Moyer v ACORN transcript

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					1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Before: Date: Place:

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Monica Moyer; Robert A. Gleason, Jr.; : Joyce Haas; Adrienne Mitford; : Joseph B. Maguire; W. Craig Williams; : and the Republican Party of Pennsylvania, : Petitioners : v. : Pedro A. Cortes, Secretary of the : Commonwealth; Association of Community : Organizations for Reform Now (ACORN); : Philadelphia ACORN; Allegheny County ACORN;: Erie County ACORN; Harrisburg ACORN; : Lehigh Valley ACORN; : Southeastern PA. ACORN; Project : Vote/Voting for America, Inc.; : Citizens Services, Inc.; and all other : ACORN Affiliates and Subsidiaries : Operating in Pennsylvania, the identity : of which are currently unknown, : Respondents :

No. 497 MD 2008

TRANSCRIPT OF PROCEEDINGS THE HONORABLE ROBERT SIMPSON, Judge October 29, 2008, 10:00 a.m. Commonwealth Court of Pennsylvania Irvis Office Building Courtroom No. 1, Fifth Floor Harrisburg, Pennsylvania

APPEARANCES: Heather S. Heidelbaugh, Esquire Andrew M. Miller, Esquire For - Petitioners Kathryn L. Simpson, Esquire For - Respondents ACORN, Project Vote and Citizens Services Albert H. Masland, Esquire For - Respondent Pedro A. Cortes, Secretary of the Commonwealth

1 2 3 4 5 6 For Petitioner Ashawnita Moncrief For Respondent ACORN

INDEX TO WITNESSES D 16 D 128 189 193 D 227 239 301 306 C 102,111 C 150 RD 113 RD 192 RC 115 RC --

Krista Holub Exam. By the Court Kira Gardner-Marshall

204 C -274,294 304 309,314

-RD ---315

-RC -----

7 For Respondent Cortes 8 Douglas Hill 9 Jonathan Marks 10 Rebecca Halton 11 Timothy Ruppert 12 13 14 15 16 P-3 17 P-4 18 19 20 21 22 23 24 25 P-10 P-11 P-12 P-13 P-5 P-6 P-7 P-8 P-9 Number P-1 P-2 Description INDEX TO EXHIBITS Identified 59 68 74 74 116 116 117 118 Admitted 98 98 98 98 116 117 118 119

CD rom Notes from management call from 2006 America Votes Overview Notes of 4/6/06 Notes from east regional meeting Affidavit of Mary Jo Headley Criminal documents re Kansas City, MO Criminal documents re Seattle, WA King County Settlement Agreement with ACORN Philadelphia City Commissioners' meeting transcripts Affidavit of Joyce Haas Affidavit of Monica Moyer Affidavit of Craig Williams Citations of Exh. P-9

120 125 126 126 127

122 125 125 125 127


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Number

INDEX TO EXHIBITS (cont'd) Description Identified Admitted

Private Defendants' A Interview documents, ACORN B Part-time employment application, ACORN C Voter registration training certificate D Fraud policy E Worker batch sheet F Performance investigation form G Problematic card cover sheet Commonwealth/Respondent's 1 Spreadsheet by MIS 2 SURE job aid 3 Spreadsheet re pollbook status 4 Job aid re SURE ID requirements 5 Memo of 4/13/04 6 County election administration preparation checklist 7 Voter registration mail application instructions, first page 8 Screen shot, absentee ballot page 9 Screen shot, first-time voters page 10 Press release of 4/17/08 11 Press release of 10/24/08 12 Affidavit of Robert E. Lee, Jr. 13 Affidavit of Deborah Olivieri 14 Affidavit of Stacy Sterner 15 Affidavit of Monica Dutko 16 Affidavit of Laura Watts 17 Affidavit of Penny Brown 18 Affidavit of Joyce McKinley 19 Affidavit of Sharon Drayer 20 Affidavit of Marion Medalis

133 135 136 136 138 140 141

225 225 225 225 225 225 225

245 250 252 260 264 267

300 300 300 300 300 300

270 270 271 271 272 226 226 226 226 226 226 226 226 226

300 300 300 300 300 227 227 227 227 227 227 227 227 227


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 name. yourself?


Good morning.

Heather Heidelbaugh? MS. HEIDELBAUGH: THE COURT: MR. MILLER: THE COURT: Yes, sir, Your Honor.

And Andrew Miller? Yes, sir, Your Honor. For petitioners. And Al Masland?


Good morning, Your Honor.

And will you be conducting this by

MR. MASLAND: Commonwealth. THE COURT:

Yes, all by myself.

At least for the

All right.

We have a hearing --


Your Honor --

-- in -Your Honor, Kathryn Simpson. I am


here on behalf of the private defendants: Vote and Citizens Services. THE COURT: All right.

ACORN, Project

Simpson, good name.




We're not related though, are we? We are not.


At least as far as we know.

This is the case of Moyer and various -MR. MASLAND: Excuse me. I just noticed that


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there's a bad leg on this chair.

And rather than fall in the

middle of the proceeding, I'm going to switch chairs now. THE COURT: Okay. Equipment time-out. This is Moyer and various

Let me try this again.

parties, including the Republican Party of Pennsylvania, versus the Secretary of the Commonwealth and ACORN. And we

are scheduled for hearing on a motion for preliminary injunction. As a housekeeping matter, I have a motion for leave to file a supplemental brief, and I have a supplemental brief. That motion is granted. Petitioners, how much time do you need? MS. HEIDELBAUGH: Your Honor. I'm going to need several hours,

I'd like to make a -What does "several hours" mean? I'd like to make an opening I anticipate that live Depending on


MS. HEIDELBAUGH: statement.

I have a live witness.

witness on direct would go at least an hour.

the pleasure of the Court in regard to openings, that may bring us to the lunch hour. I'm not familiar with the

Court's preference as to lunch breaks, but I feel certain that I will go into the afternoon. THE COURT: And, Mr. Masland, how much time do you

need for presentation of evidence? MR. MASLAND: Your Honor, we have one, possibly two


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One would be very brief, Douglas Hill from the Jonathan Marks is an Although I have a

County Commissioners Association.

employee from the Department of State.

number of exhibits to get in through him, I would anticipate no more than half an hour on direct examination. THE COURT: We will go until 12:30, and then I have This is not the only dog

other matters scheduled actually. in the show today.

There are other matters previously

scheduled involving substantial interests of citizens of the Commonwealth. I will hear them at 1:30 and 3:00. We can

We can continue later this afternoon. continue tomorrow.

You're going to have to give me some

guidance as to what you would want to do. MS. HEIDELBAUGH: I'd like to be able to put my

full case in, Your Honor, so if it is the Court's preference that we continue tomorrow, I'm more than happy to do that. THE COURT: You'll have a chance to put on your

whole case, but do you want to start at 3:30, 4:00 this afternoon? MS. HEIDELBAUGH: THE COURT: I'd like to start now.

No, would you like to restart at -Yes. Anything is fine with me.


We can restart this afternoon. THE COURT: Any preferences? Your Honor, I have a personal medical



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

issue tomorrow that's going to take me to Indianapolis, so I do have a problem with continuing tomorrow. THE COURT: All right. We'll see what we can do

about finishing today.

But there's going to be a big part of

the afternoon that we're not going to be able to sit here. In fact, we're going to have another group in here. So

each -- each party may have five minutes for an opening statement. By "opening statement," I mean opening statement, not a closing statement. In other words, I will expect you

to tell me what you expect to prove and highlight the issues that you want me to focus on, but it's not time for a press conference or just a general closing argument in exuberant, descriptive rhetoric. This is the way you would do it in a

trial, so please proceed. MS. HEIDELBAUGH: Thank you, Your Honor.

In light of the Court's direction, may it please the Court, opposing counsel, representatives of the press and guests. Your Honor, my name is Heather Heidelbaugh. represent the plaintiffs. I

The plaintiffs before this Court

are voters, a candidate and a political party who represents millions of voters. Your Honor, we have alleged in our complaint quite prolifically, attaching a number of facts, that there has


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been a campaign by ACORN to begin and end a massive voter registration fraud on the citizens of the Commonwealth. It

is a fraud that was planned and organized beginning in 2007. It was a national plan. We have evidence of criminal We have evidence that the

convictions from the past.

organization knew that it lacked training, quality assurance, management oversight. The plan was to flood the offices,

prevent valid voter registrations from being processed. And also, we have evidence, Your Honor, that there has been an absentee ballot program in which the people that were invalidly registered were going to be encouraged to vote. I have a witness today, Anita Moncrief, a former ACORN employee, who will testify about the voter registration program, the lack of training, the lack of quality assurance, the motivations for such a program, the knowledge, the treatment of the employees who were engaged in the fraud and the overall purposes and objectives of the fraud. In addition, I will have affidavits from voters, candidates and a political party who will discuss the immediate and irreparable harm, i.e., voter dilution, possibility of voter fraud based on the massive voter registration. And we will request immediate and specific Based on the

relief in order to move this proceeding along.

Court's previous instructions and the time constraints, I


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will simply close with that, Your Honor. THE COURT: Mr. Masland, you may have five minutes. Your Honor, I'll permit Ms. Simpson

MR. MASLAND: to go next.

I think most of what the plaintiff has said

concerns her, and then I'll close if that's okay. THE COURT: Ms. Simpson? In the absence of

objection, Ms. Simpson may go next. MS. SIMPSON: Thank you, Your Honor. May it please

the Court, my name is Kathryn Simpson, and I represent ACORN, Project Vote and Citizen Services. The sheer illusory nature of the complaint here really needs to be taken into account. The plaintiffs have

alleged a single count of common law fraud against the private defendants, as I will refer to them to distinguish them from the Commonwealth, alleging that perhaps and maybe and if someone goes to the polls on Tuesday and votes when they shouldn't, that the vote of the plaintiffs will be diluted. suit. I think, as you will hear from the Commonwealth, the safeguards are in place; the registrations have been processed. I have witnesses who will testify as to the That has not happened. This is an anticipatory

recruitment, training, supervision and quality control and interaction with the local boards of elections regarding the voter cards, the registrations that were submitted as


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

collected by ACORN. ACORN is one of only -- one of 18 voter registration drives, or groups, throughout the Commonwealth. And the testimony will be that they cooperated; they worked with the department -- or the various election bureaus; they worked with the district attorneys to make sure that when they discovered fraud or wrongdoing, that it was reported. This is not a campaign to do anything but to allow those who were not registered to vote to be able to cast their ballot without intimidation, without any kind of harassment on Tuesday. And that's what this suit is about,

and we are prepared to meet the -- whatever proof the plaintiffs produce. Thank you. Thank you, Your Honor, counsel.


The first thing I would note is that I am appearing for Secretary Cortes, and I am speaking for Secretary Cortes. I am not speaking to the press. I am speaking to Your Honor.

I note that the attorney for petitioner welcomed the members of the press today. I would wish that they were not here

because I do not think that this should be a big media show, but I hasten to say that it could. one. And I wanted to go last, Your Honor, for the specific reason that I think the media show, the circus, the charade is between petitioners and ACORN. And the Secretary I hope it does not become


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

was invited I guess we could say kicking and screaming to this fight. But we should not be here because as a practical

matter, the Secretary has done everything that the petitioners want. We have a SURE system, a Statewide Uniform Registry of Electors. That works. It has worked. And we will show

evidence that almost 90 percent of the voters in the Commonwealth have already had their names entered in the pollbooks and everything will be processed before election day and everything will be ready for the election; the system, the computerized system, has worked. We will also demonstrate -- and I think I did in my brief. I apologize for it being so late. But we'll

demonstrate that the Secretary's interpretation of the voter identification requirements does comply with state law, is logical, and that, in fact, the petitioners' argument that somehow "appear" means to not be present just is illogical. So we are complaint with state and federal law. are doing everything we have been asked to do. And as I We

said, we really should not be part of these proceedings. Thank you, Your Honor. THE COURT: Please call your first witness. I'd like to introduce an

MS. HEIDELBAUGH: affidavit to begin.

It's -- I'd like to pass up to the

Court -- how would the Court prefer I pass up original


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

evidence? THE COURT CRIER: MS. HEIDELBAUGH: I'll take it. Thank you.

This is an affidavit of -THE COURT: marked. MS. HEIDELBAUGH: THE COURT: Plaintiffs' Exhibit 1. Actually wait. We need to have it

You need to stop while she marks it. Thank you.


(Exhibit No. P-1 was marked for identification.) THE COURT: exhibits? MS. HEIDELBAUGH: THE COURT: I do. Do you anticipate there will be many

Are any of them premarked? I apologize. No. Are there


How about for respondents?

any -- do you anticipate a number of exhibits? MS. SIMPSON: are all marked. THE COURT: Mr. Masland, do you have -- do you I have approximately 5 or 6, and they

anticipate a number of exhibits? MR. MASLAND: Your Honor. We've already marked the exhibits, They've all been marked

We have possibly 13.

and a copy for Your Honor as well. THE COURT: How much time do you need to premark


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Because I'd rather not stop and do this while we're -MS. HEIDELBAUGH: I understand, Your Honor. I'll

mark them as I'm going. THE COURT:

I'll do it very quickly; I promise. So I have Plaintiffs'

All right.

Exhibit Number 1, which is an affidavit of Mary Jo Headley. MS. HEIDELBAUGH: Yes, Your Honor. And this is the

chief clerk of the Delaware County Voter Registration Commission. And as the Court can see in paragraph 7 on page

2, she swears and avers that the SURE system does not work in an effective manner and is not always accessible and that she's unable to quickly and properly process new voter registrations. She states that the SURE system was down She said the Secretary of the

between October 10th and 13th.

Commonwealth has been inactive to -THE COURT: contents -MS. HEIDELBAUGH: THE COURT: Yes, sir. Well, before we get into the

-- of the affidavit, let me just make This is in the

sure that there's no problem with this. nature of an offer of proof.

I expect I'm going to see some Is there any objection

of these from the other side as well.

to my receiving this in the nature of an offer of proof? MR. MASLAND: MS. SIMPSON: THE COURT: No, Your Honor. There is from me.

What's that?


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MS. SIMPSON: a hearing.

Without this witness here -- this is

And we have no opportunity to cross-examine this

witness to find out, you know, the basics and the background for this affidavit. If Ms. Headley can't be here, I don't

think her affidavit should be here because I can't cross-examine her. THE COURT: hearsay objection? MS. SIMPSON: THE COURT: Exactly. So this is a -- you're raising a

All right. Your Honor, in Pennsylvania, the In every injunction


jurisprudence of Pennsylvania is clear.

that I've ever tried, affidavit evidence is accepted by the Court in injunctions. In fact, the Secretary of the

Commonwealth, at the motion to expedite discovery, introduced and it was accepted into evidence without objection the affidavit of Robert Lee, a commissioner out of Philly. So this would be quite a surprise to me. This

would be the only injunction that I've ever tried in which affidavit evidence was not introduced, and that's the only time I've ever heard that objection. THE COURT: Why is it not hearsay? Affidavit -- it's not hearsay It's sworn testimony. And in

MS. HEIDELBAUGH: because it's an affidavit.

Pennsylvania in an injunction, an affidavit is acceptable


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evidence in lieu of the witness being live. at all because it's sworn testimony. THE COURT:

It's not hearsay

The objection is sustained. No -- no affidavits are going to

MS. HEIDELBAUGH: allowed to come in? THE COURT:

If there's a hearsay objection,

out-of-court testimony is not going to be received. MS. HEIDELBAUGH: Your Honor, may I be allowed --

would the Court be willing to reserve their ruling and for me to renew my request to introduce this evidence when we reconvene so that I can provide the Court the law that allows these to be introduced? THE COURT: That would be a great idea. I ruled on

this, but I'll reconsider my ruling if you give me some authority. I don't know of anything in the rules of evidence

that allow me to receive this. MS. HEIDELBAUGH: THE COURT: Yes, Your Honor.

I don't know of a special injunction

rule or an exception, so -MS. HEIDELBAUGH: THE COURT: of an offer of proof. Yes. I'll be happy to provide --

I understand that this is in the nature When we get to the permanent

injunction, this person is going to testify, and this is what they're going to testify to. offering it for. I understand what you're

However, if there's a hearsay objection and


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I'm not directed to any sort of rule of evidence that allows me to receive it, I'm going to sustain the objection. MS. HEIDELBAUGH: I understand, Your Honor. And I

will provide you with case law in which in injunction practice in Pennsylvania, affidavits are admitted into evidence despite a hearsay objection. that. I'll be happy to do

So I'll withdraw -- I'll withdraw the affidavit at

this time, to resubmit at a later time. I call to the stand Anita Moncrief. (Whereupon, Ashawnita Moncrief was sworn.) THE COURT REPORTER: for me? THE WITNESS: M-O-N-C-R-I-E-F. Thank you. Could you spell your last name


DIRECT EXAMINATION BY MS. HEIDELBAUGH: Q A Q A Q A Q from? A Alabama. Please state your full -- full and complete name. Ashawnita Moncrief. Can you please spell that for the court reporter? A-S-H-A-W-N-I-T-A. And do you go by a nickname? Anita. Thank you. Ms. Moncrief, where are you originally


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And where do you currently reside? In Virginia. And I'd like to talk to you briefly about your Where did you attend college?

educational background. A Q A Q A Q A Q college? A

University of Alabama. And then what years did you attend? From 1997 through 2003. And did you graduate? No, I did not. What was your major? Political science and history. Did you receive any awards while you were in

I got the president's award for a 4.0 academic

excellence for two semesters, and I got an award by the black faculty and staff for academic excellence when I was a freshman. Q And just real quickly, one last question, did you

engage in any professional development programs in college regarding voter registration? A Q A Yes, I did. Can you just briefly describe those, please? I worked with the college democrats, registering I also was an intern here in D.C. And

voters on campus.

based on my internship, I was offered a position with the


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Organization for Security and Cooperation in Europe. went overseas to Macedonia as an election monitor.

And I

I was

trained by the OSC in election monitoring and mindful awareness. Q Thank you. In 2005, did you begin employment with

an ACORN affiliate? A Q A Q A group. Yes. What was that called? Project Vote. Can you tell the Court what Project Vote is? Project Vote is a 501(c)(3) voter registration They do voter registration, election administration

and voter protection. Q A Q When did you start in 2005? October of 2005. And can you tell us the affiliation between Project

Vote and ACORN? A Project Vote is a sister organization of ACORN.

When I got there, I actually thought I was working for ACORN because that was the only thing I heard about during the interview. But when I got there, I realized that I was

working for Project Vote, and they explained to me the difference between the two organizations. But as I was

there, I learned that there wasn't much of a difference. Q Okay. Why do you say that?


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A 2002.

Because I had an ACORN e-mail address up until I was considered -- I'm sorry, 2007. I was considered

to be part of the ACORN political operations staff, and I was actually a part of the strategic writing and research department with the acronym SWORD, which was basically an internal consulting department for ACORN political operations. So a lot of the work I did, such as the census

work and answering some voter fraud allegations that came from 2004, were actually all ACORN work. It wasn't until I'd

say late 2006 that I actually began doing actual development work for Project Vote. Q Can you describe in 2005 and then sequentially the

projects that you had and the entities that you worked for? A Okay. Starting in 2005, I was with the strategic I handled things such as

writing and research department.

the year end, year beginning, which we call Y-U-Y-B, political operations PowerPoint, which is -- basically takes an account of all the political things that we've done during the year and makes it look really good for the organization when they come together in New Orleans every year. I worked on a lot of census work, and I worked on -- I'm trying to think -- provisional voting. There was a

provisional voting survey that was done by Project Vote, and I helped out with that. mostly. I helped -- I assisted with it


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In 2006, I was pregnant at the time, and Jehmu Greene came on as the national director. She realized that

she actually needed help with the development department, even though she had about three interns. So there was some

discussion among the management staff, and they decided that I would start helping Jehmu. So she had a talk with me, told

me how to process the grant checks, make the copies and what to do when she wasn't there. Jehmu left I'm thinking late 2006, maybe around October or November. Once she left, I was basically the only We had people that And if I

person really in the Project Vote office.

came in and out, but consistently I was there.

wasn't there, I was working from home and I would go in and make sure that everything was okay. They hired Karen Gillette in the summer of 2007. They let me know that I would have to come back to the office full-time -- I had been working from home -- and they wanted me to find a baby-sitter for my new daughter. So working

with Karen was actually a turning point for me because it meant that I was officially out of the strategic writing and research department and I was working on just Project Vote development. And I have to say that's when my work blossomed and I worked on what we call the $28 million budget and donor list, donor cultivation, just basically anything that Karen


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would need. As we started progressing through the work, I would travel with her and help assist her with trainings. And I

started feeling more confident and, you know, actually making ideas and suggestions, so I really blossomed under her supervision. Q A Q When did you leave? January 11th was my last day of 2008. Now, you previously testified a moment ago that you

were involved in an investigation of 2004 voter fraud allegations. A Q Is that right?

Yes. Can you please describe to the Court what that was,

what your work was? A Okay. There were allegations that came out of the And my job was to actually

2004 voter registration drive.

write these voter fraud briefs where I would actually -- I'm sorry -- contact the district attorney offices in the states, research the case. There was a report by a group at the time called ACVR, American Center for Voting Rights, so I had to refute a lot of the claims that were presented in that report. Through reading the report and doing my research, I learned about ACORN employees that -- some of them single moms that had been prosecuted or were being brought up on


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charges for things they had done in, I think it was Missouri, Kansas City. Q Okay. During your work in investigating the

complaints by the ACVR and ACORN's response, did you learn about the voter registration program in ACORN? A Q Yes. All right. And can you -- can you tell us the

difference between Project Vote and ACORN? A Honestly, there really isn't a difference between

Project Vote and ACORN except for the fact that one is a 501(c)(3) and one is not a (c)(3). As far as the -- who does

the voter registration work and how things get done, their -Project Vote is basically considered ACORN political operations. Q A And what is "ACORN political operations"? ACORN political is run -- well, was formerly run by

Zach Polett, and it's the strategic planning arm of ACORN. It looks at contested congressional districts, ballot measures, initiatives like the minimum wage. And it's a way

to build the organization off of these types of drives. So they come up with a plan; let's say minimum wage. So not only are they getting signatures for minimum

wage, but they're also increasing membership and dues-paying members to the organization. Q What was the purpose of the voter registration


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drive as you understood it at ACORN or Project Vote? A At ACORN, it was about getting more members, which Project Vote, there's -- actually they'd It's in

means more money.

say the more cards you get, the more money you get.

the -- in the way they train the -- I'm trying to explain it; the way they train the people for voter registration. to let them know that the cards are tied to money. more cards you get, the more money you get. It's

So the

If people aren't

producing cards, they're wasting your time, get rid of them, get people who are producing. Q it down. Well, let's talk about the money, and let's break You said the purpose of the voter registration Let's break it down. Why does the

drive for ACORN is to get more money.

