Gersch’s strategy: Rope Aichele into a discussion of minute details of the voter ID regulations until she fell out of her comfort zone. He started with questions about some relaxed ID standards for elderly people in assisted living.
“The law doesn’t restrict issue of these forms of ID,” he said, hinting at a question.
“I’ve not looked at the law specifically,” said Aichele. “It was my understanding that residents of the care facilities were allowed to get these kind of IDs.
“You believe that the law says …” started Gersch.
“I don’t know what the law says,” said Aichele.
“Well, the law says whatever the law says,” shrugged Gersch.
Again and again, Gersch pushed Aichele into a back-and-forth of trivial details, which inevitably led to her admission that she didn’t know every cranny of the law. He displayed an email to curious voters from Aichele’s “special assistant” Megan Sweeney, and Aichele disputed that she actually had a special assistant. “We don’t have titles in the state government,” she said. “I think her title is, officially, executive assistant.” It isn’t.
Gersch sparred with Aichele for 45-odd minutes, coaxing a few more bored-sounding answers to hypothetical questions, only once earning an objection for “hearsay.” The state only took a third as much time with Aichele, mostly to get her on record describing how the law wouldn’t cause confusion at the polls.
“Do poll workers generally know how to spell your name and find it in the poll book quickly?” asked Cawley.
“No,” laughed Aichele.
“Do you expect that having to use your driver’s license will facilitate that process?” asked Cawley.
It would, said Aichele, but the whole discussion was orthogonal to the argument the petitioners had been making. The state kept getting stuck in those kinds of discussions. Joanne Tosti-Vasey, a former state leader of the National Organization for Women, claimed that she had proved the uselessness of the law by voting with a state lobbyist ID—not a state employee ID, as the law seemed to ask for in a section about what government IDs were included in the safe list. The petitioners and Cawley fell into a lengthy discussion, with documentation, of what includes meant. “I really get the point,” said Judge Simpson.
The hearing ended early. There would be no more witnesses for the state and only a few more witnesses for petitioners. I used the bonus time to meet up with a local Republican strategist who’d been following the hearings as close as everybody else and had a low opinion of them. The theory: Any decision in the Commonwealth Court would be appealed to the state Supreme Court. Why play your aces when you’ve got a higher-stakes game coming up? Why not just let the anti-ID crowd put on a parade of sad witnesses for the media?
It’s a reassuring theory. If you want to save the voter ID law, you don’t want to think that Round 1 of Applewhite v. Pennsylvania is the best you can do.