In the fall, some Pennsylvanians were surprised to see advertisements about the state’s voter ID law – surprised, because the law’s requirement that voters present photo identification at the polls was not in effect for the off-year November election.

Judges have issued repeated holds on the voter ID requirement until courts sort out a constitutional challenge brought by 94-year-old Viviette Applewhite and the ACLU of Pennsylvania. Their suit claims that the law disenfranchises voters, particularly minorities and the elderly.

Newly obtained documents show that Pennsylvania’s Department of State received feedback that this fall's voter ID messaging, both on air and in Election Day fliers, could confuse voters.

The department discussed the concerns, which included a letter from the solicitor of Adams County that called the messaging “confusing and potentially frustrating,” but no changes were made to the ads or fliers.

In October, ads from the “Show it” campaign the state had commissioned in 2012, with a modified message, began appearing on television, radio and online. They feature a string of voters holding up their state-issued IDs.

“If you care about this election,” the “voters” say, “if you want a voice ... show it.”

The ad concludes with the message that voters will be asked about, but not required to show, photo identification at their polling place. It then provides instructions on how to get a free voter ID.

When the ads came out, the Committee of Seventy, parties to the lawsuit and Pennsylvania Democrats were quoted in a flurry of media coverage across the state, in which they called the messaging confusing. An editorial from the Scranton Times-Tribune called the ads “needless” and “misleading.”

Questions arise about ads

Within days, internal emails show top staffers at the Department of State were receiving questions about the advertisements.

“Barb will send you info about a call that needs to be returned from someone asking why voter ID advertising is occurring at this time,” Shannon Royer, deputy secretary of the Department of State, wrote in an email to colleagues Oct. 9. “Here is the talking point we are using on this issue: […] Judge McGinley specifically noted that he was leaving the education provisions in the voter ID law intact and education at the polls may continue.”

Commonwealth Court Judge Bernard McGinley had ordered the latest injunction in August. His instructions left the Department of State with what could be considered a fine line to walk in communication with voters.

McGinley decreed the state could continue to educate people about the law’s requirements. However, he said, messaging must be more cautious. Poll workers could not keep telling people, as they had in past elections, that they would be required to bring ID next time.

Last month, department spokesman Ron Ruman explained why the state decided to run ads.

“We got criticism,” he said, “in the trial and before that because we hadn’t done education since the 2012 election.

"Because of the ruling it wasn’t the maybe simplest message that we would have like to have delivered but we felt that it was accurate,” he said.

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To smooth the process on Election Day, the agency also drafted lawyer-approved fliers for distribution to voters. In an effort to adhere to the judge’s order, the state instructions to all counties said poll workers should stop discussing the law outright and simply hand voters a flier if they could not produce ID.

The reaction to the two-column handouts was also mixed.

On Oct. 4, following a call from WHYY/NewsWorks asking for comment on some Philadelphia-area complaints about the flier, Jonathan Marks, commissioner for elections and legislation in the Department of State, wrote to Royer,  Ruman and Secretary Carol Aichele that, “We’ve received similar calls, but none from county officials directly. I have a few that I want to discuss with Shannon [Royer].”

'Confusing and potentially frustrating'

Nineteen days before the general election, the solicitor from Republican-controlled Adams County wrote to Marks.

"We are not trying to undermine the department's goal,” wrote attorney John Hartzell in an email received in response to a Right to Know request, “But we realize that what seems clear to a state bureaucrat in Harrisburg is going to lose clarity and cause confusion when mentioned for the 10th time after 12 hours by a septuagenarian poll worker who also is told not to answer questions but only hand out papers. The voters will see this not as informational, but as confusing and potentially frustrating."

Hartzell elaborated on his point in a recent interview.

“What I was trying to get across was the average person voting, we want to encourage people to vote. We want to encourage people to work as poll workers … And I don't know that they would understand the subtlety here,” he said. “Somebody's just worked a 10-hour day. They come [to] vote. We don't want to cause things that will make things more challenging for them.”

Once the fliers were out, department spokesman Ruman said they were not modified.

“We talked to a lot more people who said they were clear,” he added.

As of Thanksgiving, Ruman confirmed that Pennsylvania's total spending on voter ID advertising since March of 2012 stood at $1,029,005.02, including $1,021,405.02 on the production and ad buys on radio, television and online and $7,600 for voter ID fliers. Another $204,066.83 for legal help went to law firm Drinker, Biddle and Reath; $75,000 came out of the Department of State budget and $129,066.83 from the Office of General Counsel.

Though the state spokesman – and everyone else these days – hesitates to predict when the Pennsylvania courts will reach a final decision, Ruman hopes any remaining ambiguity will be resolved before the next round of voting.

County solicitor Hartzell says the one thing that has not surprised him in the statewide debate over the voter ID case is the level of passion it has provoked for more than a year and a half.

“Election law,” he remarked, “it's always something where there's a lot of tension, a lot of pressure.”