Let's talk about the organization of ACORN. voter registration drive get ACORN money? A

Explain that.

Because what they do is they look at areas that are

hotly contested or battleground states, like Missouri, Pennsylvania, Ohio. And they know that there is a vast

number of people, because we do the census work -- or they do the census work, that are unregistered African-American or Latino voters. They get -- the Project Vote side gets money from certain liberal organizations or -- to run these voter registration drives. Q It's okay. I'm sorry. I'm nervous.


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And on the ACORN side, they learned their lesson

from minimum wage, and one of the things that they said is that we couldn't use the minimum wage to build the membership even more. So by building membership, those members are They pay I think at least $30 a month. But that's another way

dues-paying members.

That's to the best of my knowledge.

to build power, I want to say, in the communities, but it also builds the power of the organization as well. Q Do ACORN donors increase donations based on voter

registration drives? A Q A Yes, especially in election years. How does that work? What they do is -- let's say that there is a hotly You can get -- now most of the money, of

contested election.

course, for the voter registration program was coming through Project Vote. They had a $28 million budget. So when I talk

about ACORN political, I'm actually talking about Project Vote as well. So I wanted to make that distinction.

Project Vote actually during the years that there were -- like 2004, 2000, any type of presidential election year especially, donations seem to increase. concern of what happens after the election. And there's a So there's a

frenzy to build up money and resources before the election is decided because after, if it doesn't go their way, there could be a serious drop-off in funds.


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Let's talk about the money from the individual

ACORN offices, and let me step back and ask a baseline question. Can you briefly describe for the Court how ACORN

is organized and how its affiliates are organized and how that sort of intersects? And then I'm going to ask you about

how the national is organizationally developed from national to the state chapters to the city chapters and then down to the local canvassers, and then I'll ask you some follow-up questions. A Okay. Well, ACORN is a member organization. It But

has, of course, like you just said, the national branch.

then the local offices are the ones that -- they try to be self-sustaining. I know that when I was working in the D.C.

office, I would hear all the time, if we don't increase our membership, we won't meet payroll. So it was one of those things where their money in the accounts for the local offices was determined by how many members they had on bank drafts or that they were going out in the community and collecting the money from. So that was -- they would also apply for grants. They would do certain programs, like the Sherwin Williams Get the Lead Out or H&R Block, to raise money for the office to run these campaigns. Q Okay. We'll get to that in a minute. So there's a

national ACORN organization, correct?


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Correct. And then how many affiliates do you know of, of

The number changes all the time.

To the best of my The last number

knowledge, it's got to be at least over 170.

I heard was 176, but that's constantly changing. Q So, for instance, Project Vote would be a separate

corporate entity, but it would be an affiliate of ACORN, correct? A Correct. They call it the council of

organizations. Q All right. And then there would be a state ACORN.

Is that right? A Q right? A Correct. Well, often when they say "state ACORN," Yes. Okay. It would -- I'm sorry. Go ahead.

And then there would be a city chapter,

it's more like we're represented in let's say Pennsylvania and then they'll have three or four off-shoot offices, depending on the counties or where there's the most population. It's just like there's the Los Angeles ACORN,

which is considered to be the hub of California, but then you have all these other offices there as well. Q All right. Let's get back to the money. So ACORN

National is interested in voter registration because they get


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

more money from donors.

Now, why is the state or local

chapter interested in the voter registration in regard to money? A Well, a lot of the ways that the local chapters get When there's --

-- they get their direction from national.

when we would get together, we would actually plan things as to, well, if we do this here or this is the political plan for Delaware, this is the political plan for Ohio. So they

would have these political plans already in place so the local offices would know where it was going. They had political directors in these offices, and a lot of times they worked in conjunction with the local. Because of the limited space, you would have political local or national sometimes in the same office. Q And does the local chapter make money on voter

registration? A works. Q All right. And how does the canvasser -- how does I think so, but I'm not really positive how that

the ACORN canvasser make money? A areas -MS. SIMPSON: Objection, hearsay. She has personal knowledge of She has personal knowledge. Now, I've seen information that states that in some

MS. HEIDELBAUGH: this. This is not hearsay.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 document. to you. things.


She's testifying that she has seen


She can testify to that.

If she

has read a document and she has personal knowledge of it, that is her personal knowledge, just as if I have personal knowledge of any document that I'm reading here. referring to a document -THE COURT: Okay. She can't be just a conduit for So I'm sustaining She's not

some document that's not in the testimony. the objection.

You may rephrase your question. Thank you, Your Honor.


I don't want you to refer to what we call hearsay. THE COURT: Don't just tell us what's in a That's what she's saying

Tell us what you know.



Please rephrase your question. Thank you.


What do you know about how canvassers are paid? Okay. What -- what I know is that there has been

problems over the years with how to pay the canvassers. There's some states that do not allow you to pay per card. And so they've actually tried to figure out a way as late as


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2007 to pay people for -- so even with each voter registration drive, they're still trying to figure out a way to pay people except pay by card because that's the motivation. It was always said that if you pay someone $8 an

hour, you know, they might go home; but if you're paying them per card, they're more likely to go out there and get, let's say, 20 or 30 cards per day. Q A Q A Is there a quota system? Yes. And what is the quota system? I'm not sure exactly how many cards per day, but I

know that at the minimum, I've -- I'm aware of at least 20 cards per day. Q A Q A Okay. What happens if you don't make the quota?

You get fired. Okay. Now, is there pressuring to meet the quota?

They put a lot of pressure on what they call the

contractual -- contractual employees, the part-time, temporary employees that are -- understand that they have no obligation after the registration drive to be rehired. They

know that they're only there for that amount of time and that at the end, they might be put on some other campaign; but then again, their work could be reviewed and they could be let go. They would pressure these people to get the numbers


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And they would pressure the political directors or let's I'm trying to think of the

say -- what do they call them?

name, but it's the people -- there's the head -- head organizer and then there's the political person. They never

wanted the head organizer to be the political person because they need someone to look at quality control and still maintain the office as well, so they needed two separate job titles. Q Now, the canvassers, are they two types of people,

employees and independent contractors? A I think so. I think that there are some that are

employed as political paid canvassers that are given a salary. And then there's a period of time where if there

seems to be that they're not meeting goals for that state or whatever, that they might go through a hiring frenzy of hiring part-time employees to kind of fill in the gap. Q A Q A And that hiring frenzy, does it have a name? That's the ramp-up period. Is it called the ramp-up program or period? Yeah, that's what I've always heard it called. I

would sit in on some of the meetings that they had at the political operations retreat that we had in Arkansas, and they talked about the problems that were associated with this period. Q Let's break that down. Okay. First, what is the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

ramp-up program or ramp-up period? A That's a time where there's massive hiring, where

they'll put up flyers, go to community places where they can find people, job banks, social services offices; basically get the word out that they're hiring people to do voter registration and get as many people in the door as possible. Q A And how are those people paid, by check or cash? Honestly I'm not sure. From what I understand, it

has -- there have been cash payments in the past, and there are also people that are paid by check. Q Okay. Now, the 28 million that you referenced

earlier in your testimony as a budget for Project Vote, where does that money come from? A Q A Now, 28 million was the number when I left. Okay. But that money comes from individual donors,

grants, family foundations and our supporting foundations, ones that always support us yearly. And sometimes for big

registration drives, they will increase the amount that they usually give. Q Can you trace that money for me? How does it come

into the organization?

Does it come into Project Vote or

ACORN or some other organizations? A Now, it depends. Some checks would come directly Other checks would go to

to the D.C. office to Project Vote.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the Arkansas office where Zach is, where ACORN political has its base. Those checks were usually copied, and I would have The checks that I received I would copy

PDF access to them.

and send them over to Little Rock for processing. Q And can you describe how the money flows between

ACORN, Project Vote and any other organization like CCI? A The money goes into accounts at CCI. CCI has

dozens -- dozens and dozens of accounts. Project Vote. Q A Q Some of them are ACORN.

Some of them are

Let's stop you for a second.

What is CCI?

Citizens Consulting Incorporated. And is that a -THE COURT: Mr. Murphy?

BY MS. HEIDELBAUGH: Q A Q A Is CCI an affiliate of ACORN? Correct. What does CCI do? What is its purpose?

It's basically the accounting arm for all of the

money, the payments, who gets what, the -- how the organization operates and flows and makes sure its bills are paid. Q A All of that goes through CCI. How do the other entities get the money? CCI makes disbursements to them either directly

into their account or does transfers between I guess the different organizations.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



So let's go back to the canvassers.

How do

they make their money? A Some of the canvassers that are political They are hired with the

organizers are on staff payroll.

understanding that -- they, of course, are usually there through the whole voter registration drive. they're paid salary. So I know that

As far as the part-time employees, I'm Like I said, I have

a little fuzzy on how that works.

knowledge of them being paid in cash, but I know that it's something that might have been from previous years and has been worked on. at this point. Q Okay. Are there -- are there -- to your knowledge, So I can't be positive on how they're paid

are there canvassers that are paid per registration card in cash? MS. SIMPSON: Objection, leading. I asked "to your knowledge."


Overruled. To my knowledge, yes.


And when you went to this meeting, there was

discussion regarding problems with the voter registration drive. Can you give me the topics of the problems, and then First problem

we'll break it down with follow-up questions. with voter registration drives?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


One of the things that they talked about was the Some of the people

quality of people that they were getting.

didn't know how to use basic office -- office systems, which made it very hard for copying the registration card and making sure that they were turning in accurate counts and work -- work ethic issues. That was number one.

We always laugh and talk about the whole jive turkey and paying people in crack; that's the whole ACORN joke. But we did have some problems with people that had

other agendas. Q A Q control"? A At the meeting, they talked about ways to improve How about -- what's the next problem? The next problem was quality control. Describe -- what do you mean when you say "quality

quality control, to make sure that these -- they were finding out which cards were bad. And there was more of a consistent

training for whoever was going to be the quality control person. We were having a problem at the time with turnover. Turnover is a -- is a very big problem in the organization, so they wanted to make sure that training was consistent and ongoing and these people understood exactly what was going on. The thing about it is that it was the same complaint

from the previous registration drive as well.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


All right.

So did the individuals in the room or

did ACORN as an organization realize there was quality control issues? A Q Yes. And --

And from what you could see, were those issues

addressed? A There were ideas that were brought up, and I know But

that they were looking into ways to solve those issues.

I wasn't aware of any concrete plans that came out of the meeting. Q A All right. What were the other issues? There was a

The other issues were training.

consistent concern about training.

I even actually raised

the issue myself that there was a sink or swim type thing going on in ACORN, where you come in and you really don't understand what you're doing and they expect you to move a mountain and then when you don't, they think you're stupid. So I didn't say it in those words, but I was very passionate about it. So I actually talked to Zach about ways

to improve the training department and come up with, like, manuals and stuff that we could actually follow. Q Now you mentioned a sink or swim mentality. Was

there another program at ACORN in regard to errant employees who were caught doing the wrong thing? A Yes.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And what was that called? Internally throwing them under the bus. You know,

it wasn't one of those things that management ever said to me, but we all knew that's what happened. Q Okay. Let's break that down. All right. So you

testified that there was an issue with training.

Now, you

also testified that you were investigate -- that you worked on the 2004 investigation of the voter fraud allegations that were made. A Q A Q Was that in St. Louis?

Yes. Okay. Or Kansas City as well. All right. And what was the organizational

philosophy on training versus employees who would get caught doing fraudulent registrations and the throw it under the bus program? worked? A follow. Yes. They had a training manual that you would Can you put all that together on how that really

It was more about -- they tell people never ask

someone if they're registered to vote because that's a yes or no question; ask them if they voted in the last presidential election; if they didn't vote, register -- register them anyway, which at times can lead to duplicates. It was also said that you were -- you know, send them out in the field, see how they do, send them to an area


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that they'll succeed in, like a place where they'll register a few cards, get them excited about the program, and then go back to the office and close the deal, and the next day, they're out doing voter registrations. So they had very little training. They were given

the information about the fraud, what would happen to them if they did commit the fraud, and they had to sign a piece of paper saying I have read these fraud policies and I understand that I could be prosecuted. paper, that was basically it. Once they sign that

There was not a lot of room

for ongoing training when you're in the middle of a massive drive. Q A Q Was there ongoing training? Not that I was aware of at the time. Okay. Now, what happened to an employee who wasn't

trained who just signed the -- the paper that they had read it and who was caught being engaged in fraudulent voter registration? to them? A They would fully cooperate to make sure that that What happened? What did the organization do

employee was prosecuted and to put -- you know, to make sure that they understood that it was that employee only, not the organization. So they went after that employee intensely to

make sure that they took the brunt of what was going on. Q And did you see that personally?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Yes. Explain what you saw. Through my research on the voter fraud brief, I saw

-- I saw a consistent pattern that over the voter registration drives dating back to 2000, there was at least seven to nine people, sometimes only four, but there were ACORN employees that were always heavily prosecuted. And some of them you could tell from their stories weren't, I won't say the brightest people in the world, but I don't really think they knew what they were getting into. They did commit -- you know, they did do something wrong. They made a bad judgment. But I do feel that they were

caught up in trying to get the money and they were worried about getting fired, so it kind of concerned me a little bit. Q Okay. Now, how -- link that to the throw them What did the organization do in Did they admit that they

under the bus program.

regard to that individual employee?

didn't train them or they had quality assurance problems, or did they say it was all the employee's fault? A No. They always felt that the quality assurance

was adequate for what they were doing and that they -- you know, adults should know better. any leeway. So they wouldn't give them

They wouldn't understand, well, maybe they

weren't paying attention; maybe it's good to reinforce these things over and over. It was just more they did this, they


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

were wrong, we're going to prosecute them, then we're going to move on and keep registering voters. Q All right. And did you see any change

organizationally after the St. Louis convictions? A They were more concerned about attacks. They

wanted -- you know, like I remember in 2006, right after the midterm elections, it was one of those things of do we want to take credit for this or do we want to -- it could open us for attacks, so maybe we should just kind of sit back and don't say ACORN was pivot -- pivot -- I can't use that word. Q A Pivotal. Yes, in getting the democrats back in office. So

there was always concern of the more that they did, they would open themselves up to attacks. So after that, it was

kind of flying under the radar a little bit. Q Okay. Now, did you see the organization change in

any substantial way the training of their canvassers or the quality assurance program after the convictions in Seattle and the convictions in Kansas City and the convictions in St. Louis? A Now, I did see -- when I was traveling with Karen They had, like,

Gillette, I did see that they were training.

more, like, organized training for the political directors. They were actually getting more in -- in classroom time than before. They had set up programs to where the political


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

directors were getting what they needed. As far as the canvassers, I left before they started hiring the part-time canvassers. But I know they

were still looking for ways in 2007 to pay these canvassers to where it wasn't this per card pressure. how that evolved. Q lists. A And you talked about Project Vote getting donor What are donor lists? Lists from other organizations that showed the So I'm not sure

name, address and amount that this person has given to that organization. Q A that? And where did these donor lists come from? Political parties, some of the campaigns. What is

Organizations that did the same type of work, like Those -- we'd get those types

ACT, America Coming Together. of lists. Q

Did you ever receive any donor lists from any

senatorial campaigns? A Q I'm not sure. Did you ever receive -- did ACORN or Project Vote,

to your knowledge, ever receive any donor lists from presidential campaigns? A Q A Yes. Which ones? Kerry, Clinton, and the Obama campaign.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And when was that? Around late 2007. I know that I got the DNC list

and the Kerry list around the same time, so I want to put that at October of 2007. And -- but I'm not sure. And I

think the Obama list came in in late 2007, maybe November. Q A Q A And how did that come in? It was passed on to me by Karen Gillette. All right. And how was it passed on?

It was forwarded to me and with the understanding

that it had come from the campaign. Q A Okay. What was to be done with that list?

I was to take out all the duplicates and get the We were breaking it We were

list together for donor solicitations.

down like California, D.C., New York, like that. also looking for telephone numbers as well. Q

Now, were these people that had maxed out to the

presidential campaign and who could then give additional money to ACORN to do Get Out The Vote work? A Yes. MS. SIMPSON: THE COURT: Objection, leading.

Overruled. Yes. That was part of the plan.


And who hatched that plan?

That was our development plan written by Karen


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Gillette, that we were to approach maxed out presidential donors. Q go for? A Q Voter registration. Okay. Now, was voter registration already being Okay. And what were -- what was the money going to

paid for by something else? A We had other donors that were coming in, but I

think they were trying to still -- when I left, the $28 million budget was approaching 30 something million. So

it was being tweaked, and I guess additional funds or more programs were being added. Q system? A Q A Q A NewVision? Yes. Yes. Can you describe what that is? NewVision is the system that pulls up the accounts Okay. Now, did you have access to the accounting

so you can see what has been credited to the account, deposited and what has been taken out of the account. Q CCI? And is that for Project Vote, or is it for ACORN,

What is it? A All of them. I had the Project Vote access. But

NewVision worked with CCI and ACORN, and they had their own


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

page in NewVision. had their own page. Q Okay.

For each -- in each local office, they

And so did you work with that for the entire

time you were there? A Starting in 2007, late -- no, not late, but I'd say

mid 2007, they gave me access. Q Now, when you first got into NewVision, what were

-- was one of your job responsibilities to reconcile accounts? A Q A Yes. And what was your first task in that regard? There was, like, a $9 million gap in between what

we had in our donor system, Donor Perfect, and what was in the NewVision system. So I would print out deposit records And then I would match

going back sometimes to early 2000.

them up with donor letters, information in NewVision and sometimes recollection of people that used to handle that, depending on how far the information was going back. Q A And were the accounts clear? There were still some questions because we had a

box of stuff we had got from the Ohio office when it closed. I think it was Ohio. But there was so many, like, random

letters and money and checks that were never cashed that there was -- at one point we felt that we had got it as good as it was going to get.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Now, was there active cooperation between ACORN's

political wing and Project Vote? A Q A Yes. Tell us how that worked. We -- we're considered basically the same staff.

Nathan Henderson James was the strategic writing and research department -- he was that director. And then at the same Zach was the

time, he was research director of Project Vote.

executive director of Project Vote and the executive director of ACORN political. All of the organizations and the entities worked together. We shared the same space. It was only starting in

2007 where I started to see a real division between the organizations where they were like, okay, you've got an ACORN address; let's give you a Project Vote e-mail address. Try

to -- they put a door up to keep the D.C. national side -I'm sorry, the D.C. local and the national side separate from Project Vote so it looked like it was two separate offices. Q issue. Okay. I want to go back to the voter registration

Can you give me the names of the people that you

heard discuss ACORN's lack of internal quality controls at management meetings? A I remember during the staff to brief, in Arkansas, I want to say Jarvis Houston.

Jessica Angus was one of them.

He might have mentioned some of the problems with recruiting.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

But -Q A How about Zach Polett or Karen Gillette? I think that Zach was aware of the issues. He

talked about the lack of training, and he told me that I had some really good ideas and they were actually working on some things to change the training department. Karen always

supported me and any ideas I had, so she encouraged me to talk to Zach about that and the diversity in the organization. Q Now, was there an awareness that there were

duplicate registrations that were being obtained by these canvassers throughout the country? A Q A Yes. And what was the attitude about that? I have knowledge that they were striving for at one So 40 percent was okay.

time 40 percent accuracy rate. Q

Now, was there knowledge that there was, I'm going

to use the word a "dumping" of voter registration cards on election divisions throughout the United States and in Pennsylvania? A Q Yes. And what was the attitude of the organization on

the dumping of the registration cards? A Well, I was told when I was working on the

provisional voting survey that they already had a bad opinion


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

of us because we would send so many cards over to them.

So I

was to try to sweet talk them, make -- they said, make them feel like they're really helping you, thank them a lot, and if all else fails, tell them that you're doing a provisional voting academic survey or something. myself. Q call? MS. SIMPSON: the prior testimony. THE COURT: it. BY MS. HEIDELBAUGH: Q Did the organization tell you to place calls to the Sustained as to form. You may rephrase Objection, leading, mischaracterizing You were told to misrepresent the purpose of your So I wouldn't name

election divisions? A Q Yes. And when you placed calls to the election

divisions, did you always represent that you were ACORN or Project Vote? A Q A No. Who would you say you were? Sometimes I said I was doing an academic study. Other times I just

Sometimes I mentioned voter protection.

said my name is Anita and I was doing a provisional voting survey, could they help me.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



So there was awareness at the highest levels

that there was a dumping of fraudulent registrations on the election divisions. Is that correct? Objection --


Sustained as to form. -- mischaracterizing -You may rephrase


Sustained as to form.

Was there awareness at the national ACORN --

national ACORN level or Project Vote that there were fraudulent registrations? A Q Yes. And was there awareness that there was a dumping of

those close to the election time? A Q A Yes. But I'd like to explain that.

Yes, please. They understood that, but they never said to me They just said that they were

that they were bad cards.

upset with us because we had overburdened or overwhelmed the offices, and a lot of times they didn't want to deal with us after that on the telephone. Q Okay. Now, were there something that was called

rogue offices? A Rogue offices?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Rogue ACORN offices. I'm a little confused as to what you're asking. Sure. Did Zach Polett and Karen Gillette know that

there were certain ACORN offices that had higher fraudulent registrations? MS. SIMPSON: THE COURT: Objection.

