Voter ID, Day 4, July 18, 2013

by Paul Anderson, legislative intern, ACLU of Pennsylvania

This morning began where the trial left off yesterday. Jonathan Marks, the Department of State’s Commissioner for the Bureau of Commissions, Elections and Legislation, continued his testimony about the Department of State (DOS) ID, the special form of ID designed as an alternative for those registered voters who could not obtain a secure PennDOT ID. Central to Marks’s testimony was the question of whether the issuance and delivery of DOS IDs satisfied the voter ID law’s requirement that IDs be liberally accessible to eligible voters.

Much of the morning was spent pouring over petitioners’ Exhibit 2071, the DOS ID Exceptions Spreadsheet that cataloged each DOS ID applicant who was flagged and initially denied a DOS ID from PennDOT. Reasons for denial included, but were not limited to, the applicant not being registered to vote, concerns about duplicate registration, and inconsistencies in identifying information. This information was used to determine how many duly registered voters were unable to get a valid ID before last year’s November 6 general election. Through Mr. Marks’s testimony, and a bit of lawyerly math, it was determined that 2,255 DOS IDs had been issued since September 27, 2012. Of persons duly registered to vote on or before October 9, 2012 (the deadline to register for the 2012 general election), 42 did not have IDs delivered by November 6, and 82 of those individuals have still not been sent an ID as of early July 2013. This indicates that 5.49% of persons who applied for a DOS ID were duly registered to vote in the 2012 election but did not received an ID before Election Day.  That's a pretty devastating error rate when it means disenfranchising voters. 

Members of that group had some compelling back stories. There was a lot of focus, from both petitioners and respondent, on a 94-year-old woman, registered since 1944, who went to PennDOT in October 2012 did not receive a valid ID until March 2013. The commonwealth focused on a name discrepancy to explain the delay. The voter in question had registered as Mrs. [husband's first name] [last name], a practice that seems wholly anachronistic today but was not uncommon during World War II. The commonwealth seemed unperturbed that a voter who has cast a ballot since 1944 would have been, absent the temporary injunction, unable to vote in the 2012 election simply because of the name she registered with 69 years ago. 

The commonwealth did not aggressively dispute the conclusion that 124 voters would have been disenfranchised by the voter ID law They suggested in cross examination that those people actually got IDs through another process, but they did not specify how or present any specific information.  Instead, respondent’s counsel returned Marks to his Wednesday testimony in an attempt to show that the DOS measures, in coordination with the efforts of the county boards of elections, would help ensure that all eligible voters who apply for an ID would have it by Election Day. While Mr. Marks testified that his department would do everything in its power to ensure that it can get IDs to as many eligible voters as possible, he was unwilling to speculate whether or not the Department of State would have had the resources to ensure, absent the injunction, no eligible voters were disenfranchised in 2012.

 Marks concluded that he remained confident in the integrity of Pennsylvania’s elections even after the voter ID law’s enactment, despite agreeing with the conclusion that petitioners had evidence of 124 eligible voters who have been disenfranchised if the law had been in effect.

After lunch, Andrew Rogoff,  a lawyer from Pepper Hamilton LLP, took the stand to testify to the difficulty his late father-in-law, Herbert Ginensky, had in obtaining a valid photo ID in the months before his recent passing. Mr. Ginensky, a life-long New Yorker and WWII veteran, moved with his wife to Pennsylvania because of their failing health. Mr. Ginensky had ceased driving so when his driver’s license was due to expire, he chose to forgo renewal and apply for a DOS ID through PennDOT. What should have been a relatively smooth application process turned into a bureaucratic nightmare. Mr. Rogoff helped his father-in-law fill out the necessary paperwork in November 2012. After failing to get a response for several months, he called PennDOT to find out what the delay was. PennDOT told him that Mr. Ginensky could come in to a PennDOT location to receive his ID, but given Mr. Ginensky’s health, this was not ideal. In late February, a letter from PennDOT finally arrived, but it lacked the DOS ID card, informed Mr. Ginensky his application for driver’s license renewal (which he did not apply for) had been postponed, and most bizarrely, informed him that he had an outstanding balance of $0.00 that he owed PennDOT. After resending a notarized form (at the cost of $5.00) and “paying off” his $0.00 balance, Mr. Ginensky finally received is DOS ID card on May 24—three days after the May 21 election.

