep. Metcalfe (that guy again) stirred the pot further by adding a provision that would create a third-degree felony if an undocumented immigrant possesses a benefits card, an obviously unconstitutional provision since there are legitimate reasons for an undocumented immigrant to possess a card. For example, he might have it because his citizen child participates in food stamps.

It's hard to predict where SB 9 will end.

No taxpayer-funded private school vouchers. Vouchers proponents are claiming victory after the passage of an enhanced version of the Educational Improvement Tax Credit program, in which private corporations can get a tax break for donating to a scholarship fund. But the fact is that "EITC 2.0," as it's been called, was Plan B after the defeat of vouchers, which would have given public funds directly to students to attend private and parochial schools....well, parochial schools because the amount of the voucher could only cover the tuition at a religious school and not at a secular private school.

We lost on a new E-Verify mandate for public contractors, Senate Bill 637, Pennsylvania's first E-Verify mandate. The governor has not yet signed the bill, but he is expected to do so.

All told, though, we escaped the torture of budget month in Harrisburg with civil liberties relatively unscathed. All in a day's, or month's, work at the ACLU of Pennsylvania..... And that sounds like a good reason for you to donate today!

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