Overruled. She can't testify --


You may answer. I think that Zach Polett was aware


that there were certain offices that they had to watch more closely and that there might be quality control issues in certain places. If there were any quality control issues,

they were usually brought up between the management staff. BY MS. HEIDELBAUGH: Q A Q A How about -- do you know who Kathryn Barr is? Yes. Who is she? She used to be the communication directors for

Project Vote. Q A though. Q A Where is she now? She is at Rock the Vote. I think it's Kathleen. I'm sorry. I just always called her Kat, but I'm not sure. I think it's Kathleen,

I'm not sure.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



And did you have discussions with her

regarding fraudulent voter registration cards? A Q No. Okay. Now, were -- was the ACORN voter

registration drive in every state in the union? A Q No. What states? And if you can put a name to the

states that the drives were concentrated in, that's fine. A Florida. I remember political plans for Ohio, Pennsylvania, I want to say Maryland, maybe Colorado, New Mexico, It was basically the states that had

but I'm not sure.

either contested congressional seats or what were considered to be battleground states. Q you mean? A Where it could go either way, it was really close; When you use the term "battleground state," what do

and by coming in and registering new voters, it could change the outcome of the election. Q Were there established goals for the battleground

states for the number of registration cards that ACORN wanted to obtain? A Correct. That was usually contained in the

political plans, but sometimes they would tweak those goals the closer it got to starting the registration drive. Q And did those battleground states -- did the local


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

offices and the political directors submit information on an ongoing basis about the numbers they were able to accumulate? A Yes. They were supposed to -- that was sometimes a

condition on the people getting paid, if they sent their batches in when they were supposed to. Q And if the numbers weren't meeting quotas, what

would happen? A They were told that they needed to start firing the

non-performers; if the people weren't performing, then they were basically wasting the people's time and money and they needed to go. Sometimes they would say, check the numbers

before they go out because if they're already bad, fire them right there; don't let them waste your money for the day. Q Did ACORN view submission of fraudulent or

duplicate registration cards as an impediment to their goals? For instance, if they had a goal of let's say 200,000 for a particular state, if they knew that a hundred thousand of them were fraudulent, did that matter for their goal? A I'm not sure. From what I understand, the more --

the concern was more about getting slammed in the press or getting caught with bad registrations. it was affecting the numbers. It wasn't about how

It was more of, you know, oh, So that's more of what

we don't want them to attack us here. I understand. Q Okay.

Were they interested in the -- in the total


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

number submitted versus the valid number of registrations? Which were they more interested in? A Total number. It was always to get to that end

goal, whether it be 56,000 or whatever. Q You testified a moment ago that you would

personally contact state offices, state election division offices. A Q Is that correct? Correct. Okay. And how would you characterize the nature

and frequency of the contacts that you made? A Well, during the provisional voting survey, I was

making contacts either by e-mail or calls quite frequently, sometimes two or three times a week. I did a little bit of

that for the voting fraud briefs, but it was dependent -dependent on the case and whether or not the board of elections had information that would help me. So during that -- 2005, that was very active for me, contacting the board of elections or the secretary of states. After that, not as much because I started getting

different types of projects. Q Now, in addition to the ramp-up period or program,

did ACORN have a program called Muscle for the Money? A Q A Yes. Can you tell us what that is? Well, it means two different things, depending on


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

who you ask. Q Okay. Well, I'm asking you, and I want you to tell

me the two -- the two programs that were Muscle for the Money. A Okay. The first one is the official program, which

is where they calculate the number of -- the cost for registering voters, the cost for GOTV, and how close the elections were in certain states. So it's basically how CSI

works, where they say to get this person to vote, to register this person and get them to the polls, it could cost you $17 and whatever cents; if you go through our program, we have proven methodologies; we know how to get this done; it will cost you this amount. So there's actually a CSI chart that breaks down how much it would cost to drive voters to the polls. And

they would use -- they would say give us the money, we're the muscle, we'll get out there and get it done. Q is CSI? A CSI is Citizens Services Incorporated. It does, I I want to go to the second program here, but what

guess, voter identification, turnout, GOTV.

It's sort of a

consulting firm for candidates that want to use the services to help with them getting elected. Q Now, there was -- CSI was recently in the national

media, correct?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q A to it. Q A Q A Q

Correct. All right. And why was it in the media?

Because one of the presidential people gave money

Okay. Obama.

Which one?

And how much money was given? I've heard 880,000, but I'm not sure. Okay. And are you aware that the original

indication was it was for sound and lighting equipment, correct? A Q I've been told that, yes. Okay. Now, did CSI have sound and lighting

equipment? A Q A No. What does CSI do? From -- from the way I understand it, because I

made the flyer for the first CSI program that they did, it was voter identification, turnout, GOTV, calling voters, getting them out to the polls. Q Okay. What is the second, unofficial Muscle for

Money program? A That's what I learned in the local offices. That's

where -- let's say the D.C. office where I was.

They would

be given a project to go work on, even if they didn't have


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

interest in it.

At the time, even after I was fired, I was

working with ACORN, going to barbecues, doing other stuff with D.C. local. They got involved with a group called the Carlyle Group. They were paid by SCIU to harass a man named

Mr. Rubenstein, and they wanted me to go out -- the D.C. local did, wanted me to go out and break up a banquet dinner, protest out in front of his home. But the local -- D.C.

local did not have an invested interest really in messing with the Carlyle Group. SCIU to do this. It was because they were paid by

And it was always referred to as Muscle for

the Money because they would go out there, intimidate these people, protest. They did it in front of Sherwin Williams. They did

it at H&R Block, where -- H&R Block was a target for years. And instead of, you know, reforming the way they did the rapid anticipation loans, they ended up giving money to the ACORN tax sites which paid for new computers and money to run these tax filing sites around the country. Q Okay. Let me rephrase here. We have the official

Muscle for the Money program which is you give us money, we go out and get out the vote. A Q Yes. And then there was the unofficial Muscle for the Is that right?

Money program, correct?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Yes, where the locals were being used to kind of --

their protesting was used to get people to negotiate. Q Okay. So let's break this down. A company would

be -- can I use the word "targeted"? A Q A Q A Q A Q A Q A If you want to. Okay. Yes. And then the company would pay money to ACORN? Yes. To get the protesting to stop? Yes. And what did you -- what did you call that? Oh, Muscle for the Money. And did you have any other names for it? Protection. We were very -- not to be flippant, And they would be protested?

but we were just always very sarcastic about it in the offices. We knew what was going on. And it's not that we

thought it was funny, it was just one of those things that we talked about. understand. Q So the -- so what you called the protection program That's why I said it like that, so you

occurred against Sherwin Williams, Jackson Hewitt, H&R Block, the Carlyle Group and any other groups? A I'm trying to think. I know Money Mart, they were So sometimes it was

given the loan shark of the year award.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to help the communities; but a lot of times, especially in the instance of the Carlyle Group, there was not a real benefit for the office besides the money that was being given to them by SCIU to do this. Q Now, in regard to the voter registration program

versus the second, unofficial Muscle for the Money program, okay, was there an organizational philosophy to try to divert attention of the media away from the unofficial Money for the Muscle program (sic) to the voter registration effort? A I won't say official, but it was one of those

things where if they were going to look at something, they would rather look at voter registration because there was -they're used to fighting voter registration. We have prepared responses that everyone was given to say that voter registration fraud doesn't really happen, voter IDs affect people. all given to say. And at the meeting in 2007, there was actually a conversation about how you can make sure everyone was on the same page of how to respond to that because those responses like, oh, you don't want African Americans to vote or you don't want minorities to vote or things where it's very hard to come back at and they were good at fighting that. Q Okay. Let's break that down. So you attended a Is It was certain spiels that we were

meeting in which you were instructed on a talking point.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that right? A Q Yes. And do I understand your testimony correctly that

despite the fact that you, in fact, had worked on 2004 voter registration fraud issues, you were instructed to say it didn't happen? A The way you're putting it, but I guess what I'm

saying is that everyone in the organization was given a -talking points as to how to respond to allegations of voter fraud. media. But they much preferred that you run it through the But sometimes they said that you would get -- members

or whoever would get caught out on camera, so they wanted to make sure everybody was on the same page of what to say. So

they even thought about passing those out to the organization as a whole, but most people in political had a copy of the voter fraud talking points. Q Now, was there also a talking point that if the

organization was accused of voter fraud registration or its employees were found guilty, that the response was to be that the person accusing them of that was trying to suppress the vote? A That was one of the talking points as far as it was

not really voter registration fraud, it was usually just a lone employee acting alone in doing this and ACORN was going to prosecute them to the fullest. And most -- of anything,


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

it had to do with employee wrongdoing, had something to say in there about how we're distancing ourselves from them, they did this, let's get them. Q A And did race play a part in this? I guess it would have to because a lot of people

that they were registering were Latino and African-American, low income voters. Q Was there an organizational talking point that

those who objected to voter registration fraud were to be accused of voter suppression in a racial context? A document. There was -- I'm trying to remember exactly the It's been a couple years since I saw it, but I

know that it had a couple of good points to bring up about, okay, this is -- this is some responses to voter fraud attacks. And I remember reading some things, but I'm not

positive that it stated in there to bring it up as a racial issue. Q Did ACORN and Project Vote target particular

individuals or entities to solicit donations? A Q A Q Yes. And which ones were those? As far as who are the donors or -Sort of the -- you know, I think you testified

there was donors who had lapsed -- who had maxed out for presidential race. That's one category.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Oh, okay.

Maxed out presidential donors.


they call the billionaires club, which is, like, Herb Sandler and the Rockefellers. And you've got the millionaires club,

where it's, I guess, like, Patricia Bowman and the Bowman Foundation, Wellspring, Sykes, what we call the usual suspects in the liberal world. Q Okay. And did you provide me with the presidential

campaign of Senator Obama's donor list? A Q Yes. Okay. As well as Kerry and Clinton. This is a CD-Rom of that donor list. Okay.

Is this the donor list that was printed that you provided to me? A Yes. MS. HEIDELBAUGH: into evidence. THE COURT: How is it marked? Exhibit 1. Okay. I'd like to admit this


Well, I have an Exhibit 1. You -- you reserved ruling on

MS. HEIDELBAUGH: that, and I withdrew it. start again. THE COURT: Fine.

So I thought you might want me to

Let me give that one back. I can do 2 if you like.


Just as long as we don't end up with

two exhibits that have the same number.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1.


I withdrew this.

So this will be

BY MS. HEIDELBAUGH: Q How did it come -THE COURT: Hang on just a second. It's an Excel spreadsheet. It's


a massive document that -- it's very difficult to print, so it's -THE COURT: when you mark it. MS. HEIDELBAUGH: THE COURT: Yes, sir. Let me just ask you to do something

Put a date on it and put your initials

on it so we know who's done this. MS. HEIDELBAUGH: co-counsel do that? THE COURT: Sure. That's fine. I really Yes, sir. May I have my


Excuse me, Your Honor.

don't care who's on that list or who isn't on that list, but are you going to have copies for counsel? MS. HEIDELBAUGH: Yes, sir. Yes, sir.

We'll attempt to get that printed today. BY MS. HEIDELBAUGH: Q How did it come to your attention that the

presidential campaign was in contact with ACORN and Project Vote?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


In late 2007 -- I want to say it was November -- I

was in the Project Vote office by myself, and I received a call on the main line. I answered the call, and a caller And he

identified himself as being from the Obama campaign.

wanted to know was this the same Project Vote that Obama had worked with in the '90s. was. I had been recently told that it

So, of course, I said yes, and I was very excited. And I took his information. And I passed it on --

well, I sent an e-mail to Karen Gillette, Nathan Henderson James, I want to say Kevin Whalen and Zach Polett -- I think that was everyone I sent the e-mail to -- letting them know we had been contacted and someone wanted them to get back to them as soon as possible. Q A Okay. And what happened after that?

I didn't get any official contact that they I was told that if there are any

contacted anyone.

inquiries, that they had needed to go through either Kevin or Zach, mostly Kevin because he handled those type of things. Q A Did you get in any trouble for writing that e-mail? Well, I think that I probably shouldn't have It was one of those things that I should have But it wasn't

written it.

just called, and that was the feeling I got.

like anyone was being mean to me, but it was the impression. Q A And who gave you that impression? Karen.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Did you, yourself, work with the donor list

acquired from the presidential campaign? A Q A Yes. I worked with it extensively.

And what did you do with it? Well, there was a ton of duplicates because a lot So to -- the list is huge.

of people gave more than once.

So in order to break -- get the list smaller, we were trying to get out the duplicates. That was really hard to do. And

I was just really getting frustrated because we were always trying to get numbers and other stuff for these people because I think we were going to set up some meetings for Zach or something to do with it, and I know there also might have been a mailing that was going to go out. Q A Q Okay. What is D duping?

That's where you remove the duplicates. And why were you ordered to D dupe the presidential

donor list? A So we could use it for donor solicitations and it

would be more manageable because it's really not manageable the way it is. Q A And what was done with the list? I went through and broke it up by state. I broke

out California donors.

I also looked at celebrities and

Hollywood people, professors, and I broke them into separate categories because, you know, there were -- people were also


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

looking for a spokesperson.

We talked about Barbara We talked about

Streisand because her foundation gave money. Bruce Springsteen.

So we were trying to see who on that list

might -- we have contact information for that might want to work with us or at least give money to us. Q A Q A Q A Who instructed you to do that? Karen. Karen Gillette? Karen Gillette. Okay. And did you, in fact, work with that list?

I worked with that list along with another person, She was my counterpart on doing this.

Nicky Paxton (ph). Q

And so give us a brief description of the type of

things that you would do with that list. A Okay. I would go through the list. I think that

when I broke out the California donors, I went through, sorted them, organized them I think by last name or profession. I'm not sure which one. And I would break out

smaller lists and send that to Karen. And it was just donor cultivation. At that point,

before I was fired, there was not a lot that we were doing with this. We were getting ready to do stuff. We had just They were

ordered a ton of stationery and a lot of glossies.

the ACORN glossies, and then we had the exact same glossies with Project Vote on them. And then we were going to send


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

them out as solicitations. Q A Q And do you know if those went out? I think so, but I'm not sure. Okay. Can you tell me again -- and if you told me

this, I apologize, but what is the intersection between CSI, Citizens Services, Inc., and Project Vote and ACORN? they intersect? A Well, like, I know that when Karen was hired, they How do

told me that she was going to -- she was coming on but she would be through CSI. I know that our main person, which I'm

not really sure what his title is but I always called him the money man, Jeff Robinson was through CSI. And Nathan

Henderson James, he was the research director for Project Vote. But he transferred from Project Vote's checkbook over So the main managerial people were paid

to CSI's checkbook. through CSI.

And I think that after Zach left Project Vote,

he's now with CSI. Q A Okay. But what did CSI do? They were -- I'm not

Voter identification turnout.

really sure how they implemented it.

I know I made the But as far

flyers for it, and so I understand what they did.

as how it was completely separate from ACORN, I know it was a consulting agency, but I'm not sure how they implemented the work that they said they were going to do without using the political directors or the canvassers that they already had


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

on hand. Q A together. Q A Q

I'm not sure. So did they work with ACORN? Yes. All the affiliate organizations worked

And did CSI work with Project Vote? Yes. Okay. And does CSI receive money from outside

groups, including political campaigns? A Q Yeah. Okay. From my knowledge, yes. Now, was CSI the entity that would quote the

cost on the registrations? A I think so, but once again, I'm not sure how they

implemented that. Q money? A There's a -- I don't know that for sure. There's Okay. Now, do you know whether CSI had surplus

an understanding in the organization that certain -- it's hard to tell which -- which accounts have what because CCI (sic) is -- it's not run very well. you get paid twice. And there's -- sometimes

Sometimes you don't get paid at all.

Sometimes the accounts will show negative a hundred thousand dollars, and then magically the money is in there next week. So there's really no way at this point without a forensic audit to tell what are the assets of any one of the ACORN entities. So I couldn't give you a good answer on that.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q overseas? A

Now, did any of the surplus, to your knowledge, go

To my knowledge, there may have been money that

went to ACORN International. Q Now, if a client paid CSI, what -- what typically So,

was the services that they got for paying money to CSI?

like, for instance, when the Obama campaign paid 800 some thousand dollars to CSI, what service were they to get? A From the way the flyer states that I made up, they

would get -- let's say they would try to get a certain number of people to commit. Let's say they'd hire a canvasser and

this canvasser is paid to get the 50 people in his area to the polls. If they didn't get them to the polls by bus or

whatever, make sure they get an absentee ballot or somehow get those people to the polls. Q Let's talk about absentee ballots. Okay. Now

let's talk about first you've discussed that there are many duplicate registrations filed. A Q A (Nodding.) You have to say yes or no. I'm sorry. Yes. Your Honor, I'm going to interpose an This is a very specific motion for Is that right?

MS. SIMPSON: objection at this time.

preliminary injunction involving -THE COURT: This is a relevance objection?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



For Pennsylvania -Overruled.



Thank you.

Let's talk about absentee ballots. Yes. Now, you testified previously that there were many

duplicate and fraudulent registrations that were filed with the local election offices, correct? A Q Correct. Okay. Now, to your knowledge and in regard to what

you know about the ACORN register -- ACORN national offices, how did the fraudulent registrations intersect with absentee ballots? How did -- how did the organization deal with those

two things? A Well, they understand -- I know that there was some

talk with the EA, election administration people, that there was a high rate of fraud in our absentee ballots and they needed to plan accordingly for that. sure what that meant. And then I know as far as their voter database, they had -- they have what they call the V base where they would put this information in. They would contact these If they So That -- I wasn't really

registered voters to see if they were going to vote.

-- they would also see if they needed an absentee card.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

they would have numbers of let's say 295 people in this county need an absentee ballot or these number of people might need a ride to the polls. So it was not only voter

registration, it was also voter contact and following up to make sure these people got to the polls. Q A Q I'm going to hand you a document. Okay. I put a tab there for your convenience. And

there's a shading, Your Honor, of where I'll be referencing on page 2. I'm handing you a document. document? A Q A Q A guys. Q page 2? A Q document? A Q Yes. All right. And why did you shade it? Starting with "JR"? In the part that you -- did you shade this Okay. And can you tell me what it says there on Yes, I do. What is it? It's notes from a management call from 2006. Okay. And how are you familiar with the document? Do you recognize this

I had access to it, and I turned it over to you


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Because it was relevant to absentee ballots. Okay. Can you tell the Court what that references

there, please? A Q What it references or read it? I'd like you to read it, and then I'd like you to

explain it, if you would be so kind. A "Universal absentee states give us an opportunity That was stated by Jeff Robinson.

to do an absentee touch."

Mike Slater -- Michael Slater comes back and says, History of fraud in absentee balloting and we need to incorporate into -- we need to incorporate into the way we design the program. Jeff Robinson says, "Absentee voting works well for unlikely voters in some states." Q A Okay. What is your understanding of that?

That they are aware that there is a problem with

absentee ballots and they were coming up with some type of plan to address that. I'm not sure based on this information

what type of plan that would be. Q Okay. Explain to us your knowledge of how a

fraudulent registration can turn into a fraudulent absentee ballot. A Well, if one of the cards is not caught either by

ACORN or the board of elections, that person would be on the ballots. If they did not want to present themselves in

person, they could get an absentee ballot very easily, vote


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and just mail it in. Q Now, is ACORN aware that absentee ballots are

fraudulently voted? A Q Yes, they are aware that that happens. Okay. And are they aware of that, in essence, in

relation to the fraudulent registrations that are filed by ACORN? A the dots. I'm not really sure how -- how they've connected I know that they've said that they've had to plan

accordingly for it, but I'm not sure if that -- what that means. So I can't tell you what management might have been

thinking. Q Okay. That's fair. Now I want to step back a bit.

When a canvasser obtains a registration -A Q Yes. -- from an individual out in the field, can you run

through for the Court please what happens to that actual registration in the ACORN organization? A Now, I know that it's brought back to the office.

It's supposed to be checked by whoever is doing quality control. They usually will call I think about 20 percent of And if they do find it to be fraudulent,

the person's batch.

they're supposed to call the whole batch and -- just to make sure. And they're supposed to look for similar handwritings Once that --

and things like that.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q field? A

Do you know if that was always complied with in the

I know that there have been problems with people

missing cards before and things slipping by and not being called until it gets to the board of elections. Q A Q All right. They try to tag them and separate them, though. Now, after that process, then do the registration

cards get inputted into a database? A From my understanding, yes. I think that they get

inputted in what they call the voter contact database, and I think that's used for GOTV. Q A Q Okay. GOTV is?

Get Out The Vote. Thank you. Now, is there an ACORN organizational

plan to contact those people that have registered? A I think so, to make sure that they are -- that they

get on the rolls and that they stay on the rolls. Q And are they called -- is there a contact plan?

You know, do they contact twice or four times or something like that? A I think they get a certain number of contacts

before the election day, especially if they're -- they have an active APAL, the ACORN Precinct Action Leader program in that state. If they have an active APAL program, they would


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

probably get more contacts. Q A Okay. Describe what the APAL program is.

The APAL program teaches community people to be

leaders, to be the respected one in their community and to go out and get people registered to vote. they're volunteers. They're not paid;

They say, you know, bring five people

and that person brings five people and then they bring five more and -- to get the whole community involved. action leaders. So precinct

And they usually are put into certain areas

where they feel like they'll do the most good, and they use those for Get Out -- Get Out The Vote as well. Q And what is the Get Out The Vote effort? How many

contacts are made of a person who's registered through ACORN? A I'm not sure. They have a -- they do have a

program to -- a certain number of target contacts, a number of -- either by door knocking or calling. But they do have a

certain plan as to how many people will be contacted during -Q A Q A Q So those names are kept in an ACORN database? I think so. Okay. No. And so if, if a fraudulent registration is obtained Do you have that ACORN database?

or a duplicate, would that person then be contacted according to the APAL program to vote?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I think so.

I think that's how the ACORN -- the

APAL program works.

But a lot of this knowledge was gained

from me trying to move ahead in the organization, so there are some holes in my knowledge because I wasn't fully trained. Q Okay. And are they also -- are these people also

contacted and encouraged to submit absentee ballots? A If they can't make it to the polls, then yes, they

are definitely encouraged to submit absentee ballots. Q Is there any separation between contacting those

who have committed fraudulent registrations to encourage them to vote absentee and -- versus only contacting the valid registrations? A Well, I know that if they're considered to be

fraudulent and ACORN catches them, then they are automatically separated out from that. But if they are not

caught until later by the board of elections, there is a chance that someone could -- who registered to vote illegally or registered twice could be contacted. But once again, I'm not really sure how that works. Or if they are found to not be on the rolls, they might be contacted to figure out why, if they submitted a bad card or if they just need a signature or something to get them on the rolls. Q I'm going to show you another document. Now I


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

talked to you a moment ago -- I'm showing you Plaintiffs' Exhibit 3. A Q A Are you familiar with that document?

Yes. How are you so familiar? This is also one of the documents that I've turned

over to you. Q A Q A Was it a document that you had? Yes. Okay. I had access to this. And what is this document?

