Voter ID Trial Day 8: The Commonwealth’s Case

By Sara Mullen, Associate Director, ACLU of Pennsylvania

Today the commonwealth called its first two witnesses, although petitioners declined to rest their case officially until an ongoing dispute over a piece of evidence is resolved. The dispute escalated this afternoon, at one point requiring everyone except Judge Bernard McGinley and lawyers for the two sides to clear the courtroom while they unsuccessfully attempted to settle the matter. 

In what proved to be a somewhat baffling choice, the commonwealth opened its case with Kelly O’Donnell, Director of Operations and Management at the Department of Aging. Ms. O’Donnell testified about the department’s efforts to educate “older Pennsylvanians,” defined as individuals 60 and older, about the voter ID law. 

During her cross examination, Marian Schneider, an Advancement Project attorney representing the petitioners, noted that the primary education document created by Ms. O’Donnell and distributed to voters states that one can get an ID at “a PennDOT driver’s license center or photo center.” Despite being a key figure in the educational efforts of her agency, Ms. O’Donnell was unaware until she was told on the stand today that one cannot get the PennDOT or Department of State (DOS) ID for voting at a photo center. (The confusion is not unusual - earlier in the trial two elderly voters testified about mistakenly going to a photo center instead of a driver’s license center to obtain an ID.) 

Ms. Schneider also produced an email from Ms. O’Donnell to a manager of a senior center in which Ms. O’Donnell erroneously stated that IDs can be obtained at a photo ID center and that PennDOT could schedule an appointment in advance for large groups of people to come in to get ID. PennDOT does not have such a program.

Ms. O’Donnell also admitted that the primary document the department used to educate older Pennsylvanians about the voter ID law was never updated to include information about the DOS ID. 

The commonwealth’s other witness of the day was Kurt Myers, Deputy Secretary for Safety Administration, whose duties include overseeing driver and vehicle services. He testified that PennDOT has issued 12,981 free-for-voting non-driver’s photo IDs and an additional 3,830 DOS IDs since the law went into effect (the DOS ID wasn’t available until August 27, 2012). He noted that every photo of an individual taken for a PennDOT ID stays in their system indefinitely and that on rare occasions, such as someone being away on military duty, PennDOT could print a new valid ID using a photo on file.

Throughout his testimony Mr. Myers stressed that obtaining an ID was a “shared responsibility” between PennDOT and its customers. People seeking ID should know where to go to get the ID and what specific “PennDOT product” they need when they arrive. “There’s an effort in life,” he said. 

When asked, Mr. Myers said he did not “agree with the premise that people don’t know the difference between a driver’s license center and a photo center.” He refused to concede that it was understandable that voters might be confused about the two kinds of PennDOT centers - despite having been in the courtroom when Ms. O’Donnell, a high ranking official in state government, admitted on the stand that she did not know the difference between the two.

Mr. Myers stated that under current protocol, PennDOT employees do not ask customers if they need a free ID for voting but instead ask them for what purpose they want an ID. If customers do not mention voting, they are not told of the option to obtain a free ID.  He seemingly did not understand the difference between a PennDOT employee proactively asking an individual if he or she needs the ID for voting and the more open-ended question of “what do you need an ID for?” After prolonged questioning on the issue, Myers said if it would make things easier, he will “issue an edict tomorrow” requiring PennDOT employees to ask customers if they need an ID for voting. 

Mr. Meyer’s testimony was briefly interrupted while the two sides attempted to resolve a long-standing dispute over a spreadsheet produced by the Department of State that lists roughly 500 individuals who were initially rejected for the DOS ID.  At issue are how many of these people were properly registered voters who should not have been rejected and which ones on the list ultimately received an ID. At one point, in an attempt to resolve the matter while protecting confidential voter information, Judge McGinley cleared the courtroom to discuss the matter with counsel from both sides. The dispute remains unresolved, as petitioners requested time to review the latest information on these voters provided under seal by the commonwealth.

Court resumes tomorrow at 9 a.m. and is tentatively scheduled to conclude for the day at 3 p.m. Witnesses include Jonathan Marks and Dr. William Wecker, an expert witness who will be critiquing the report submitted by the petitioners' expert witness, Dr. Bernard Siskin.