Voter ID Trial Day 10: Controversy Continues as Courtroom Closed to Public

by Sara Mullen, Associate Director, ACLU of Pennsylvania

The tenth day of the voter ID trial kicked off with a frequent flier on the witness stand, Jonathan Marks, the Department of State’s Commissioner for the Bureau of Commissions, Elections and Legislations, who has testified on four of the 10 days of trial so far.  Mr. Walczak, legal director for the ACLU of Pennsylvania and an attorney for the petitioners, picked up the cross-examination of Mr. Marks that began last Thursday.

Mr. Marks’s testimony under cross examination summed up many of the arguments petitioners had made throughout the trial. He testified that the nine counties that have no PennDOT driver’s license centers have anywhere from 9 to 32 polling locations each. The point was brought home when Mr. Marks testified that his current polling place is one city block from his home in Perry County – which does not have a single PennDOT driver’s license center. The nearest PennDOT driver’s license center to Mr. Marks is over 34 miles away.

Mr. Marks also admitted that several larger colleges still do not student IDs that are valid for voting because they lack an expiration date and do not provide stickers, including Duquesne in Pittsburgh and Haverford, Villanova, and Widener in the southeastern part of the state.

Mr. Marks also testified that many counties struggle to keep up with the rush of voter registrations at the registration deadline. In fact, he said, Philadelphia specifically has a backlog and is usually still processing them literally days before the election. This fact is particularly important for the DOS ID process, as the Dept. of State holds on to DOS IDs until a voter shows up on the voter rolls and then sends the ID by two or three day UPS to the voter.  (DOS IDs are only available to verified registered voters.)

The second witness of the day was Megan Sweeney, Special Assistant to the Secretary of the Commonwealth. She spearheaded the Department of State’s education efforts about the voter ID law. She testified about the department’s outreach to state agencies, counties, and others organizations about the law. She worked with Bravo group to produce the state’s educational materials and attended 40-50 events. She also did outreach to organizations that worked with nursing homes and similar facilities eligible to print their own voter IDs on regular printer paper.  Under cross examination, Ms. Sweeney admitted no one at the Dept. of State tracked how many nursing homes, personal care homes, or assisted living facilities actually produce IDs that can be used for voting.

After Ms. Sweeney’s testimony, the controversy over the DOS ID exceptions sheet erupted again. The debate stems from a spreadsheet of 615 names on the “exceptions spreadsheet,” which is a document created by the Department of State from the Sharepoint database to track any voter who attempted to get a DOS ID and left PennDOT without one.

It is important to know the DOS ID process in order to understand this controversy. PennDOT will only issue a DOS ID to registered voters. When a person applies for a DOS ID, PennDOT calls the Dept. of State to confirm the voter’s registration. If he or she does not show up on the rolls, PennDOT creates the photo ID anyway, fills out a paper voter registration form, and sends the ID and the voter registration form to the Dept. of State for processing. The voter registration information is sent on to the county, which is responsible for entering voter registrations into the system. The Dept. of State then keeps the DOS ID until the voter’s registration appears in the system, then they send it via regular UPS (not express) to the voter.

In December of 2012, Mr. Marks sent an email to PennDOT asking for information about the names of 194 people whose paper voter registration forms were sent along by PennDOT to the Dept. of State with no DOS ID attached. The PennDOT employee replied that 144 of those individuals had some other form of PennDOT ID. However, due to confidentiality issues, PennDOT would not tell Mr. Marks which of those 194 names were on the list of 144.  These 194 names appear on the DOS exceptions spreadsheet of 615 names. These numbers may sound small, but given that only 3,830 DOS IDs have been issued in total, the way these DOS applications are handled is important evidence for understanding how well the DOS ID process – the card of supposed “liberal access” – is working.

Judge McGinley has asked repeatedly during the trial for the two sides to agree on how to classify what happened with the voters on the exceptions list, some of whom either did not ever receive PennDOT ID or received it long after they had applied. The commonwealth says it has confidentiality concerns about the information on the spreadsheet.

This afternoon, petitioners attempted to finally solve the mysteries around the exceptions spreadsheet by calling Bryan Niederberger from BLDS, who has access to the confidential data, to testify about the raw numbers of voters on the spreadsheet and the resolution of their applications for the DOS ID. However, the commonwealth objected and for the second time this trial, the judge agreed that the court session would be held “in camera,” which means it was closed to everyone except counsel in the case, the witness, and the judge and courtroom staff. Petitioners objected to closing the proceeding to the public but were overruled.

Mr. Niederberger’s cross will continue tomorrow morning, possibly still in camera.  Closing arguments for both sides are also expected tomorrow.