It talks about America Votes and some notes from a

meeting that took place I would say. Q Okay. And in regard to the cash issue, what does

it say there about cash under Political Money Rules? A Q A The first -- I think that's the first one? Yes. We prefer that political money go to us in the form

of a vendor, which would be CSI, our for-profit business, which doesn't have to report the cash because it's a business, like the phone company. Q A What is the general purpose of ACORN? It's supposed to be to build power in the

communities and give people a voice that aren't otherwise heard. Q here. Okay. And I'm going to hand you another document Can you tell

I've handed you Plaintiffs' Exhibit 4.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

us how you recognize that? A This is also another document. This one was -- I

had access to, and I turned it over to you. Q A What is it? It's the notes from the east regional meeting that

took place after the ACORN scandal or the -- well, it's what they call the ACORN transition. Q A What is "the ACORN scandal"? Dale Rathke, Wade Rathke -- Rathke's brother,

embezzled close to a million dollars from the organization. And it was covered up about eight years ago, and it finally was brought to light this year. And he was fired as chief

organizer, and now they're rebuilding the organization. Q A Q A Are you part of that? The rebuilding process? Yes. Sort of, kind of. It's kind of hard to explain.

But I do have people within the ACORN organization who support me in my endeavors, and they do feel that bringing the truth to light is very important. Q You said the purpose of ACORN was for low and Is that right?

moderate income people to speak out. A Q Correct. Okay.

And on this document that I've provided you,

what was the last thing that it says there about what's good


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

about ACORN? A Allow issues to drive people to MBRSP. Fighting capitalism. I'm not

sure what that means.

And they don't

speak for people, give opportunity to speak out for themselves. Q So one of the good things about the organization is

the organization doesn't speak for the people, it gives people the opportunity to speak out for themselves. right? A Q Correct. And then one of the other things that's good about Is that

the organization is that it fights capitalism? A Q A Correct. And did you agree with that? No. MS. HEIDELBAUGH: Just a moment, Your Honor. I'm

trying to go through my notes here and wrap up, Your Honor. Let me make sure I hit the points that I wanted to. BY MS. HEIDELBAUGH: Q You talked about St. Louis. What was your specific

involvement with the St. Louis voter fraud convictions? A I just did research for the voter fraud briefs. I think there was one for New So I did a We

did them for Missouri. Hampshire.

There's one other I can't remember.

lot of research and made very concise bullet points of this


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is what happened, this is what ACORN did to rectify the solution -- the situation, which usually was prosecution. Q Now, did you become involved with or become

knowledgeable of a particular ACORN employee who was convicted of voter fraud in St. Louis? A Yeah. I remember reading the story about a mother

who was going to jail. MS. SIMPSON: Objection, hearsay. It's not offered for the truth of

MS. HEIDELBAUGH: the matter asserted.

It's actually offered for the I'm building that

motivation as to why she's here today. background. THE COURT: Overruled.


About a mother that was prosecuted That was the first

and that she was going to go to jail. time that I tried to speak out.

I contacted a web site run It's called

by the Employment Policies Institute. in June of 2007.

And I tried to tell them -- this was, like, And I was like, there's so much that I want He told me that

to tell you, but I'm afraid to lose my job.

he couldn't make any guarantees to me and that I should find another job and call him back. BY MS. HEIDELBAUGH: Q Why did it bother you that this woman was convicted

of voter registration fraud?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Because I honestly didn't think that she really

understood that her life was going to end when she started working for ACORN, that she was going to go to jail. I don't

think that was ever her intention and that she got caught up in something that was way bigger than her. And honestly, it

made me think that it could happen to any employee of ACORN. Q A Why? Because they don't support you. Once -- if you're

out there on that limb, you're out there by yourself, especially with something like voter registration. There's But as

other stuff that you can do to put you out on a limb.

far as voter registration is concerned, I felt like they should have been standing right out there with them. Especially if they weren't trained or equipped to get out there in the field, they never should have been out there. Q All right. So the -- if I can summarize and tell

me if I'm wrong, the reason you felt bad about this was because the woman wasn't trained, she was then prosecuted and she wasn't supported? A Yeah. And she was a mom and she was going to be

taken away from her kids. Q A Q A Was she a low to moderate income individual? Yes. Did you find that to be hypocritical? Yes, honestly I did.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


All right.

And beginning -- what time -- when did

this occur? A I found out about it I want to say -- it probably I continued to look for a job, I applied so many And I So

would have been late 2005.

but it's really hard to get out of ACORN.

different places for two years and couldn't get out.

finally was to the point where I didn't know what to do.

I contacted them in maybe I want to say June, but it might have been May of 2007 because they were about to -- we were about to start another voter registration drive. Q A Okay. And what were you fearful of?

That there would be, like I said, seven to ten

people that would probably go to jail this time, maybe more. Q Now, why are you coming forward? Why are you

testifying? A Because I want the truth out. Honestly, a lot of

people think I have a vendetta, but even after I left ACORN, I was still trying to be involved in the act because I believe that the local offices do a lot of good. Local

offices where the people are involved and you see them every day and you're there -- like, when I worked in D.C. office, you would -- you'd stumble over some member, and there was just this type of informal environment. lot of the work was done. So I don't think ACORN is a bad organization. I And that's where a


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

feel like they have gotten into a lot of areas that was not -- that they weren't meant to be in. And because we're in

these other areas, we're losing focus of what's really wrong with these communities. There's so much that needs to be So

done, and we're over here when we should be right there.

that's why I'm here, because I don't want ACORN to go away; I just want it to go back to what it's supposed to be. Q A Q A Q Now, has your name become public on the internet? Yes. Before today? Yes. And after your name became public, did you receive

any calls which caused you concern for your safety? A Yes. I was contacted -- well, I've had a lot of I was also

hang-ups and strange calls in the past week.

contacted by a lady that used to work with the D.C. ACORN, and she tore into me on the phone, just vicious attacks. told me that I was after Obama; I was trying to destroy ACORN; I was stupid and idealistic. And she kind of made me She

cry, but it was okay because I understood that she was just mad at me. I've also been contacted by employees that still work at ACORN. And they've told me that there's been a lot

of pressure; it's really bad in the office; and that, you know, they've asked -- they've been asked to tell me to back


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

off and to step down. And I told them I couldn't do that. And so then I

was asked a bunch of leading questions like, well, what are they giving you; are they offering you a job? And I said no

one is giving me anything and I didn't ask for anything. Q A How did you come to meet me? I contacted you once I heard about the lawsuit

because I felt like this might be a chance for the truth actually to get out. I've been working previously with the

New York Times, and they were exposing some truths as well. Q A Q A Did I contact you first? No. And how did you find out about this lawsuit? Through one of my contacts with -- I was talking to So

the New York Times on basically a daily -- a daily basis.

when the story broke out, I knew about it, and I was talking to the reporter about it as well. Q Times? A Q A Q ACORN? A She prepared the one on the embezzlement. There Yes. And who did you speak with? Stephanie Strom. And what articles did she prepare in regard to Were you a confidential source for the New York


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

was one exposing Drummond Pike as the donor that paid off the debt that Wade -- I'm sorry, that Dale had created. There

was another one on the board working to give properties or entities to Wade in order to make him go away. And I think

there might have been -- oh, another one about the lawsuit filed in New Orleans for access to the books. Q A Q A Did you intend to become public? No. Okay. Yes. Are you concerned for your personal safety? I've -- when I was working at my other job,

American Rights at Work, I had someone call me and tell me I needed to back off because they were trying to fire me and get me to sign a confidentiality agreement that would have covered them and their allies, which would have been ACORN. And at the time, I was digging my heels in. I told my union steward that I had received this call. And she told me that I was looney and that if I kept

making up these things, no one would believe me in anything. I was then advised to -- we modified the confidentiality agreement. And I was advised if I didn't accept it, the

union would no longer support me and I would be out there by myself. Q ended? A All right. In 2007, we got a Pitney-Bowes machine Can you tell the Court how your employment at ACORN


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

into the office.

I had been lobbying for one of these for a We didn't have any way

long time because we're a big office. to do mail.

When I got the machine, they said that -- they

sent me this little form to -- for some reason when they sent the machine, they set it up in my name. form. They sent me this

And it said Purchase Power; you can put your mail,

your postage, your supplies all on your Purchase Power card. I thought it was something through Pitney-Bowes. didn't understand that it was a Visa. When it came and I I

realized it was a Visa, I kept it in my wallet, and I didn't use it. But then I began to need money for getting back and When I couldn't I

forth, and so I began to use it for a move.

get the U-Haul, I used it to pay the gas for the U-Haul. used it at Wal-mart, grocery stores for food. credit card.

So I used the

It was in my name, so I had to sign for it.

For personal expenses -Q Let me stop you. What was your rate of pay at that

point from ACORN? A 27,000. Q A Q A All right. Where did you live? Twenty-five thousand, five -- I think it was almost

I was living in Baltimore at the time. And what was the problem with your apartment? I was staying in a townhouse because that's what we

could afford, but the landlord wasn't taking care of the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I had moved already three times in 2007.


there was these rats.

I'm embarrassed, but we had rats the And they would come up into

size of cats in the basement.

the kitchen at night, and I would have to use a BB gun to go downstairs to get my daughter's bottle. quickly, and I was terrified. to do. I went to them, and I asked them. I said, when I So I needed to move

And I didn't really know what

came onboard, you told me that because of my qualifications, that I might be able to get a higher salary. So I asked them

if that would be possible, because I really needed the money. And they told me that it wasn't going to happen, everybody was paid on the same scale by the council. decision, and I started using the card. So I made a bad

And once I started

using it, I kept using it for gas and food and other stuff. Q A think. How much did you charge on the card? I'm not really sure. I made a $525 payment, I

That's when it was first alerted to the card because

it came back on my checking account that I had made a payment. I called to get a bill, and somehow they sent the And that was when

bill to either Little Rock or New Orleans. I was found out.

So they kept my final payment, which was about $1100. 3,000. So what probably would have been left -- I've heard I've heard 1500. But I've never been told exactly


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

how much was the end result. Q the card? A Q Correct. All right. But you don't have a final -- you've All right. So it's possible you billed 3,000 to

never been given an accounting? A Q A Correct. And how much did you repay? With my final paycheck and the payment I made, it

would have been about $1600. Q All right. Now, have you been convicted of any

crime in regard to this incident? A Q A Q A Q No, I haven't. Have you ever been convicted of a crime? No. Okay. Are you willing to repay this money?

Yes, I am. Okay. Have you asked for an accounting so that you

can repay it? A I asked -- when I first got fired, I asked to find And on the term memo they sent me, it

out what was owed.

said "to be determined," that the amount was undecided. And because I lied -- I didn't -- I was scared, so when they asked me about it, I lied. And I felt really bad, And I was, you

so I did -- kept contacting my supervisor.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

know, trying to let her know that I wasn't a bad person and I really -- you know, the things that I did believe in and the things that I do -- I did were still true but I did make a bad mistake. So I kept trying to contact them, and they knew where I was. When I moved to my new job and I saw her, I

actually gave her my new card so she would know how to get in touch with me. Q A Q ability? A Q A As best as I can remember, yes. Are you sorry about what you did with that card? I am really sorry. I've always been sorry, and And have you lied today? No. Have you told the truth to the best of your

I've tried to let them know that I -- I'm really sorry. Q Is any of your testimony today in the form of a

vendetta for being fired for doing something wrong? A Q No. Now, on the voter registration program, are you

aware that ACORN National says that they have to turn in all registrations, even the ones they know to be fraudulent, because the law requires them to do that? A Q I've heard that several times. Okay. Yes.

Are you aware of whether the law requires an


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

organization to turn in fraudulent voter registration cards? A I assume that it was because they would always say

that's why they separated them out and, you know, put the cover letter on them because they had to turn them in. Q that? A Q No. Okay. Now, you talked about how voter registration So you don't know whether Pennsylvania law requires

fraud can turn into voter fraud through absentee ballots. Are there other ways in which voter registration fraud can turn into voter fraud? A Well, I guess that if a person is registered in one

county and they're -- well, they're registered in two counties, you can always vote in different places. Q And how about multiple registrations on the books?

Can those be voted? A Honestly I don't know. I would think that the But if they didn't,

board of elections would catch it.

there's a possibility they could vote. Q Is ACORN as an organization aware that those types

of fraud in the voting process can take place as a result of fraudulent voter registrations? A I think that they are aware, but the official

position is that voter fraud really -- in America really doesn't happen.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Are you aware that it does happen? Yes. Are you aware that ACORN has entered into a consent

and settlement agreement to increase its training, its quality, its management with the prosecutor in King County in Seattle? A Q Yes, I am aware. And were you aware that that was signed by Maude

Hurd, the president of ACORN? A Q Yes. Have you ever received any information from ACORN

that they're aware that people are paid for votes? A Q A Q Paid for votes? Absentee -- in the absentee ballot program. No. Okay. In regard to the -- your knowledge of the

accounting system, was money wired into ACORN? A Q A Yes. So it was not a check. Yes. Is that right?

Sometimes, and especially into what we call

the vote account, which was Project Vote's designation, sorry, in CCI. I would see incoming wires from the I think -- not family I think sometimes And other

Rockefeller Family Foundation.

foundation but the Rockefeller Fund.

Vanguard Charitable Endowment would also do wires.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

times there would be things that would say stuff like "general income," and it would just -- wasn't sure where it was coming from. Q Okay. Was there money that was donated in which

there was no source to the money? A That was -- yes. That was part of that whole donor

reconciliation process. Q Now, it's your understanding there's different tax

entities; some entities of ACORN are 501(c)(4) and some are 501(c)(3), correct? A Q Correct. And is it your understanding that certain of those

entities are not to engage in political activities? A Q Yes. Okay. And do the entities that are not to engage

in political activities, in fact, engage in political activities? A Q happens? A Because there's no separation between the So when you have the same people Yes. And how does that happen? How does -- what

organizations for real.

that are working, that are -- like, I was getting paid through Project Vote's checkbook, but I was working on ACORN stuff. I even did PowerPoints during the midterm elections


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

for Jeffrey Robinson where they were like, okay, don't vote for Albert Win (ph) or vote for this person. And they had

doorknob -- door hangers that they would go and put on people's doors, and we turned this into a PowerPoint presentation. So there was never any division between the

staff where you would say, okay, this is (c)(3) stuff and this (c)(4) stuff. It was just -- I don't want to say

business as usual, but it was a lot of collaboration between the organizations. Q A Q A Did that cause you concern? Yes. What did you say? I actually -- when I interviewed, I showed someone

my portfolio, which I had that PowerPoint in, and immediately someone asked me, Project Vote did this? that work for ACORN. I said no, I did

And he looked at me kind of strange,

and he was like, I'd probably take that out of your, you know, whatever. So I didn't really think anything of it at

the time, but the more I learned about it, I was like, okay. I don't want to say -- I wouldn't say I thought I was breaking the law, but I realized then that wasn't supposed to happen. Q And was the organization concerned about keeping

political activities out of the tax organization that was not allowed to engage in?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



They wanted to keep the -- I think the word

was keep the 501(c)(3) pristine and keep that clean and separated from everything else because we needed that. Q A Did they actually do that, though? Publicly, yes, they always stated that it was two

different organizations. Q A Q I mean in actual practice. Oh, no. Did anyone ever tell you, quote, let's hope we

don't get caught? A Q I've heard that before. Now, do you also have knowledge of activities that

you believe are not in accordance with the law that ACORN engaged in? A Well, there was one thing that really bothered me I received an e-mail. It was called dotting

from last year.

the Is and crossing the Ts, and it was based on an election assistance commission grant that we had just gotten. And it

was from Nathan Henderson James and to myself and one other person; I can't remember the name. But it was just basically telling us, okay, guys, it's reporting time again; we need to show them what we did with this EAC money; so I want you to put this on letterhead -- on ACORN letterhead and say something like, we had a really great time working with our partner, Project


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And the attitude of the e-mail was quotation marks,

you know -Q A What does that mean? To where we knew that it wasn't that there was any There might have been -- on

type of partner organization.

paper there might have been a partnership going on, but really it was ACORN and Project Vote together. Q Let's break this down. The election assistance

commission, the EAC -A Q A Yes. -- what is that? I'm not really sure how it works, but I think that

they were giving money to Project Vote for a poll worker study in Delaware and they were working with ACORN, from what I understand on this. And I think Project Vote approached

them with the understanding that they were going to hire a partner to help them in the community. Q A Was that work done? Yes. It was worked on, but it wasn't this whole

nonpartisan thing that it was made out to be to get the money. It was just, hey, guys, we need to get this done for

Delaware because we just got this check; let's get this done; let's make this report out. Q A So there was a government grant -Yes.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


-- in which the work was misrepresented to the Is that what you're telling me? And I didn't like the fact that I was

government. A


included in on that e-mail and that they -- she was told to send the copies of it to me in the D.C. office, because I didn't want anything to do with government grants. Q A Q Now, does ACORN and its affiliates have documents? Yes. And do you have any knowledge of whether documents

are being destroyed? A Q A Yes, I do. And what documents are being destroyed? I have knowledge that financial documents are

possibly being destroyed. Q that? A Yes. Well, I was -- I was told that, and I also And how do you have that knowledge? Were you told

read that as well. Q Okay. Does ACORN have a health and welfare and

pension fund for its employees? A Q A Yes. And what is the status of that? I heard that there was money that had been taken

out of the health plan and that they were trying to put the money back into the health plan.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And is there documents that reflect that? Yes. Have you seen the documents? Yes. Have you seen any documents about internal

investigations being conducted by ACORN employees currently? A Q A Yes. And what do those documents reflect? I've seen court papers saying that they're trying

to access the financial records of CCI but they are being blocked and they fear that records are being destroyed as they're trying to access them. Q A Q A Who is Mr. Bachmann? He's a lawyer for CCI. And what has he been doing of late? I heard he was blacklisted now. But I know that

before then, he was working with the ACORN scandal, trying to figure out exactly what was going on. Q And has he created memorandum to the organization

on his investigation of the organization? A Q A Q A Yes. Now, is ACORN a membership organization? Yes. How does that work? The members pay dues out of their checking account,


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

so an organizer will go out into the field, door knock, get a member to sign up. The goal is to get them to enter their If

checking account information so they can do direct debit. not, they'll come by and collect payments from the -Q Let's just break this down a bit.

If you were an

ACORN organizer and I was a member of your community and you approached me, would I pay you monthly to become a member? A Q A $30. Q Would that be -- was there an encouragement by the Yes. How much would I pay? It would depend. I've heard anywhere from ten to

organization to have a direct deposit out of my checking account? A Q Yes. And were there problems with those direct

withdrawals from checking accounts? A Q A Yes. And what were the problems? Sometimes I would answer the phones or I would be I was always

manning the faxes in the D.C. local office. hanging around.

And I remember overhearing about members

that were calling in -MS. SIMPSON: Objection, hearsay. Not offered for the truth of the



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

matter asserted.

Offered for the organization's lack of

organization in regard to keeping funds and also the membership status. MS. SIMPSON: we're here. MS. HEIDELBAUGH: THE COURT: I'll move on. It's also irrelevant. That's not why

Very well. I'll move on.


Have you been intimidated in regard to your coming

here today? MS. SIMPSON: THE COURT: Objection, asked and answered.

Overruled. Yes. I was asked to back down, and I


was told that they were bringing their big guns for me and, you know, it would be best for everyone if I just didn't testify. BY MS. HEIDELBAUGH: Q A Q Are you frightened? Yes. Why did you decide to go ahead if you're

frightened? A Because someone needed to do it. This is a very

important time in ACORN's history. this is going to sound so stupid.

They're on the -- and But I really do feel like


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

they're ready to where they can be a really great organization but there's people that are digging their heels in and they're fighting the truth. And the truth is the only

thing that's going to make this all go away, not another coverup. And I don't like to be threatened. be backed into a corner. afraid. I don't like to

I'm not -- I don't like to be And so I realized

I'd like to just tell the truth.

I can either stay in the corner and be scared and, you know, hiding at my mom's house or I can come out and get in front of everybody. Q This is a little out of order, but when a

fraudulent voter registration card is found, is there an attempt in the organization to try to fix it? And if so, how

does that whole thing work, and can you tie in the money in regard to that? A From what I understand, there's a project called

Project -- Project Fix Error where they contact bad cards, whether they be from ACORN or whoever submitted the cards. They try to find out the type of information that is needed to get this person on the rolls. And from what I also

understand, Democracy Alliance was approached or is funding this project. Q All right. Now, does ACORN seek additional donors

to fix the bad registrations that they know they already have


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to get additional money? A Well, that's what's happening. But they're saying

because they're getting cards from everywhere, they're not just fixing ACORN's bad cards. They're fixing any bad cards

to make sure that these people get on the rolls. MS. HEIDELBAUGH: have for this witness. That's all the questions that I

At this time, I would move for the

admission of the documents that I have presented to the witness which were moved without objection, I believe, Your Honor. THE COURT: inclusive? MR. MASLAND: THE COURT: No, Your Honor. Any objections to Exhibits 1 through 4

They're received.

(Exhibits Nos. P-1 through P-4 were admitted into evidence.) THE COURT: All right. We're going to take a brief

break and continue for awhile.

My normal manner of handling

witnesses is to take a break when we're shifting from direct to cross-examination. Once a witness is on

cross-examination, then she can't -- and we take a break like the break we're going to have to take at least for the early part of the afternoon, I will prohibit her from discussing her testimony, you know, with -MS. HEIDELBAUGH: I understand.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


-- the proponent.

Do you want to take

a break now, or do you want to take a break -- or do you want to continue and have a break in the middle of her cross-examination? MS. HEIDELBAUGH: THE COURT: I have no preference. During the testimony this

All right.

morning, I looked at Civil Rule of Procedure 1531 which allows me to consider affidavits in the context of a preliminary injunction, not a final injunction. But it

permits me to do so; it doesn't require me that I do so. Why would I need the affidavit that you offered previously? I mean, why do I need to take that testimony by

affidavit or that information by affidavit rather than by a live witness? MS. HEIDELBAUGH: Well, Your Honor, as a

practitioner who has done injunctions in the past, because I am allowed to submit by affidavit, because my opponent submitted by affidavit at the first motion, it is -THE COURT: Okay. Well -It expedites the proceeding. This is usually a very It


-- it provides for evidence. truncated proceeding.

And for me to provide to the Court all

the evidence that I need to provide in the limited time that I have, it is -- it is usually the only mechanism that I have.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 get here.


So this particular witness was covered

by that affidavit, I want to say -MS. HEIDELBAUGH: Your Honor. THE COURT: Who is it? Mary Joe Headley. She's very important to my case,


And what does she do? She's the chief clerk of the


Delaware County Voter Registration Commission in Delaware County. THE COURT: So she's working today? Yes, sir.