On cross-examination, respondent counsel attempted to raise some doubts about Mr. Rogoff’s factual claims (was he sure the ID wasn’t in the envelope when it left PennDOT? Haven’t you ever been tied up in red tape, Mr. Rogoff?), but he was a sympathetic witness.

Shannon Royer, the Department of State’s Deputy Secretary for External Affairs and Elections, was the final witness. He testified out-of-order on behalf of the commonwealth. After relaying the history of electronic voter registration databases in Pennsylvania, Mr. Royer explained how the department orchestrated a statewide education campaign that “touch[ed] all corners of the state.” Targeting minority groups, non-English speakers, seniors, college students and the financially disadvantaged, the education campaign deployed advertisements in a cornucopia of media platforms:  television, newspapers and magazines, radio, buses, mail flyers, billboards, online banner ads, and social media, to name just a few. There were pre- and post-injunction advertisements. The pre-injunction ads used the phrase, “If you want to vote—show it!” while the post-injunction ads altered it to, “If you have it—show it!” In both instances “it,” of course, refers to a valid photo ID.

Mr. Royer was visibly proud of the education campaign, and his testimony revealed he was of the belief that, if anything, the department overestimated the number of people it would need to reach with the idea. He also cited the “soft roll-outs” (the term used for the policy in place at the 2012 general and 2012 and 2013 primary elections where voters were asked, but not required, to produce a valid photo ID). While the evidence indicated that the department did spend a lot of money ($5 million so far, with another $2.65 million pledged) on getting the word out about the requirements of the voter ID law, he was not able to provide evidence of how well the campaign actually worked in getting valid photo IDs into the hands of those who need them.

Mr. Royer’s testimony clearly demonstrated that the department, despite spending a fortune on the education campaign, committed absolutely no funds to analyzing the success of the campaign. He could give neither a general statistic regarding how many eligible voters still lack a valid ID nor more specific stats about how effective the campaign was for the targeted demographics. There was also a brief disagreement regarding whom the law actually affects. Mr. Royer contended that the voter ID law’s indigence exception allows anyone to circumvent the law by asserting that he or she is poor and filling out a provisional ballot. (Of course, since IDs are free, no one can legitimately sign an affidavit saying they can't afford to get a free ID, so the exception is useless.)  Petitioners’ counsel questioned that interpretation, arguing that the law required both a claim of indigence and an assertion that the person could not afford to get an ID. There were also questions raised about how effectively the education campaign publicized the DOS ID. Indeed, not a single ad even mentioned the DOS ID. In a key admission, Royer stated that they intentionally didn't mention the DOS ID because they didn't want to confuse voters with driver's licenses who might think they needed additional ID to vote. The overriding concern was to ensure that voters with ID bring the ID - no to helping voters without ID get one.

Ultimately, the department will likely claim that the education campaign was an operational success, but it lacked the evidence to conclude the campaign did what it was supposed to do—get more eligible voters valid IDs. Without any sort of study into the campaign’s effectiveness, the department (and, by extension, the Commonwealth Court) remains in the dark as to whether the campaign significantly increased the number of people who have valid IDs to vote.

After over three hours on the stand and another late day in court that ended at 5:00 p.m., Mr. Royer was finally permitted to step down, and the court recessed. As Mr. Royer was called out of order, petitioners will resume their case tomorrow. Diana C. Mutz, Ph.D., a professor from the University of Pennsylvania, will critique the Department of State’s education campaign, including its failure to meet the standards of an effective information campaign. 

It is also looking likely that the trial will extend to the week of July 29.