It's a difficult time -Yes, it's difficult for her to And as I've said, she's -This is testimony --


There's those issues.

I mean, this is a sworn affidavit. THE COURT: I will --


-- and she can be crossed on this

at any time during the permanent injunction phase. THE COURT: If there's an affidavit from a witness

who is out of the area who is actually working on the election -MS. HEIDELBAUGH: THE COURT: affidavits. Yes, sir.

-- then I will receive those


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 break.


Thank you, sir.

So if there's another hearsay

objection, I'm going to overrule it. MS. HEIDELBAUGH: THE COURT: Thank you, sir.

Anything further before the break? We're going to take a five-minute

Nothing further.

We'll be back here at noon. (Whereupon, a RECESS was taken from 11:55 a.m.

until 12:04 p.m.) THE COURT: I'm going to try to -- as a scheduling It It

matter, I have a 1:30 conference that has to go forward. just involves so many people that it's got to be handled.

involves a number of cases on remand from the Supreme Court. I'm going to continue or reschedule the 3:00 matter so we can get an earlier afternoon start. I'm guessing that

we're going to be able to do that about 2:30 -- about 2:30, so we'll take a break from 12:30 to about 2:30. We may be in here. You're welcome to leave your

material in here, but understand there will -- there may be other attorneys sitting in your seats between 1:30 and 2:30. So, you know, you're going to need to at least clean some of the countertops off. And if there's something that you don't

want to share with the world, you probably want to keep it with you because there will be other people in here perhaps. All right. We have completed the cross -- we've


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

completed the direct examination of Ms. Moncrief. received four exhibits. cross-examination.

We have

We're about ready to start

Anything I need to address before we

start cross-examination? Hearing nothing, you may proceed. MS. SIMPSON: Thank you, Your Honor.

CROSS-EXAMINATION BY MS. SIMPSON: Q A Q Good afternoon, Ms. Moncrief. Good afternoon. Isn't it true that you have -- your title at

Project Vote was as a development associate? A Q That is true. And you worked as a development associate from

2000 -- October of 2005 until your termination in January of 2008. A Q Is that correct? Correct. And the job description for development associate

does not include going out in the field and working with organizers, does it? A Q D.C. No, it does not. You actually worked in an office in Washington,

Isn't that correct? A Q That is correct. And your responsibilities were to research donors,


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

track deadlines, apply for grants and the like. correct? A at first. 2006 on. Q No, not at first.

Is that

That was not my job description

That was only my job description from the end of Before then, I was doing other stuff. Okay. From -- during any of your time -- and your

paychecks came from Project Vote, didn't they? A Q Yes. During any of the time that you were employed by

Project Vote, did you come to Pennsylvania and observe any of the offices -- the ACORN offices here in Pennsylvania? A Q A I don't think I visited Pennsylvania. Where did you visit? I went to Detroit. I went to the Miami office. Then I've

Where else did we go?

I'm trying to remember.

been to Little Rock and the New -- New Orleans as well. Q A When did you go there? In -- let's see, Detroit and Miami were in late And New Orleans

2007 for training the political directors.

was every year because that was our organizational meetings that we'd get together for. And then Little Rock was also

every year for our political staff briefings. Q When were you physically present in an ACORN office

during a voter registration drive? A I have not been during an active voter registration


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

drive. Q Now, after you were fired from Project Vote, where

did you go to work? A Q A Q Grumman Foundation. And how long did that last? I stayed there for three and a half months. And then you went to American Rights at Work. Is

that correct? A Q Correct. And you worked there from the end of May until the Is that correct?

end of September. A Q that? A Q A Q A Correct.

You had some kind of a voluntary separation from

It's voluntary in their eyes. Not in yours? No. You believe you were terminated? After they hired the ACORN -- the head of the ACORN

wage center, when Jennifer Kern came on, yes, I received my first performance evaluation saying it was dissatisfactory; and then I was terminated and asked to sign a confidentiality agreement. Q You weren't terminated because you had absence

problems and attendance problems?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no.


That was the official reason given, but that was

not what my -- what me and my union rep thought was going on. Q A Q A Q A Where are you working now? I am not working right now. Are you being paid for being here today? No, I'm not. Were your expenses paid for being here today? They brought me here because they knew I couldn't

get here, so I guess that would be yes. Q Do you know who the political director in

Pennsylvania was in 2008 for ACORN? A Q No, I do not. Do you know who the Philadelphia quality control

employee was? A Q No. Do you know how canvassers were trained in

Pennsylvania for 2008? A I saw the training manual, but I wasn't there, so


You're aware that when canvassers are employed,

they are given forms to sign that advise them about what fraudulent activities are and how they can be prosecuted for those, aren't you? A Q Yes, ma'am. And you're aware that those forms tell the employee


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that if they violate the law, that they can be prosecuted and they can go to jail -A Q A Q Yes. -- is that correct? Yes. How's that throwing somebody under the bus when And people sign those, right?

they do those things? MS. HEIDELBAUGH: THE COURT: Objection, Your Honor.

Overruled. Because I've attended a lot of these


political operation debrief meetings since 2005, and there is a consistent echoing in the organization that the people we send out for voter registration drives are not properly trained; there's not ongoing training; and that there needs to be better quality controls. So to me, throwing somebody

under the bus means throwing them out there, knowing that they're not supposed to be out there in the first place and then punishing them when they mess up. BY MS. SIMPSON: Q A Q So that's your opinion? That's my definition of it. Okay. Yes.

Do you know -- have you attended those

debriefings for anyone in Pennsylvania? A Not for Pennsylvania, just overall voter



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


So you don't know whether this is going on --

whether the workers in Pennsylvania are perfectly trained or not trained at all, do you? A Q No, I do not. You have no specific firsthand knowledge of Is

anything going on in Pennsylvania with regard to ACORN. that correct? A Q Not in Pennsylvania, no.

You participated in working on some fact gathering

or information gathering for briefing for voter fraud prosecutions. A Is that your testimony? They were vote fraud briefings that -- they


were ongoing cases going on at the time that they had me do these briefings. And they wanted to demonstrate where in

each situation, that even if the case -- if it wasn't completed, this is what they were doing; and if it had been completed, what was the ACORN resolution. actually entitled voter fraud briefs. Q Well, how many of those were there? How many cases So they were

were there? A Each state could have multiple cases. I know that

in St. Louis, I think that brief was two and a half pages. It just depends on how many cases came out of what state I was doing. Q Explain to me what you mean by the word "brief."


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I would write a synopsis of what happened.

I would

say 30 bogus cards were turned in in Kansas City, Missouri; it was discovered by this person; the prosecutor was this person; ACORN was able to go through, ferret out who did this; and that person was prosecuted. In the Florida case, I was actually able to give a name where I showed that it was a person named Max Stuart (ph). And I think ACORN had written about them before, so I

was just basically able to take the information and put it into a brief. And each brief had a footnote of linking back

to the document that I researched and got it from. Q synopsis. A Q When you say "brief," you're talking about a Is that correct? Correct. And the synopsis came from official records that Is that correct?

you were provided. A Q

Correct, or found. Okay. And these are records that showed that there

was some problem and that no harm to the system was to occur and -- because everything was going to be identified, right? MS. HEIDELBAUGH: not in the testimony. THE COURT: Objection, Your Honor. That's

That's an opinion of counsel. Overruled. You may answer.


I'm confused about the question now.

Please rephrase.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY MS. SIMPSON: Q All right. These briefs, these synopses that you

were writing were to show what happened, what was done to identify the problem and how the problem was corrected if, in fact, it was corrected. A Q A Is that correct?

That's correct. And who was this provided to? It was a Project Vote voter fraud brief, so I'm It might have even been

pretty sure it went out to funders.

posted on the web site, but I'm not positive. Oh, it also went to the people that were working on the -- whatever active cases were still going on. Q A Q A Q A You have Exhibit 4 in front of you, do you not? Yes. Where did you get this? Where did I get this? Yeah. I've been in contact with members of the ACORN aid,

and they have provided me with documents that I may need for this. Q A Q A Q Who gave it to you? It came from a gmail account that was anonymous. Did you solicit it? I didn't solicit it. What did you do to cause people to know what your


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

e-mail address was and that they could feel free to send you whatever they wanted to? A address. I've always been -- I've always had the same e-mail And I think there were some that had ideas that I

was one of the people that was talking to the New York Times reporter. But at that time that I started receiving stuff, I

hadn't confirmed it with anyone except the reporter herself. But she was also talking to people as well, so there might have been communications with them that led -- from her that let them know. Q But I'm not sure.

Now, you have no knowledge, no personal knowledge

that any canvasser in Pennsylvania was paid per registration submitted, do you? A Q No, ma'am, I do not. And you do not have any personal information about

the canvassers in Pennsylvania and their work ethic, do you? A Q No. And you have no personal information about how the

voter registration cards were bundled and taken to the various election bureaus, do you, in Pennsylvania? A Q Oh, in Pennsylvania, no. No.

And you have no personal information that anyone at

Project Vote or ACORN labelled Pennsylvania as some kind of a rogue operation, do you? A Rogue? No.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Now, do you have any -- strike that.

Do you have

any personal information or knowledge about how records were kept by Pennsylvania ACORN with regard to voter registration cards? A Q No. Now, you said that "big guns" are coming to testify Who's going to testify against you, Ms.

against you. Moncrief? A

Not big guns.

But some of my friends in the D.C.

office, of course, they called and tried to get me to back down. And they told me that they were pulling out all their

stops on me and I needed to watch out, and they said there was intense pressure on me. to. Q A What did you think was going to happen? Well, I mean, I thought they were going to bring, So So that's what I was referring

you know, all the members and their full legal team. that's what I thought by "big guns."

When I was referring to

-- today, I was referring to, you know, the show of support for ACORN. MS. SIMPSON: THE COURT: I don't have any further questions.

You may inquire. Thank you, Your Honor.




1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q quickly.

Ms. Moncrief, I can probably do this fairly Based on your statements to Ms. Simpson that you

don't have any personal knowledge about any of the facts of Pennsylvania ACORN, is it safe to say that you don't have any personal knowledge or understanding of any of the laws of Pennsylvania as they relate to voter registration, voter fraud, absentee requests, things of that nature? true? A Q Correct. I'm unfamiliar with that. Is that

You did say that ACORN does try to catch and

separate out voter fraud applications? A Q Correct. I believe you also said -- and I just want to make

sure -- that regarding absentee voting, that ACORN tells someone if they cannot make it to the polls, that they are encouraged to vote by absentee ballot, correct? A Q Correct. They're not told that you should try to vote by Is that correct?

absentee if you can make it to the polls. A No.

It's usually for people that I guess if they

can't be there or they're invalid or whatever. Q A vote. Q Which is the proper reason for using absentee Sure. It's always the option, to make sure that they can


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

ballots. MS. HEIDELBAUGH: THE COURT: Objection to comment.

Stricken. That's fine.


Finally, I believe you told Ms. Heidelbaugh that no Is

one was paid for votes in the absentee ballot program. that correct? A Yeah, to my knowledge. MR. MASLAND: THE COURT: Thank you.

No further questions.

Any redirect?

REDIRECT EXAMINATION BY MS. HEIDELBAUGH: Q Ms. Moncrief, the meetings that you would attend,

the national meetings, were representatives from ACORN there nationally? A Q Yes. And did those members have authority or direction

over the entire nation? A Q Well, it was not members but staff, but yes. Staff. Okay. And so was the nation divided up in

terms of areas of responsibility? A Correct. Sometimes they have regional people, but

as I left, I think they were trying to get political directors for all of the major states that they were running


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

plans in. Q So the meetings that you testified and the

documents that you produced, were there people at these meetings that had responsibility not only for the northeast region of the United States but for Pennsylvania? A Correct. And I think Jessica Angus was over the

entire program.

I think it was as she was transitioning out

of the organization. Q A Who's Jessica Angus? I want to say her title was field director, but we

never really had good staff lists. Q So she would have been in charge of -- she would Is that

have been in charge at the top of Pennsylvania. right? A Q Well, nationally of all the offices.

And, of course, the national officers would have

been in charge of Pennsylvania, right? A Q Correct. And so the policies and procedures of the nation

would have applied -- of ACORN would have applied to Pennsylvania, correct? A Correct. MS. HEIDELBAUGH: THE COURT: No further questions.

Anything else for this witness? Just one follow-up question.



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. SIMPSON: Q


Ms. Moncrief, obviously you did not attend any

meetings after January of 2008 of ACORN or Project Vote or any affiliated organizations. MS. HEIDELBAUGH: Is that correct?

That's contrary to her testimony.

She said she remained a community member and a neighborhood organizer as a member of ACORN. MS. SIMPSON: THE COURT: Well, she can tell me that.

Objection is overruled. Yes. I was still an active part of


D.C. local, and I still get calls today about things to do with them. BY MS. SIMPSON: Q Did you attend any of these meetings that Ms.

Heidelbaugh referenced in her redirect, these national meetings where strategy and political directors were present and things were discussed? January of 2008? A Q No, I did not. When was the last time prior to January of 2008 Did you attend any of those after

that you attended such a meeting? A All staff was November. The last management It was a meeting

meeting was probably in December of 2007. at Sandy Newman's (ph) office.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Thank you.

May this witness be excused? This witness may be excused.


In the absence of objection, you may

You're free to leave if you wish. Do I leave these here?


Yes, please. Thank you, Your Honor.


Although I have the originals. We have seven minutes. That was what I was going to ask

MS. HEIDELBAUGH: you, Your Honor.

I'd like to hand up the Headley affidavit,

if I could, and mark it as Exhibit 5. Five? THE COURT REPORTER: MS. HEIDELBAUGH: evidence, Your Honor. THE COURT: It's received over a hearsay objection. Yes.

I ask that that be moved into

(Exhibit No. P-5 was admitted into evidence.) MS. HEIDELBAUGH: In addition, Your Honor, I have

exemplified and certified copies, which I believe to be admissible into evidence, of the criminal dockets for cases against ACORN employees in Kansas City, Missouri, with the Court documents. everybody. And I have originals and copies for

The -- these are all certified by the Court.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

There's the original seal and stamp. And there is information contained in each of these criminal indictments and guilty pleas regarding the national policy of ACORN, the activities of the individual ACORN employees. And I offer them as corroborating evidence for

the testimony of Ms. Moncrief today. THE COURT: So this is going to be Plaintiffs'

Exhibit 6, collectively six? MS. HEIDELBAUGH: Your Honor, I would like to It's many parts, but yes, sir. It hasn't been marked

introduce it as one exhibit. THE COURT: yet? MS. HEIDELBAUGH:

I understand.

I'll mark it right now.

Here's the original with the original seal. (Handing.) Next, Your Honor -THE COURT: Hang on a second.

Any objection? MS. SIMPSON: MR. MASLAND: THE COURT: objection. (Exhibit No. P-6 was admitted into evidence.) MS. HEIDELBAUGH: Next, Your Honor, I would like to On the basis of relevance, yes. No objection, Your Honor.

It's received over the relevance

admit into evidence on the exact same basis the criminal


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

indictments and guilty pleas of the ACORN employees in the State of Washington, King County, Seattle. These documents are replete with investigators' notes and the information regarding the methodology of ACORN and their quality -- lack of quality control and the submission of fraudulent voter registration. THE COURT: Any objection? Same objection.

MS. SIMPSON: THE COURT: objection.

It's received over a relevance

That's P-7? Yes, Your Honor.


(Exhibit No. P-7 was admitted into evidence.) MS. HEIDELBAUGH: Honor. The next issue is harder, Your

I would like to admit into evidence for purposes of a

preliminary injunction the King County settlement agreement between King County, which is Seattle, State of Washington, and ACORN. I have no subpoena power. discovery. I had no right to

And there is no exemplified, certified copy that I have a copy of the document. And because

I could obtain.

of the relaxed rules of evidence and civil procedure in these proceedings, I request that I be allowed to admit the King County settlement agreement between ACORN into evidence. The basis for the proffer is that it corroborates the testimony of the witness; it establishes scienter of the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

organization in regard to their knowledge of lack of quality control, their dismissiveness in regard to the problem with voter registration, the link between fraudulent voter registration and fraudulent voting, their agreement to King County to continue to be monitored; and also the argument, sir, that the document, as I read it, is not limited to King County in regard to ACORN's promise to reform itself and to cease its practice of submitting fraudulent voter registrations throughout this nation. THE COURT: as -MS. HEIDELBAUGH: THE COURT: proof? MS. SIMPSON: Yes. Based on relevance and it's This would be eight. And this is -- this will be marked

Is there an objection to the offer of

just totally -- it's a criminal prosecution, as both of these are. It has absolutely no relevance to this proceeding. MS. HEIDELBAUGH: THE COURT: objection. (Exhibit No. P-8 was admitted into evidence.) MS. HEIDELBAUGH: Your Honor, just for the record, Your Honor --

It's received over the relevance

if the Court pleases, this is -- this is, in essence, a document involved with the prosecutorial system. But

clearly, as the document states on the four corners, the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

prosecutor agreed not to prosecute the organization if they agreed to these civil remedies. THE COURT: You're describing Plaintiffs'

Exhibit 8, this settlement agreement? MS. HEIDELBAUGH: THE COURT: Okay. Yes, sir. I understand. Should I keep going?


We're on a roll here. Your Honor, I have copies of the


meeting of the city commissioners of Philadelphia from September 10th, 2008; September 17th, 2008; September 24th, 2008; October 1, 2008; and October 8th, 2008. The city commissioners, under professional court reporting service, describe in detail the difficulty with the SURE system, which is the State Uniform Registry of Electors, and the juxtaposition of its unreliability and its inaccessibility to checking the massive registrations that have been dumped on Philadelphia by ACORN. I have knowledge that in the past, the Commonwealth Court has accepted upon information and belief these transcripts that were transcribed by a professional court reporter of these proceedings as evidence. There are not And so I

sworn because people are not sworn at the meetings.

would submit -- I'd like to submit these as evidence as well, Your Honor.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Objections? Yes, hearsay; no chance to

MS. SIMPSON: cross-examine. they say.

They are being offered for the truth of what

And again, just totally unworthy evidence where

there's no right of cross-examination. MS. HEIDELBAUGH: MS. SIMPSON: THE COURT: The right of cross --

Certainly --

May I examine one of these documents? (Handing.)


May I address the objection? THE COURT: Yes. Your Honor, in a preliminary


injunction setting, with the burden to proceed at quite a fast clip and the ability to subpoena these individuals to come to Harrisburg, my burden becomes impossible. allowed to take discovery. The only evidence that I can propound to the Court to hopefully come to a right resolution in this matter is the evidence that I have. proceedings. reporter. The affidavits that I present, which are allowed by court, are not subject to hearsay. And it's my opinion and These are -- these are official I was not

They're taken down by an official court

belief that in these types of proceedings, this sort of evidence is allowed in on a relaxed standard.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bulk.

THE COURT: objection.

Well, I'll receive it over the hearsay

That would be nine. I'd like to introduce them in


(Exhibit No. P-9 was admitted into evidence.) THE COURT: I can see my law clerk's eyes growing

bigger and bigger as the stack of evidence gets higher and higher. MS. HEIDELBAUGH: affidavits, Your Honor. I'd like to -- I have additional

As I understand the Court's

preliminary ruling on the affidavit of Mary Joe Headley, the ruling was that that would be admissible because she was an election administrator -THE COURT: I would rather not accept material

that's not subject to cross-examination if I can avoid it. So I want you to give me a reason why you do it other than just, you know, it makes it easier for you. I need a reason

why this person couldn't be here or some reason why we have to proceed in that fashion. MS. HEIDELBAUGH: Yes, Your Honor. And I have

several more affidavits, and I'd ask for the kindness of the Court to allow me to -- to provide to you a solid reason with some case law on the admissibility of them absent the reason when we -- when we reconvene. THE COURT: Well, I understand that I may accept


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


-- but I don't have to accept them. Yes, sir.


That's the point. I hear you loud and clear.


If you're going to persuade me on that,

you need to come up with -MS. HEIDELBAUGH: I understand. And I do hear you

loud and clear, and I would like some time to be able to do that. I know we're going to take a break here, and -THE COURT: So this a good time to take a break? If you please, sir. Anything else?


All right.


I would just say, if Ms. Heidelbaugh

wants to share who those affidavits are with, there might be a way to work things out with counsel. THE COURT: Honestly, that's up to her. She didn't

get any discovery, so I'm not sure she is required to give you any discovery before the rest of this happens. You know,

if you want to work it out or talk about it, it's totally up to counsel. We'll take a recess now. I hope to reconvene about

2:30, assuming that everybody is out of the courtroom from the next matter. And we'll continue until we're finished


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

today. MS. HEIDELBAUGH: THE COURT: Thank you, Your Honor.

We're in recess.

(Whereupon, a RECESS was taken from 12:36 p.m. until 2:36 p.m.) THE COURT: All right. When we took a break for

lunch -- it's about 2:35 now.

When we took a break for lunch

at about 12:35, we were still on the petitioners' side of the case, and we had moved through Plaintiffs' Exhibit 9. may continue. MS. HEIDELBAUGH: Thank you, Your Honor. I should So you

be able to wrap this up very quickly. Consistent with a rendition of what happened before we took the break, I believe that the Court asked me pursuant to Pennsylvania Rules of Civil Procedure 1531, which the Court has discretion to accept evidence by affidavits, asked me to proffer the reason why particular affiants who I had intended to submit their testimony by affidavit could not appear. I have reached out through myself and others to try to contact the affiants, and for each one I have the basis. All right. For the first affiant, Joyce Haas,

who's the vice chairman of the Republican Committee that I have an affidavit, she's a party official. able to attend here today. And she is not Her husband has

She has one car.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And there's snow, and she cannot be here. THE COURT: I understand. Okay. The next witness is Monica She

MS. HEIDELBAUGH: Moyer. She is a voter.

She has children in school.

never would have been able to be here. mom. THE COURT: Okay.

She's a stay-at-home


And her affidavit was for the

purpose of having a voter testify that she did not want her vote diluted by a vote that was improper. In regard to Craig Williams, Craig Williams is a candidate. today. it. THE COURT: All right. Now, understand I'll accept He had his one and only debate for Congress And that was

He would not have been able to show up.

affidavits from those people over a hearsay objection, which I assume is going to be coming. (Exhibits Nos. P-10 through P-12 were admitted into evidence.) MS. SIMPSON: THE COURT: I so object.

But you can mark them starting at

Plaintiffs' Exhibit 10. MS. HEIDELBAUGH: affidavit of Joyce Haas. Plaintiffs' Exhibit 10 is the

And the Court has been very I do not

indulgent with me, and I apologize to the Court.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

have a copy for opposing counsel of a signed affidavit, but I have a copy of non-signed affidavits. And I'm happy to

personally at the close of these proceedings make copies so that they have the signature. THE COURT: All right. I understand.


Exhibit 12 is the original --

11 you mean? I'm sorry, 11. I need a little I have

MS. HEIDELBAUGH: help with my math.

The affidavit of Craig Williams.

one signed original, and I will get you copies. MR. MASLAND: MS. SIMPSON: chronology. MS. HEIDELBAUGH: THE COURT: Okay. Exhibit 11. Moyer is 11, so this is 12. I thought -Moyer is 11, according to your


Yes. Moyer.


Yes. Here's the original. Signature.


All right. Your Honor, I handed up to the


Court Exhibit 9, which was the city commissioners of Philadelphia transcripts. An October 15th transcript was not

included, so I would like to include in Exhibit 9


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

October 15th.

And I have copies for everyone. Any objection? No.


MS. SIMPSON: THE COURT: permitted. The 15th?

In the absence of objection, it's

Is that the date, October 15th? Yes. And lastly, Your Honor, the Court



made a reference in jest to the work of the poor law clerks this evening. And -- and so I thought it might be helpful to

provide to the Court and opposing counsel those portions of the Philadelphia transcripts, which clearly are the bulk of the reading material, that we thought were important. So what I have prepared here is a handwritten document that cites the date of the commissioners' meeting and the pages that we think are important. THE COURT: the -MS. HEIDELBAUGH: think is important. It is just a citation of what we So it's a summary? It's a summary of

And, therefore, we think -- the other

pages we're not relying on for our case. THE COURT: So this is going to be marked as 13? Yes, sir. That's received.


Thank you.

(Exhibit No. P-13 was admitted into evidence.)


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 brother. please.


One moment, please. You can watch the

There you go, Steve.

Phillies game tonight.

You won't have to read all this. Your Honor, at this point, the

MS. HEIDELBAUGH: plaintiff rests. THE COURT:

Very well.

Ms. Simpson, you may call your first witness. MS. SIMPSON: Thank you. Krista Holub.

(Whereupon, Krista Holub was sworn.) THE COURT CRIER: Spell your name for the reporter,


K-R-I-S-T-A, H-O-L-U-B, as in

DIRECT EXAMINATION BY MS. SIMPSON: Q A Q A Q A Q A Q A Ms. Holub, where do you reside? In Philadelphia, Pennsylvania. And are you employed? Yes. Who is your employer? ACORN. What is your position? I'm the Pennsylvania ACORN political director. How long have you held that position? I've been employed with ACORN since January of


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2005. Q And how long have you been the Pennsylvania

political director? A Q Since 2006. Okay. What are your duties as the Pennsylvania

political director? A My duties are to oversee the voter registration

programs for Pennsylvania, to manage the staff. Q Okay. How many offices does ACORN have in

Pennsylvania? A Q A We have four physical offices. Where are they located? In Pittsburgh, Harrisburg, Allentown and

Philadelphia. Q offices. A Q A Q And you had -- you were the supervisor of all those Is that correct? For the voter registration. For the voter registration portion? Uh-huh. Could you tell us about your education, educational Did you go to college? I graduated with a degree

background? A

I did go to college.

from the University of Iowa. Q And after graduation, did you have any employment

other than ACORN?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



I -- previously coming to ACORN, I was

employed by Imis (ph) Action Network to do a Get Out The Vote program. Q Now, as part of your responsibility as the

political director in Pennsylvania, can you describe to us who staffed the various offices with regard to the voter registration program? A Sure. The field staff, as we call it, was

comprised of political organizers who would hire, train and supervise voter registration canvassers. Parallel to that,

we had the organizing call center staff with an organizing call -- call director who managed a group of callers. Q A Q And was that for quality control purposes? It was for quality control purposes. And could you explain the -- specifically, were you

trained -- how were you trained to do this voter registration program? A I had intensive training. Again, we did a voter

registration program in 2006 as well, so I gained a lot of experience during that program. In my capacity this year, I

was in a political director training program that consisted of training for all the political directors that was held in Detroit. I believe that was last fall. We also have ongoing trainings quarterly as part of the -- as part of the overall operation and have weekly


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

training calls where we were able to highlight struggles that we were having as managers and receive feedback and support. Q The -- are you acquainted with the training that

the people who are in the field, the canvassers who are actually going out and seeking people to register to vote, were given? A Q Yes. Okay. I have firsthand experience with that. Could you describe to the Court what the

training -- first of all, how you got prospective employees, what the program was with regard to them and how they were trained? A Sure. So ACORN has a recruitment program that

recruits people from the neighborhoods where we were going to be doing voter registration. So the recruitment is largely

word of mouth, where we talk to people about what issues they are concerned about, ask them if they're looking for employment and would like to help assist people to get registered to vote. Those people are then invited to an interview process. The interview process, it starts by going over just

an overview of what ACORN is, what the organization's purpose in doing voter registration assistance is. We go over the

job requirements for the position, what canvassers will expect on a day-to-day basis, what their duties and responsibilities are.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

We go over what constitutes a complete card according to the boards of elections, how to assist voters to complete cards. We go over the legal requirements for voter

registration, for example, who's able to register in the State of Pennsylvania and so forth. We also during that

training have a very explicit discussion about what voter registration fraud is and what the consequences of voter registration fraud are. That's sort of the talking part of the interview. And then at that point, we actually practice with everyone who comes to the interview; we call it role-playing. And

each prospective employee does a role-play, and we assess them if they're able to engage people in conversation and to assist people to register to vote. At that time in the interview process, the people who are successful with the two first parts are invited to do a field test. The field test consists of them actually going

into the field and assisting people to fill out a voter registration application like they would be expected to do when we hire them. We, at the end of the field test, make an assessment of those three categories and make hiring decisions based on that. Q After individuals are hired, do they have any

additional training?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


They do have additional training.

We have both So the It's a

in-office training and in-the-field training. in-the-office training is an hour every day.

half-hour at the beginning of the shift where every day we talk about what a complete card is. Canvassers have the

option to talk about what problems they were experiencing the day before. And again, we do role-plays every day so they

are practicing. And then in-the-field training component, every canvasser's supervisor is in the field with them during the time that they're in the field. So, you know, during a

shift, the supervisor will be checking in with canvassers in the field and taking some time to work with individuals who are identified as needing retrains or additional assistance if it's deemed necessary. Q I'm going to show you a document that has been Can you tell us

marked as Private Defendants' Exhibit A. what this is? A Sure.

This is one of the documents that is used

during the interview process to describe more about the organization as well as the job description for the voter registration canvassers. Q A Q Could you take a look at the second page? Uh-huh. Right in the middle there, there are -- there are a


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

list of standards. A Q Yes.

Do you see that?

Could you explain what those -- what that means,

not necessarily read them, but tell us what those -- what a canvasser is expected to do? A Sure. I mean, like any position that one might So these are what it

hold, there's professional standards. takes to do the job. Q A

How long are canvassers permitted to work each day? Each day it's a six-hour shift. It's four hours in

the field at a minimum. Q And if a canvasser does not meet the performance

standards, what happens to them? A We do retraining with people who aren't able to

meet standards and make evaluations on their performance over the course of days and weeks based -- you know, to determine how we can retrain them and so forth. Q A How are the canvassers paid? Canvassers are paid by an hourly rate. So it's a

six-hour shift per day, and we pay by the hour. Q A Q A Q How much are they paid? $8 an hour. Though, we did raise the salary.

You raised the hourly rate at some point? Yes. To what?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


To $10 an hour. And was it necessary that a canvasser -- in order

to keep their job, a canvasser had to achieve these standards on a daily basis as far as the number is concerned, or was there some other way of evaluating them? A These were the standards. And I mean, we worked You

with canvassers on a day-to-day basis to do retrains.

know, I think if you look at someone's performance from day-to-day, one day a canvasser might bring in 13 applications. applications. The next day they might bring in 22 The next day it might be 18. So I think it's

hard to evaluate on a day-to-day basis because there were inconsistencies. Q Now, was it -- did you require that the canvassers

fill out an employment application? A Q Yes. Okay. I'm going to show you a document that has Do you

been marked as Private Defendants' Exhibit B. recognize this document? A Q A Yes, I do. Can you tell us what this is? Sure.

This is the part-time employment application

that every canvasser would fill out during the interview process. Q And I'm going to show you a document identified as


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Private Defendants' Exhibit C. A

Can you tell me what this is?

This is the voter registration training During the interview process, each canvasser


signs one of these, acknowledging that they were trained on the following things: How to fill out a voter registration

application; how to, to the best extent possible, fill it out completely and accurately; who was eligible to vote; the laws and regulations and the consequences of breaching those. Q Are these the items that are covered in the

interview? A Q Yes, they are. Now I'm going to show you Private Defendants' Do you recognize this?

Exhibit D. A Q A

Yes. What is this? This is what we call the fraud policy. Again,

during the interview session, every potential employee must sign one of these, acknowledging that they understand what the fraudulent activity would be and the consequences of that fraudulent activity. Q Now, approximately how many people were hired as

canvassers in Philadelphia? A In -- across Pennsylvania, we hired over 1100 I don't know the exact Philadelphia number. The canvassers were out in the field; they

canvassers. Q



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

had -- what were they provided as far as what was supposed to be completed by those who were seeking to register to vote? A Q What were they provided to assist them? No. What -- when they went out for their shift,

what did they take with them? A Every canvasser was given an assignment to -- where They were given a clipboard that It

they would go that day.

included more information about the organization.

included a batch of voter registration applications, and it was also -- often included flyers to give people regarding the job. Q What were the canvassers trained to do with the

actual applications, the blank applications? A The canvassers were trained to approach the person However, they're

and assist them to get registered to vote.

not allowed to, according to our internal regulations, write on the voter registration card. So they would hand the

clipboard over to the applicant and sort of walk them through line by line what information was necessary to fill out the card completely and accurately. Q And what happened with these cards that people

filled out? A So at the end of the shift, we would do a checkout So each canvasser at that

procedure with all the canvassers.

time wrote their name and address on each application that


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

they had collected during their shift and put it into what we call a batch. So they signed a piece of paper that

acknowledged their performance for the day, and they acknowledged that they had collected the voter registration cards. Q And they -- their name was also on the voter Is that correct?

registration card. A Q Yes.

I show you what has been marked as Private

Defendants' Exhibit E, and tell us what this is. A This is a copy of the worker batch sheet. So

you'll see at the top portion, it says "Canvasser Section." This is what each canvasser filled out for their work product for the day. Section." In the middle section, you'll see what says "PO

This is where the supervisor looked over and

reviewed the applications that the canvasser collected and signed off on them. And then the bottom portion is where it This is a record of the

says "OCC Call Center Section."

quality control that we did on the batch. Q Now, sometimes when these voter registration cards Is that correct?

came in, there were problems with them. A Q A That is correct.

What types of problems were found? We would find everything from a card without a date

of birth on it, the applicant failed to select a party or put


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

a signature. Q A What would happen when you had missing information? If we had missing information, according to the

boards of elections, we did not fill in that missing information. We were only able to tell the applicant over

the phone when we spoke to them that they had failed to include a piece of information and they would need to follow up with the board of elections. Q Was it the practice to call people who had

completed voter registration cards? A It was a practice to call every single application

that we had a phone number for. Q A Okay. What if you didn't have a phone number?

If we didn't have a phone number, if we were able

to do an address check to see some sort of verification, we would. Q A Q And you then called the person? If we could find a phone number, yes. If you could find a phone number. What is a

performance investigation? A A performance investigation is when either the

direct supervisor of the canvasser or the call center would identify a discrepancy on the card. We would immediately

open an investigation on the canvasser to investigate further why there was a discrepancy and to be able to take action


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

with the canvasser to do a retrain or a termination if necessary. Q A numbers. What kind of discrepancies are you talking about? There -- you know, we have standards for phone So if there was a low number of phone numbers or a

high number of disconnected phone numbers, that would elicit an investigation. If we talked to the actual person whose

name was on the application and they verified that there was an incorrect piece of information, if the date of birth was wrong or if the applicant said no, I did not intend to register to vote, we would open an investigation. lot -- you know, there's various reasons to open investigations. Q Okay. I'm going to show you what's marked as Is this the sheet that was There's a

Private Defendants' Exhibit F.

filled out when you had a performance investigation? A Q Yes, it is. Once the applications -- the voter registration

applications were reviewed and examined by the call center and quality control, what happened with them? A At that time, we would sort the cards to deliver We would sort them into

them to the board of elections. three distinct piles:

One with applications that we believed

to be complete; one pile for applications that we knew to be missing a pertinent piece of information, such as a date of


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

birth; and then a third pile, which would be problematic card if -- or batch of cards that we would want to flag for the board of elections to let them know that our investigation had discovered something suspicious. to further investigate. Q I'm going to show you what has been marked as What is this? This is And we would ask them

Private Defendants' Exhibit G. A

This is the problematic card cover sheet.

what we would use to deliver cards to the board of elections that we had found discrepancies on or had a suspicion on. Q And was there a fourth category of voter

registration cards in Philadelphia? A There was. In Philadelphia, based on a joint

agreement with the Philadelphia Board of Elections, we would deliver cards directly to the district attorney of Philadelphia when we spoke with the applicant whose information was on the card and they distinctly told us that it was not their intention to register to vote and their information was not correct. Q offices? A Q We did not. But you did identify for the boards of election Did you have that arrangement with your other

those applications that your own quality control had failed to completely verify. Is that correct?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


That is correct. Are you aware of whether or not there are any

criminal charges or indictments against any current or former ACORN employees in Pennsylvania? A I am aware, and we have participated fully with the

district attorney in Delaware County and Dauphin County. Q What other organizations were engaged in voter

registration in Pennsylvania for calendar year 2008? MS. HEIDELBAUGH: MS. SIMPSON: Objection, irrelevant.

We have a lawsuit and a motion for

preliminary injunction against ACORN, and there were many other organizations doing similar things and providing information. If we're going to use gross statistics about

how many bad voter registration cards were submitted, I think we need to know how many other entities were out there soliciting people to register to vote. MS. HEIDELBAUGH: controversy in this case. Your Honor, that is not in Plaintiffs have not alleged that,

and it has absolutely no relevance to the acts that ACORN has been accused of in regard to fraudulent registrations. THE COURT: I guess it goes to remedy, sort of the

connect between the -- your proof and effectiveness of the remedy. So I'm going to overrule the objection. MS. HEIDELBAUGH: Your Honor, may I place a second The second objection would

objection on a different basis?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

be a lack of foundational testimony to establish that this witness has this information and is not guessing. THE COURT: Well, that objection is sustained.

You may follow-up with that. MS. SIMPSON: BY MS. SIMPSON: Q What knowledge do you have of other voter Okay.

registration drives within the Commonwealth? A I have knowledge that there are many other voter I know that we have been in the field

registration drives.

and talked to other canvassing organizations who are collecting voter registration applications. Citizen Voters Project, Progressive Future. The voters -I think in total

just in Philadelphia there are about 14 to 18 other organizations on the ground. MS. HEIDELBAUGH: object to. Your Honor, that response I don't

But any further inquiry, any further response I

would object to on the basis of hearsay and would be offered for the truth of the matter asserted. THE COURT: are. BY MS. SIMPSON: Q Was there any program in place within the ACORN I'll have to hear what the questions

offices to determine whether or not your canvassers were submitting duplicate registrations, in other words,


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

registrations for people who were already registered to vote? A Yes. There were checks for duplicates. And again,

I just want to point out that we -- when we verified that it was somebody re-registering, we're still obliged to deliver it to the boards of elections. Q So aside from the voter registration cards that you

sent to the district attorney in Philadelphia, every other registration form that your canvassers brought in was sent to the boards of election. A Q Is that correct?

That is correct. And it's your -- it was your understanding that

that was a requirement? A We were obligated to do that. We communicated that

obligation to the boards of election in all the counties that we worked in. And I attempted to sit down with each and

every one of those boards of elections to discuss those -you know, that obligation. And that's the reason we had a

different situation in Philadelphia because of the partnership with the board of election. Q Prior to -THE COURT: May I ask some questions? Sure.


What's the source of this obligation? Because it is not our decision to


determine which voter registration forms are -- are


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

legitimate or not legitimate. elections' job to do that.

That's the boards of

And so our obligation to collect

voter registration applications then is to the citizens, to deliver them to the board of elections, and the board of elections decides who is eligible to be added to the rolls. THE COURT: registrants arise? THE WITNESS: Because we're assisting them in How does this obligation to these

filling out the voter registration form. THE COURT: Do you tell them that you have an

obligation to them to deliver that, even if you think it's duplicative? THE WITNESS: Yes. Many people register -- fill I spent time

out a duplicate voter registration application.

in the streets, and people don't always understand if they're registered or not. We can't stop a person from filling out

two voter registration applications. THE COURT: But you have an express understanding

with these people that you're going to deliver this, even if you find out that it's duplicative? THE WITNESS: Yes. Unless if we talk to them on

the phone and they say they did not intend to register to vote. BY MS. SIMPSON: Q Are you aware of what your duplication or


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

duplicative submissions were? percentage was? A We don't know that.

Do you know what the

And quite frankly, the boards

of elections aren't done completing the voter registration process, and so they -- nobody knows at this time. THE COURT: I'm going to ask my court reporter to

mark my questions so I can find them. BY MS. SIMPSON: Q Prior -- strike that. What -- how often were these

batches of voter registration cards delivered to the local boards of election? A At least once a week. In Philadelphia, we deliver

them twice a week. Q In Philadelphia, how -- how large were the groups How many cards were in

when you delivered them twice a week? each delivery? A Q A of 400. Q A Q Once a week? Once a week. Okay.

Between a thousand and 2,000 cards each delivery. What about in Delaware County? In Delaware County, it would be more in the range

Prior to delivering the cards to the -- to

the boards of elections, was -- was there any duplication? Did you copy these? Did you keep records? I mean, how did


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you do that? A Before delivering them to board of elections, we

would scan every application that we collected. Q scanned? A Q way? A them. Q Is it possible for you to go to a database and get To my knowledge, some of them have, but not all of The scans were uploaded onto a server. And have they been cataloged or chronicled in any And what happened to those documents that were

a list of each and every person for whom a voter registration card was submitted in Pennsylvania? A Q No. Why? Why do you say that so quickly? No one

has -- has cataloged this information? MS. HEIDELBAUGH: Objection, leading and

mischaracterization of her prior testimony. THE COURT: Overruled. The process to catalog them is


flawed, and we don't have a complete catalog. BY MS. SIMPSON: Q What -- what would have to be done in order to

generate a list of everyone for whom a voter registration card was submitted to a board of elections?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


We would have to go to the cities where we did

voter registration, print off a copy of every application that was scanned and saved. Q A Q contain? A It includes all of the -- you know, full name, And how many applications were there? Over 140,000. What kind of information do these applications

address, ID number or last four numbers of the Social Security, date of birth. It also includes membership

information and our independent verification efforts. Q And when you say "ID number," that's a driver's

license number? A Q Pennsylvania, yeah. What is your understanding about any type of

confidentiality regarding any of these -- this material on the forms that you have downloaded? A It's my understanding that the state ID and last

four digits of the Social Security as well as the date of birth are confidential information. And, of course, our

membership information and independent verification would be confidential. Q So what would have to be done before -- if you were

ordered to turn over these records, what would have to be done with each and every one of these pieces of paper?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Again, once we were able to print them off --

individually off the computer, we'd have to, you know, take a black marker and cross out all of that information. Q Now that voter registration has -- the deadline has

passed, are you working personally as far as getting out the vote? A Q A Q voters? A voters. Q vote? A Q No. It's from the Pennsylvania state voter file. Is this the ACORN -- those who ACORN registered to We have a voter file that includes information on Yes, I am. Is that a partisan program? No, it's not. Where do you obtain information about prospective

So there is -- is there such a list of ACORN

registered voters? A Q No, there's not a list of ACORN registered voters. Have you had feedback from the various boards of

education -- or boards of election indicating who they -they approved or that they actually registered to vote from the ACORN submissions? A No, we have not. We have requested that

information from the boards of elections, though, but have


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

not been given it. Q Just -- and I apologize if I have asked this If a -- if a

question before and just don't remember it.

canvasser committed an act that you -- that was denominated as fraudulent, improper, what happened to that person? A We would terminate a person if we're able to verify

that we thought it was fraudulent or the applicant said that they did not fill out that information. Q A Was that done? Yes. MS. SIMPSON: THE COURT: I have no other questions.

You may inquire. CROSS-EXAMINATION

BY MS. HEIDELBAUGH: Q A Q A Q missed? A Q No. It's H-O-L-U-B, as in bravo. Got it. Thank you. Ms. Holub, we haven't Nice to Good afternoon. Hi. Hi. It's Holb (ph)?

Holub. Holub. Okay. So there's an A in there somewhere I


met before today. meet you.

My name is Heather Heidelbaugh.

I think I'm going to start at the end of your Okay?

testimony and work backwards.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Okay. All right. Now, you produced various blank forms Is that right?

here today as exhibits. A Q Yes. Okay.

But you didn't give us any signed or filled

out copies, did you? A Q I did not. Okay. And you know that the FBI is investigating

ACORN as we speak? A Q I've not been contacted by the FBI. That's not my question. Do you know that the FBI

is investigating the ACORN as we speak? MS. SIMPSON: clear. Objection. The question is not

Investigating Pennsylvania, for which this witness

would have firsthand information, or investigating generally? THE COURT: Well, the witness hasn't complained

about the question, so I don't think that you can complain that you're confused. THE WITNESS: The objection is overruled. Well, I am confused by the question

because I don't understand if you're asking if I've read about it in the newspaper or -BY MS. HEIDELBAUGH: Q A Q Have you read about it in the newspaper? Yes. Have you been talked to about it with --


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


No. No one has discussed it with you? The FBI has not contacted me. No.

No, has anyone at ACORN discussed the FBI

investigation with you? A Q A Q today? A Q Uh-huh. Okay. I'm trying to answer your questions. Has anyone Again, I'm not sure what your question is. Let me stop you. When I -Let me stop you. You remember you're under oath

Now, has anyone -- very simple.

at ACORN discussed with you the FBI's investigation of ACORN? A When I first read about it in the newspaper, I

contacted Brian Miller to ask if he had been contacted regarding Pennsylvania. He said no, and I believe that he

sent -- or we sent a letter to the FBI requesting information about it. Q I've not heard anything back. That's the only discussion you've had with anyone

at ACORN regarding the FBI? A Q Yes. Are you aware that four prosecuting attorneys in

the Commonwealth are investigating ACORN voter registration fraud? A I am aware of -- can you tell me which four,


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

because -Q I can tell you. Allegheny County. That's

Pittsburgh. A Q A Q Uh-huh. Delaware, Dauphin and Philly. Yes, I'm aware of those. All right. So you know that the organization that

you work for is being criminally investigated by the FBI and by four prosecuting attorneys in the Commonwealth of Pennsylvania, correct? MS. SIMPSON: testimony. THE COURT: Overruled. What I understand is that -- and I've Objection, mischaracterizes her


been working with the district attorney's office to investigate canvassers. The FBI has not indicated that

they're investigating ACORN to me, and that's what I know. BY MS. HEIDELBAUGH: Q So to answer my question, we need to -- we're going

to need move quickly here, so you need to concentrate on my question and answer my question. Okay? You can answer any

question you want from Ms. Simpson. You are aware there's four criminal pending investigations in the Commonwealth of Pennsylvania, correct? A Again, as to who?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


ACORN. It was my belief that they were investigating

canvassers, per my conversations with the district attorney -Q A That worked for ACORN? Former employees of ACORN who we terminated based

on our investigations. Q And did you bring any of their paperwork here to

court today? A Q No, I did not. And how many investigators are being -- how many

canvassers are being investigated? A Unfortunately the detectives have not shared that

number with me. Q Have you been -- have the detectives asked you for

any information? A Q Yes. And what information have they asked you for --

did they ask from you? A Q you for? A Our training documents, our fraud policies, our I mean, we've had ongoing conversations about -No, what information, what documents did they ask

signed employee applications, our investigations. Q Did you bring the investigations with you today?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


No, ma'am. Why? I didn't know they were required. Did Ms. Simpson ask you to bring those today? I'm -- no. She did not? No. Okay. So you know that ACORN is being investigated You have

by four prosecutors for voter registration fraud.

given those investigators -- those criminal prosecutors investigation files, but you did not bring them here with you today. And the suit is about ACORN voter registration fraud.

Is that correct? A Q A Q A So I think that -Is that correct, ma'am? The point is -Yes or no? -- I'm not sure what -THE COURT CRIER: THE COURT: Let her finish her answer.

Give her a moment to respond to you. I'm not sure what I would have


brought because the detectives have not shared all their investigations with me. BY MS. HEIDELBAUGH: Q No, I want to know what you gave to them. What


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

investigation files did you give to them? MS. SIMPSON: THE COURT: Asked and answered.

Overruled. I gave them our training policy, our


fraud statement, gave them investigations that we had done on Jemar Barksdale and Luis Torres-Serrano as well as those two gentlemen's employee packets. BY MS. HEIDELBAUGH: Q A Q A Q Any other employees? I did not give authorities any other employees. Did anyone else at ACORN? They may have. Who? Who at ACORN would have given Pennsylvania

state prosecuting authorities information? A I believe that the -- whoever you said, the

investigators were talking with Brian Miller, who is one of our attorneys. Q A And what did Brian give them? I don't know. I believe probably similar documents

that we provided for the other two gentlemen. Q either? A Q No, I did not. Okay. Now, what law requires you to turn in every Okay. And you didn't bring any of those documents

registration that you, you ACORN, receive?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Under legal advice, we believe we're obligated to

deliver all the applications that we collect to the boards of elections. And we set that out in writing before our voter

registration program began and asked to meet with the boards of elections regarding that policy. And I did, in fact, meet

with the boards of elections in every county that we staged a drive out of, with the exception of Delaware County. Q And we're going to be here a long time if you don't

answer my questions. THE COURT: BY MS. HEIDELBAUGH: Q What law requires you to turn in every application, No, just ask your question, counsel.

every voter registration application, even if you believe it's fraudulent or a duplication? A I'm not a lawyer, ma'am. I'm sorry. I cannot

answer that question for you. Q A Q A Q A So you relied on the advice of an ACORN lawyer? Yes, ma'am. And who -- who was that? I believe Brian Miller. And where does Brian Miller work? His base office, I believe, is in Massachusetts, I'm not a hundred percent sure on

but I cannot confirm that. that. Q

Is he a licensed Pennsylvania lawyer?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I can't confirm or deny that. Now, you don't fire all canvassers who turn in

duplicates, do you? A We do retrainings with our canvassers. People are

so excited to get registered to vote in this election that we needed to train people on when to help people call the boards of elections to determine if they were registered before filling out, you know, multiple voter registration applications. But again, an applicant who wants to fill out

another application because they didn't receive their card from the boards of elections, we can't stop them from doing that. Q That's not my question. You do not fire every

canvasser that works for ACORN who submits duplicate voter registrations, do you? A We don't know when there's duplicate voter We don't

registration applications collected in every case. have that information. Q

So is the answer that I'm correct, you do not fire

every canvasser who turns in duplicate registrations? A We would have no way of knowing who to fire, so the

answer would be no. Q A So you don't know who turn s in duplicates? When the boards of elections alerts us to it, we But otherwise, we don't

work with them to terminate people.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

know duplicates from a new registration. Q I thought you said you had a quality assurance

program and you checked for duplicates? A We do have a quality assurance program and check But by no means would we be able to identify

for duplicates.

every voter registration application as if it were or were not a duplicate because that is a system the boards of elections have. Q Is it true that your canvassers don't ask an

individual if they've registered to vote before? A I'm sorry. I'm confused about the way you asked me

that question. Q Let me rephrase it. Do you train your canvassers

to ask an individual, have you registered to vote previously or are you registered to vote? A Q We do train them to ask those two questions. Okay. Yes.

You testified that you met with each and

every board of elections in the Commonwealth of Pennsylvania. Is that what I understood? A No, you misunderstood. Where we were staging voter

registration drives out of. Q How many boards of elections did you -- officials

did you -- what counties -- how many counties did you meet with? A Philadelphia, Lehigh, Dauphin and Allegheny and


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Montgomery. Q A Q Philadelphia, Lehigh? Dauphin, Montgomery and Allegheny. Are those the only counties in which you conducted

registrations? A We also did a drive in Delaware but were not able

to meet with them. Q A Q Any other county you conducted a drive? No. It's my understanding from press reports that ACORN

receives the voter registrations and then sends them to a third-party vendor. A Q A Q A Q I do. Who is she? She's the ACORN president. Okay. And who's Bertha Lewis? Do you know who Maude Hurd is?

She's the ACORN chief organizer. Okay. And is it correct that ACORN sends all of

the voter registration applications to a third-party database to input all of the information from those voter registrations? A server. What we do in Pennsylvania is upload them to a I don't know when and how that information is then

transferred to the vendor because I'm not responsible for that. In Pennsylvania, that's not something we do.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q "we"? A


When you say we upload it to a server, who's

The quality control manager, the organizing call

center manager. Q A Q And what is that database called? FTP server. Okay. Let's say that you're a canvasser, and let's

say I'm a registration, I'm going to register to vote. A Q Uh-huh. Now, do you tell me that you're going to turn in my

personal information to a third party? A When someone fills out a voter registration

application, we tell them we will deliver it to the boards of elections and they'll receive their voter registration card in a matter of weeks. Q Let me ask it again. When I fill out a voter

registration application, do you tell me that you, ACORN, intend to turn it in -- my private information in to a third party? A Q What do you mean by "a third party"? A third-party vendor that -- according to the press

reports from your national organization, you receive the information from the voter registration application; you input it into a database; and that's inputted by a third-party vendor?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


No. Okay. So you agree with me you do not tell the

individual registrant that a third party is going to see their private information, correct? A Q Correct. All right. And you've already admitted on the

stand that you provide a third party with private driver's license information, date of birth and the last four numbers of their Social Security number, correct? A Q A Q A Q When you say "I," I personally don't, no. Well, you're the director, right? Right. And you're responsible for all the canvassers? I am responsible for the canvassers, yes. Okay. And you're responsible for the voter

registration drive in Pennsylvania, correct? A Q Correct. Okay. So do you believe you have violated the

confidentiality of about 140,000 voter registration applicants in Pennsylvania? A Q Can you rephrase the question? Sure. I don't understand.

Do you believe that you have violated the

confidentiality of approximately 140,000 voter registration applicants by obtaining their personal information and submitting it to a third-party vendor without their consent


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

or knowledge? A I'm sorry. Again, was that a rephrased question, Because I -- I'm not sure how

or was that the same question? to answer your question. Q

Do you understand that you have violated the

confidentiality of approximately 140,000 voter registration applicants by providing their personal data to a third-party vendor? MS. SIMPSON: THE COURT: Objection. It's a legal conclusion.

Well -She talked about confidentiality,


I don't know that this helps me really

to solve the problem that I have with this case today, so I have a question about relevancy. MS. HEIDELBAUGH: Here's the relevancy. I'm going

to ask for a copy of the voter registrations that they have submitted so that we can check to determine -- that's in my relief and all my papers. And the response is going to be --

this is on the direct -- that they're -- it's going to be too burdensome because they're going to have to excise with a black marker, as they testified, all the confidentiality information. They've already provided it to a third party.

It's not confidential anymore. THE COURT: All right. I understand. Go ahead.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY MS. HEIDELBAUGH: Q So you would agree with me that you violated the

confidentiality of about 140,000 people, right? A I don't know what "violated the confidentiality"

legally means, though. Q Okay. Well, you know that ACORN gets all that data

into a database and then uses that data to contact those voters two times, three times, four times to get -- for Get Out The Vote efforts? A Q No, that's incorrect. Are you testifying under oath that ACORN doesn't

use that information from those voter registration applications in any regard? A We use the information to do quality control on the That is done before a databasing process that


you're talking about. Q Are you testifying, ma'am, that ACORN does not use

that information for any other purpose once it's in their database? A I have not used that information. I'm not sure how

else it's used. Q A Q A Do you know if it's used for other purposes? I do not know. Do you know if it's used for fundraising? I do not know.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Do you know if it's used for member lists? What do you mean by "member lists"? Well, you testified just moments ago to Ms. Simpson

that not only is this a voter registration application, it's an ACORN membership application, correct? A Yes. But we have a membership database where the

information would be kept, not in the data file. Q So you use the information they give you for voter

registration, and you use it for ACORN membership, right? A If they sign and agree to be an ACORN member, then

they become an ACORN member. Q Do you have any personal knowledge of whether those

lists are sold to third parties? A Q I do not have any knowledge. Have you inquired about the process of obtaining a

copy of the lists of 140,000 registrants? A Q A Q A Q A Q A Yes. Okay. And how long would it take to get it? It's undetermined.

I don't know.

You didn't inquire about that? I did ask, and there's no answer. Who did you ask? I asked Brian Miller. The lawyer? Yes.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And what did he tell you? He said he didn't know. Okay. And did you ask the IT people at ACORN? They don't

The IT people take care of our e-mail.

take care of a database. Q A Q A Who takes care of the database? I don't know actually. Who has control of the database? Well, I believe there is somebody in the Little

Rock office who manages the database. Q A And who's that? I believe his name is Andy Burns (ph), but I could

be incorrect on that. Q A Q What's his title? I don't know. So all the information from Pennsylvania is down in

Little Rock? A Q A Q A Q A Q No. We have information saved on our hard drives.

Here in Pennsylvania? Correct. And where's that hard drive? In the various offices. So the five offices that you mentioned? Yes. Okay. Now, you said -- I tried to write this down


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

as best I could -- the process to catalog them is flawed and we do not have a complete catalog. A What is flawed?

The example is that sometimes if a name is

mistyped, for example, it would be -- it would not match the actual application that we submitted to the board of elections. Q If you wanted to get a copy of the people that had

registered, what would you do? A I would talk to the Department of State or the

local county boards of elections. Q A Q A Q No, the people that registered through ACORN. I would look on our computers for the saved scans. For the saved scans? Uh-huh. Okay. Now, you said you scan every application. Is that what you're talking about?

Where are those scans? A Q Yes.

So there's an actual -- like a Xerox but only in

the computer of each application? A Q Yes. Okay. Now, since you were working with

Philadelphia, are you aware of the Philadelphia commissioners' complaints as evidenced in their commissioners' meetings of the tremendous amount of registrations that you've given to Philadelphia?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A specific? Q A

When you reference "complaints," can you be more

Are you aware of the commissioners' complaints? I'm aware of some of the commissioners' complaints.

I'm not sure which ones you're referring to. Q Okay. On October 1st, 2008, are you aware that

Mr. Bob Lee indicated at the meeting that there were 58,000 duplicates that had been filed? A I read the information that you had submitted in

preparation for today, so yes, I am aware of that. Q Are you aware that each registration, despite the

fact that it's a duplicate, has to be touched and processed by an election official? A Q A Q Yes. Are you aware that that costs money? Yes. Are you aware that if the board of elections has to

deal with 58,000 fraudulent duplicate registrations, that the possibility exists that valid registrations will not be processed? A Well, I take issue with you saying "fraudulent

duplicates" because, again, my experience with helping people register to vote is that many people in good faith filled out a duplicate application because they're excited about voting this year.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Do you think that 58,000 aren't mistakes? I have no way of knowing how many are mistakes and

how many are people not understanding the process of getting registered to vote. Q But you certainly do understand -- since you're the

director of voting registration and, you know, you've done this for a number of years and you're college educated, you understand that if there's a -- a number of 58,000 duplicates, that a valid registration may not be processed. You understand that, right? A I have confidence in the board of elections and the

Department of State that they will get all the applications processed. Q State. A But we're not talking about the Department of We're talking about the City of Philadelphia. So it's my understanding that the board of

elections in Philly has said that they will get all the applications processed before election day. Q A Q Who said that to you? I believe it was in the testimony that I read. Well, the last testimony that I read was that they Were you aware of that? And that is a concern, yes.

were 27,000 behind. A Q

I read that. Okay.

So you are concerned that a valid

registration will not be processed because there's too many


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

duplicates. A

You understand that.

Is that right?

I don't think they're being processed because I think as part of, you know,

there's too many duplicates.

every four years, there's lots of excitement about getting registered to vote, to be able to participate in the election and there's, you know, a huge upsweep in the number of people who fill out applications. Q Do you understand the role that you personally have

played in stressing the system by filing duplicate registrations to the tune of 58,000 in one county alone? MS. SIMPSON: THE COURT: BY MS. HEIDELBAUGH: Q Do you understand that -- the harm that can befall Objection. There's no testimony --

Sustained as to form.

a voter if they can't be registered because of the 58,000 duplicates that you've filed? MS. SIMPSON: THE COURT: it. MS. HEIDELBAUGH: I did file an affidavit with a Objection. There's no foundation. You may rephrase

Sustained as to form.

voter that is concerned about the situation. BY MS. HEIDELBAUGH: Q Are you concerned that people who validly

registered to vote will not be able to vote because of the 58,000 duplicates your organization placed in Philly alone?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back.


Objection as to form in that there's

no foundation that ACORN produced 58,000 duplicate registrations. THE COURT: Overruled. It's right here.


Overruled. Where? October 1, 2008, page 41.



I've overruled the objection, counsel.

Let's get to the answer. Let me ask my court reporter to read the question



"Question, are you concerned that people who validly registered to vote will not be able to vote because of the 58,000 duplicates your organization placed in Philly alone?" THE WITNESS: The board of elections, as I

understand it, is confident that they will get every one processed before election day. MS. HEIDELBAUGH: So --

I would ask the Court for

assistance in having the witness answer the question. THE COURT: I think I understand your position.

Why don't you move on? MS. HEIDELBAUGH: Thank you.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY MS. HEIDELBAUGH: Q I believe I took down your testimony correctly when

you stated that ACORN tells a registrant that you -- that ACORN is going to take their registration and deliver it to the board of elections. A Q A Q Yes. That's not exactly true, is it? I beg your pardon? Well, you don't take it immediately from ACORN to You take it back to ACORN, Is that what you said?

the county board of elections. and you input data, right? A Q A

Did I say "immediately"? Is that what you do? We tell the applicants who we assist in filling out

the voter registration application that we will deliver it to the board of elections and they'll receive their voter registration card from the board of elections. Q Now, you recognize that your organization, ACORN,

has quality control problems, correct? A Q What do you mean by "quality control problems"? You recognize that you cannot determine what are

duplicates and what are not? A In some cases, we are able to identify duplicates.

In not every case can we identify a card if an applicant is somebody who has filled out a duplicate application or if


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

it's a new application. Q Were you ever provided a copy -- since you're the

director of voter registration, were you ever provided a copy of the settlement and compliance agreement that ACORN National entered into with Washington State, King County? A Q A Q A No, ma'am. Were you aware of it? Yes, ma'am. How were you made aware of it? I know that we've referenced it in meetings.

That's how I'm aware of it. Q A Q Who referenced it? Brian Miller. Did he say that it applied elsewhere outside of

Washington? A the time. Q And did he -- did he indicate that this applied to I'm not sure if that question was asked of him at

the whole organization throughout the nation? A I'm not sure what's in there, so I'm not sure if he

would have implied that the scope is for national or not. Q correct? A Q Yes. Okay. And do you have -- did you have any issues Now, each local office has their own manager,


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

in this 2007/2008 with any of the managers of any of your local operations? A Q A What do you mean by "issues"? Any issues with the voter registration drive. I mean, there were times when people would need to If you would consider that an issue, then I

take a sick day. would say yes. Q

Did you have quality control officers in each of

the organizations? A Q Yes. Okay. And have any of those people been involved

in the criminal investigations in Pennsylvania? A Q A Yes. Who? Kira Gardner-Marshall gave a statement to the

Delaware County district attorneys regarding Jemar Barksdale. Q And did ACORN National management review your

operations? A Q A Q A Q Yes. How often? At least weekly. And did they review quality control forms? Yes. And where are your quality control forms for



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


On the computer. So those are accessible? Yes. Is there sign-in for trainings? The training sign-in is the exhibits that you saw,

the employee application, the signed training certificate and fraud statement. Q Did -- the individuals who were being investigated

for criminality, did they sign those forms? A Q I believe, yes. So despite the fact that they signed those forms,

they still engaged in criminality? A Q Yes. And does ACORN have available for Pennsylvania

filled out problematic card cover sheets, performance investigation sheets, worker batch sheets for all of the various counties that are being criminally investigated? A Q Do we have some filled out for each county? Yes.

No, do we -- do you have them for all the counties

that are being criminally investigated? A Q A Q That were filled out by who? Your local ACORN affiliates. I'm sorry. I'm confused. There's four counties that are being

That's okay.

criminally investigated, right?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Uh-huh. Okay. So for those four counties, does ACORN have

all the paperwork that you've handed up in blank to the Court? A Q A Yes. And is that readily accessible? If you mean "readily," we'd have to go to those

cities and get it. Q Did you supply it already to the criminal

authorities? A In some instances, yes, that I've already

described. Q Now, you have a form where you put aside all the

suspect registrations, right? A We have an investigation form. Is that what you're

referring to? Q I don't know what you call it. But you -- you've

testified that you segregate the suspect registrations, right? A Q A Q When we deliver them to the board of elections? Uh-huh. Yes. So do you have a document that lists the suspect

registrations? A Yes.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And where's that? Also on the computer. Okay. And how hard would that be to get?

You know, again, we have hundreds of these employee

documents and so forth, so we would just have to search the computer to get them, which -Q Are you saying that you have hundreds of suspect

voter registration forms? A No, I'm saying hundreds of employee packets and

investigations and problematic cards combined, so -Q you find? A Q A Q A Q A Q A Q A Q A I don't know that off the top of my head. How many do you think? I'm not going to guess. You have no idea? No. You don't have a record of that? No. Did you search for it before you came here today? Yes. You did? Yes. But you don't remember? No. How many -- how many total problematic cards did


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you.


Are you aware that ACORN agreed to county and state

oversight of its operations in exchange for not being criminally prosecuted as an organization in Washington State? A I didn't know what it was in exchange for, but I do

know that we entered into an agreement. Q Did you know that Maude Hurd agreed to this

statement, "ACORN agrees that submission of registrations that have been fraudulently collected by an ACORN employee and not reviewed pursuant to the quality control procedures or willfully turning in fraudulent cards may constitute grounds for criminal prosecution of ACORN as a corporate entity"? A I hadn't seen that she said that, but I believe


Have you notified the State of Washington of the

criminal prosecutions in Pennsylvania? A Q A Q I have not. Do you know of anybody who has? No. Now, you hire your employees for six hours a day.

Is that right? A Q A Q Yes. Their shift is six hours.

Why not eight? We decided that six hours would be the shift. Do they get benefits?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Our full-time employees do, yes. Do -- the canvassers who were hired for six hours,

do they get benefits? A Q No, ma'am. Do you hire them only for six hours so you don't

have to pay them benefits? A Q A Q No, ma'am. Were you here for Ms. Moncrief's testimony? I was. Were you aware that she testified that she had been

intimidate -- called and intimidated in regard to her testimony today? A Q A Q Was I aware of that? Yeah, did you hear her say that? I did hear her say that. And you wouldn't countenance that behavior in any You wouldn't agree with that behavior? No, I would not agree with it.

way, would you? A Q

Thank you.

And if you found out about that, you would -- you

would try to prevent that, right? A Q Yes. Now, do you know of any destruction of documents

going on in ACORN? A Q No, I do not. And you wouldn't -- you wouldn't allow that to


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

happen either, would you? A Q offices? A Q I have been. Okay. And you haven't obviously met the 1100 There's only one of you, right? That's correct. Okay. Have you been in all of the Pennsylvania

canvassers, all of them. A Q A Q That's correct.

And you didn't train all of them? I did not train every one of them. And are all of them paid by check or some of them

paid by cash? A Q cash? A Q A Q No, ma'am. Do you pay for registrations by cash? No, ma'am. And you would not be able to state -- since you They're all paid by check. Is there anybody in a ramp-up program who's paid by

didn't follow 1100 canvassers around, you wouldn't be able to state whether anybody offered a dollar or a cigarette for a registration, would you? A If the canvasser is not following policies and So if they were doing

procedures, it was unknown to me. that, I would not know.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


You know that happens, though, right? I did not know that happens. You haven't heard about that in the press? I do not believe the testimony of the press is what

was happening in my operation. Q Well, you've heard -- have you heard ACORN

employees state on the news that they paid people a dollar, a cigarette for a registration? A Q meetings? A Q Yes. Okay. And are you familiar with the Money Mart In Pennsylvania, no, I haven't heard that. Okay. Now, did you ever go to the national

activities in Pennsylvania? A I know that there was a campaign that involved I'm not up-to-date on the particulars of it.

Money Mart. Q A

And what was that campaign? I'm not sure what the campaign was. My

understanding was that it was in -- on the organizing -- the organizers were working to stop places like Money Mart from doing rip-offs. Q Okay. Well, you understand that ACORN is involved

in protesting corporations -A Q Yes. -- and then they get a donation from the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

corporation, they stop protesting. right? MS. SIMPSON:

You understand that,

Objection because this is well beyond

the scope of the direct. THE COURT: BY MS. HEIDELBAUGH: Q What was your target for registrations in True. Sustained.

Pennsylvania for '07/'08? A Q A Q A Q Our target goal? Yes. 190,000. So you fell short of your goal? Yes, ma'am. And was there a quota for individual canvassers per

day or per week? A No, there was not a quota. We have professional

job standards that we went over earlier. Q A Q A And what was the goal for each canvasser? Can I read it? Sure. Twenty to 25 valid voter registration applications;

very few incomplete applications, two percent or less; at least 19 to 24 phone numbers, which is 85 percent or more; 15 new provisional members, 60 percent or more; e-mails and cell phones, 20 percent more; 6-hour shifts, 4 hours in the field;


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and 5 recruitment contacts for work. Q A Q A Q A So 20 to 25 registrations per day is the goal? Yes. But it is not a quota? Yes. If they miss the goal, what happens to them? We would do retrainings with them and work with If people were

them both in the office and in the field.

consistently unable to perform the standards of the job, then they would either be terminated for poor performance or they decided this wasn't the job for them. Q Well, what if somebody works six hours, all day

long, walking up and down the street, and asks people, Are you registered, and every single one they asked said, I'm already registered, and they couldn't turn in 20 to 25? that poor performance? A Well, we have measures to stop that from happening. Is

So part of the manager's job is to develop sites where we know there's people who are not yet registered. The manager

goes out to test the site essentially to see if that's a place where everyone is already saying they're registered or not eligible to register. Q A Q And where is that information contained? It's in the political organizer training manual. Political organizer?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



It's the manager of the canvassers.

Who does the voter registration drive, Project Vote

I work for ACORN.

We are doing voter registration

in the state, with a collaboration with Project Vote, but they're different entities. Q So ACORN can't get involved in political

activities, can they? A Q A Q can they? A Again, if voter registration is a political Members of ACORN can do political activities. That's not my question. Then I don't understand your question. ACORN can't get involved in political activities,

activity, then -- I mean, it is getting people to vote, which is part of the electoral project. Q Do you know -- do you know if ACORN can get

involved in political activities? A I think I don't understand what you mean by If could you define that for me.

"political activities." Q A Q A Q

Get Out The Vote. We do Get Out The Vote operations. You can do that? Uh-huh. Can you coordinate with campaigns?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


No, we do not coordinate with campaigns. Can you receive donor lists? I'm not sure. Now, you don't call every voter registration

application, do you? A Every voter registration application that has a

phone number we call. Q A So you don't call everyone. Is that correct?

If it didn't have a phone number, we can't call it.

That's right. Q Well, do you call everyone that has a voter

telephone number? A Q A Q called? A Q A Q A Q A Q (Nodding.) And is there a notation who called them? Yes, ma'am. And is it initials? Yes. And do you have a master list of initials? No. So how do you know whose initials are whose? Yes. And what document reflects that? The voter registration application. You'll have a notation on there that they were


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


For the callers? Sure. I'm not aware of a case where we would have But if that was the case, I'm

multiple similar initials.

sure the managers figure out a way to make the distinction. Q Are you aware of Philadelphia's concern about

fictitious registrations on ACORN applications? A Q A Yes. What is -- what is the problem? I -- the conversations that I've had with the

Philadelphia Board of Elections was regarding addresses that were returned mail, had returned mail. Q A Q A How many? I don't know how many. And what did you do about that? We implemented a couple of things. One was working

with the board of elections to get a list of all the streets in Philadelphia so that we could independently verify if it was an address that existed or didn't exist. We also would

do online searches for addresses if we had a concern about the address that was on the application. Q You were asked a question about other organizations Are you aware that

that did voter registrations.

Philadelphia stated in the meeting of September 10th that the only organization that submitted fraudulent addresses was


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

ACORN? A Q I was not aware of that. Are you aware that they turned over 400 to the

district attorney? A I wasn't aware of the number. They had indicated

they had turned some over, which, again, we had also delivered some directly to the district attorney -attorney's office. And I think that, you know, I'd be

interested in working with the board of elections on those applications. I have actually asked the Philadelphia Board

of Elections to share those with me so that we could work together to go forward. Q If your job is voter registration, how is it that

you don't know how many fraudulent voter registrations your organization submitted? A Because the board of elections is the -- it's their We can do -- you know,

job to investigate the applications.

spend money, hundreds of dollars every year to do our own quality control process. But it's the board of elections who

decides, you know, if they're incomplete or if they're returned from the post office or if the applicant has filed a complaint. Q numbers? A We wrote them a letter asking them for numbers. I Have you written them a letter asking them for the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

believe it was over the summer when we first started talking about these issues. Q Well -- but you didn't submit most of them until Have you asked these -- have you asked these

the very end.

counties how many fraudulent voter registrations ACORN has submitted since you don't know yourself? A Can you clarify that, we didn't turn it in until

the end of the -Q A Well, registration ended October 6th, right? Right. But we were turning applications in twice a

week since January to the Philadelphia Board of Elections. So I'm not sure -Q Wouldn't you agree with me that the bulk of

registrations that you turned in was in September and October -- August, September, October? A Q A I actually don't think that's correct. Do you know? We had a very large operation earlier in the year, I think --

so again, there are only three days in October that we collected voter registration applications. So I think that

September and probably earlier in the spring were our biggest times. Q But you hold them, and then you turn them in bulk,

don't you? A No, we don't.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


You receive them; you take them back to the ACORN Then you flag

office, input the data into your database.

them for good registration and bad registrations; and you collect them. And then you send them to the board of -- you

give them to the board of elections, correct? A Q A Twice a week. Right? Yes. MS. HEIDELBAUGH: MR. MASLAND: THE COURT: invite redirect. EXAMINATION BY THE COURT: Q ACORN gets a registration, voter registration in, No further questions.

No questions, Your Honor.

Let me ask a few questions before I

and you check if it's a duplicate of a registration already received by ACORN? A We have implemented a process to do that, to be

able to tell if there's a canvasser, for example, who is doing that. The other means that we have to find out if it's

a duplicate is to ask the person on the phone when we talk to them, is this the first application that you filled out? And, you know, sometimes people know; sometimes people don't know. If, in fact, the person says no, I filled out


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

multiple, we encourage them to not fill out any more and to call the board of elections to get their voter registration card. And we also would discipline the canvasser either by

doing a retrain with the canvasser or if it warrants, to actually terminate the canvasser for just collecting duplicate registrations because that's not our mission. mission is to get more people get on the rolls. Q You testified that there -- that you would sort the Our

applications into three groups in most places, complete applications, applications that were missing some piece of information and problematic applications. And then I guess

in Philadelphia, there's another group as well that may get turned over to the district attorney. understood this part of the testimony. problematic card cover sheet? A Q Yes. One of these is filled out for each one of the I'm not sure I You have a

problematic registrations? A In some cases, yes. In some cases, we put more We would

than one application on the same problematic card.

put this together with the actual cards and deliver it. Q Now, do you have a list of the voter registrations

that you have identified as being problematic? A I don't have a list that's readily available.

Again, we -- we could look through the scans of the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

problematic card cover sheets that we use to deliver to the boards of elections to determine -Q So every -- every registration that you deem

problematic would appear on a problematic card cover sheet? A Q Yes. Are there -- is there any sort of individual list

or separate list from that? A Q A Q A computer. Q office? A Q Yes, sir. Are you familiar with the problematic card cover Do you spend most of your time in the Philadelphia No. Where are the problematic card cover sheets kept? On the hard drives on our computers. On which computers? Every office has an organizing call center

sheets on the Philadelphia hard drive? A Q A Yes, sir. How would they be accessed? Go on our very slow computer and bring them up and

print them. THE COURT: All right. I understand.

You may inquire if you have any redirect. MS. SIMPSON: Just a few questions, Your Honor.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. SIMPSON: Q


Just so we're perfectly clear here, what's -- what

has been scanned and what is in -- the voter registration cards that have been scanned and that are on the hard drives of the local office computers, those are the voter registration applications that were collected by the canvassers. A Q Is that correct?

Correct. There's been no feedback to ACORN about which of

these voter registration applications have been accepted into the system and individuals issued voter registration cards, has there? A Q No, there's not been any. The relationship between -- that you -- from what

you know, the third-party vendor is an independent contractor who's just doing pretty much a clerical function for ACORN inputting these documents into a database. A Correct. MS. SIMPSON: THE COURT: I have no other questions. Is that correct?

Any further questions for this witness? I have no recross.


May this witness be excused? As far as I'm concerned. You're free to


You may step down.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

leave if you wish. Please call your next -- well, let me just find out. Becky, do you need a break? THE COURT REPORTER: THE COURT: five-minute recess. (Whereupon, a RECESS was taken from 4:09 p.m. until 4:24 p.m.) THE COURT: witness. MS. SIMPSON: Kira Gardner-Marshall. Ms. Simpson, you may call your next Five minutes would be great. We'll take a brief

All right.

(Whereupon, Kira Gardner-Marshall was sworn.) THE COURT CRIER: reporter. THE WITNESS: M-A-R-S-H-A-L-L. THE COURT REPORTER: Thank you. K-I-R-A, G-A-R-D-N-E-R, hyphen, Please spell your name for the

DIRECT EXAMINATION BY MS. SIMPSON: Q A Q A Q A Good afternoon. Good afternoon. Ms. Marshall -- Ms. Gardner Marshall -Thank you. -- by whom are you employed? ACORN.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


What is your current responsibility? Currently I am working at our Orlando office. I am

the data manager for their Get Out The Vote efforts in Orlando, specifically Orange County, Orlando, Florida. MS. HEIDELBAUGH: proof. MS. SIMPSON: Ms. Gardner-Marshall was the quality Your Honor, I'd like an offer of

control call center in Philadelphia. THE WITNESS: current position. BY MS. SIMPSON: Q You were, in fact, the quality control manager in Is that correct? I'm sorry. She asked me about my

Philadelphia. A Q A

That is correct. How long did you work in that position? From the end of December of 2007 until the closing It was October 6th. I

on October 4th -- 6th; I'm sorry.

believe that's when the closing was. Q A What is your educational background? I hold a B of A in sculpture. I have completed

half of my master's in art history at the University of Glasgow. And I have been a Philadelphia public school

teacher as well as a social worker. Q Now, what were your duties at the Philadelphia

ACORN office?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I ran the organizing call center and quality And basically I oversaw all the

control department.

processing of our voter registration applications after they were collected from the canvassers. I oversaw the staff that

called all of our applications that contained phone numbers, and then I also was responsible for getting all the applications ready for the board of elections and delivering them personally. Q Okay. The quality control process, what was --

what was it that the quality control employees were looking for? A activity. We were looking for any kind of suspicious That could include, you know, similar handwriting.

It could include information that just didn't seem quite right, like, for example, maybe the last four digits of the Social Security number being 1234. We were also, you know,

calling people just to make sure that they, in fact, did fill out the application. it. Q What were the canvassers directed to do with regard So that was pretty much the extent of

to who filled out the voter registration card or application? A The voter registration application could only be You could not have, you know, a

filled out by the applicant.

mother fill it out for her daughter or, you know, a spouse fill it out.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you.


And a canvasser couldn't fill it out? Correct. So you looked to see if there were similarities in

the forms as far as the handwriting was concerned? A That's correct. I have been very minimally trained

on, you know, catching similarities in handwriting as far as the way letters are formed, numbers, things that are alike. Q A When you found some irregularity, what did you do? I would fill out -- I or my call center staff would

fill out our performance investigation form, which I believe was submitted as an exhibit. Q And if you -- I'm sorry. They're not in front of


They're right here.

Just take a look at F. That's Exhibit F. Yes, this sheet was filled out And

by the person that discovered the suspicious activity.

as you can see, it would be filled in with the date that the investigation was opened, the name of the person who is filling out the form, the name of the canvasser that collected the voter registration application that was in question and the reason for the investigation. Q A And what was done with these forms? I would take this form along with the entire batch


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

of applications that were collected that day by that canvasser. And I would discuss it with that canvasser's

manager, and we would figure out together the course of disciplinary action that would take place. Q Despite the fact that you had questions or concerns

about this particular voter application -- voter registration application, was it still submitted to the board of elections? A That is correct, unless, of course, we spoke with In

someone that said, I did not fill out that application.

that case, we would take that application directly to the Philadelphia district attorney's office, as per our agreement with the board of elections. Q correct? A Q That is correct. And what were the groups that you -- how did you And you bundled these in different groups. Is that

bundle the voter registration applications? A And I'm assuming that this is for drop-off at the

board of elections. Q A Yes. There were complete, incomplete, problematic; and

then later on we added an additional category of illegible cards. Q And you had a group of fraudulent -- of those where


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you verified that the name of the person on the voter registration form told you they had not filled that out? A Right. But those did not go to the board of

elections. office. Q

They went straight to the district attorney's


Now, what happened if the voter registration How did you contact the

form did not have a phone number? person? A person.

Well, in that case, we were unable to contact the However, I would personally sit down at the computer

and use different -- different web sites to see if I could find a record for that person at that address. And also we

would use the Philadelphia Ward Division database to just, you know, check to see if it was a valid address. Q Did you have interaction with the canvassers

themselves? A If there were -- if there was an extreme case of

fraud, I would assist the canvasser's manager in talking with them about their termination. I would kind of lay out how we

determined that applications were fraudulent or suspicious, and that was my main interaction with the canvassers. But

other than that, you know, basically I dealt with their managers. Q Were you ever involved with retraining of



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on?


No, I was not. Okay. Did you ever -- did you participate in the

training of your employees? A Q Absolutely. I trained them personally.

And what did you train the call center employees


I trained them on the order of the call.


our calls involved the caller asking the applicant to verify two items on the applications. and the date of birth. Usually it was the address

And then also I trained the callers

how to spot similarities in handwriting, how to, you know, kind of think about information that they're seeing and see if it makes sense. Q What happened if there was incomplete information

on the applications? A When we spoke to the person on the phone, if there

was a phone number included, we would just let them know, you know, your application is incomplete and please look for a letter from the board of elections, because the board of elections had informed us that they would be sending these people a letter stating that their application was incomplete and they would have to resubmit the information. Q You didn't just take information over the phone

from them and fill in -- and fill in the missing application? A Absolutely not.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I'm sorry, missing information. Yeah. That's not allowed. It's -- it's illegal.

You can't write anything on the application itself. Q Okay. Did you get any feedback from the

Philadelphia Board of Education -- there I go again; Board of Elections regarding the voter registration applications you were submitting on behalf of these voter registrants? A Very minimal. When -- I can think of a few

occasions where the board of elections had identified canvassers that they felt were handing in fraudulent applications. And in all the cases that they mentioned to

me, that canvasser already had investigations written up on them, and they had already been terminated by the time the board of elections pointed them -- these cards out to us. And also, I would like to say that the cards that they pointed out to us, we had actually flagged to them using our problematic card cover sheets. Q The -- what was the process for delivering the

voter registration cards to the board of election? A Okay. Once the cards were called through, we would And then

scan them.

And after that, they would be sorted.

they would be taken to the board of elections.

It was about

anywhere from a 4- to 7-day turnaround from the date that the applicant had filled out the cards. Q And was there generally a uniform number of cards


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

submitted every time you went to the board of elections? A Generally that number would range in between 500 to

maybe 1500, depending on if I was doing -- if I was visiting them, you know, two or three times during that week. Q week? A Yes. And actually the very last week of our drive, And there were times where you went three times a

we went every single day just so they wouldn't be overwhelmed. Q Okay. When you went every single day, do you have

a recollection of how many voter registration cards you took each day? A Q A Q Anywhere between 800 to 1200. Each day of the last week? That's correct. How long had you had those cards in your office and

in the call center? A Q A A matter -- the last week? Yes. It was a matter of two days, because I had my staff

working extra hours in order to just expedite, you know, how quickly these were being processed because we knew the board of elections was, you know, going to be quite busy. So we --

we just really wanted to make sure that we made things as easy for them as possible. And, yeah, it was about 2 to


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

3 days at that point. Q And did anyone at the board -- the board of

elections, bureau of elections, ever communicate back to you about what your percentage of success was as far as these voter registration applications, how many of these applications ended up with registered voters? A Never. The only feedback that I got for them --

from them number-wise was the number of completes, incompletes and out-of-counties that were dropped off. And I

only received those numbers up until about June, and then they decided that they would not provide those numbers for me anymore. Q Okay. What did you do with regard to investigating

whether or not the voter registration application you had was a duplicate? A Basically the only way we really had to check on

that was asking the person on the phone when we contacted them. And, you know, we would look through scans It's amazing how good your memory gets when


you're looking through voter registration cards. There have been instances where we recognize names. And we went back in our scans, and we found, hey, this person, you know, filled out a voter registration application maybe three weeks ago. And in that case, we would take one

of our problematic card cover sheets and fill it out and let


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the board of elections know that, you know, this is a duplicate application. Q Have you been interviewed by any law enforcement

officials regarding any investigation of any ACORN employees? A Yes, I have. The Delaware County detectives spoke

with me -- I believe it was about a week and a half ago -- in regards to Jemar Barksdale and I believe another canvasser by the name of Irene Council (ph). And that's -- that's the

only occasion that I've been interviewed. Q A Q A Q A Did you give a written statement to them? I did. Did you provide any documents to them? I did. What documents did you provide? I provided our problematic card cover sheet,

Exhibit G, and our performance investigation, Exhibit F, that we had on record for them. Oh, I also provided them with the

scans of the voter registration cards that those canvassers had brought in. Q Did you -- was your responsibility solely

Philadelphia County? A Up until April, I was overseeing all the counties. And I

But in April, our operation picked up a little bit. personally trained my best staff member. be my assistant.

I promoted her to

And she then began overseeing the suburban


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

areas, and I focused my attention on Philadelphia County. Q Would the suburban areas include Pittsburgh,

Dauphin -- or Allegheny County, Dauphin and Montgomery and Delaware? A Q It included Montgomery and Delaware. Yeah.

And there was another person, another call center

manager in the Pittsburgh office -- is that correct -- or in the Allegheny County office? A Q office. A Yes, that is correct. And there was someone else in the Dauphin County Is that correct? That's correct. MS. SIMPSON: THE COURT: I have no other questions.

You may inquire. CROSS-EXAMINATION

BY MS. HEIDELBAUGH: Q A Q A Q Good afternoon. Good afternoon. Ms. Gardner-Marshall? Mrs. Gardner-Marshall. Mrs. Gardner-Marshall. Thank you. You were the

quality control officer for ACORN in Philadelphia? A Q That is correct. Are you aware that you, as a citizen, can use the

SURE system in the Philadelphia election division?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I was not aware of -- that I was able to use the

board of elections database system. Q Did you ever check -- did you ever check your

registrations against the database system? A Q A Q To my knowledge, I was not able to do that. Did you ask? No, I did not. Do you know of any ACORN office that used the

available system in the board of elections -- county board of elections to check the registrations? A I only know what occurred in my office. I

really -- I don't know what occurred in other offices. Q So you don't know what quality control systems

occurred in any office other than Philadelphia? A I was trained in the Detroit, Michigan office. And

they pretty much have a board of elections that does let them go to their office and search through their database. board of elections would not let us do that. Q A Q My question is -Okay. -- do you know about the quality control measures Our

in any ACORN office other than Philly? A Yes. I know our national proceedings, but that was

never part of our national proceedings as quality control departments.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



I've asked three bad questions in a row. Do you know about the

Let me try to ask one good one.

quality control measures in any ACORN offices in Pennsylvania from 2007 through 2008 other than Philadelphia? A Q No. So you cannot testify here today what quality

control measures took place in those other offices, correct? A Q No, I cannot. All right. Now, it's my understanding from your

predecessor's testimony and from your testimony that when a registration application was filled out, it was returned to ACORN and that was put into a database, correct? A Q That's correct. Now, if it's in an ACORN database, you could check

for dupes, right? A Q Yes. Yet even though you could check for dupes, you,

ACORN, turned in 58,000 worth of dupes to Philadelphia, right? MS. SIMPSON: record. MS. HEIDELBAUGH: THE COURT: It is in the record. You may answer. Objection, assumes facts not in the



I'd just like to say that since we

did have, you know, such a massive operation going on, to


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

look through every single solitary scan and compare it to a voter registration application that you're holding in your hand, it would have been almost impossible. In addition to that, we felt that people would be honest with us when we're holding our conversation with them on the phone and we asked them, Have you registered to vote before? We -- we just felt that the people that we were

asking these questions to would answer it honestly. BY MS. HEIDELBAUGH: Q So your quality control measure in large part was

on the honesty of people? A Q Yes. Your quality control system in ACORN was not based

on your own database and your ability to check your own duplications? A We would check for duplicates if we had a suspicion In addition to that, yes,

that a card was a duplicate card.

we did rely on the honesty of people to just tell us if they were already registered. Q Wasn't it possible, ma'am, for ACORN to put into

their database all of the registrations in alphabetical order and then to determine if there was 72 Reggie Johnsons at 111 Race Street? A I don't know if that was possible -- if that was a I don't know

thing that we could have done with that data.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

if it was possible to do that. Q You don't know think it's technologically possible

in America to do that? A I absolutely believe that it is technologically

possible in America to do that, yes. Q A Q But ACORN didn't do it? We did not. What is the law that requires duplicate

registrations, fraudulent registrations, incomplete registrations to be filed with the election division? A I do not know the exact law. I was instructed in

all of my trainings that we turn in everything, no matter what it is. You know, even applications for individuals that

filled it out and they were ineligible because of their age, we handed those in as well. Q Despite the fact that you were told by your counsel

or someone else to turn in every registration, not knowing whether there was a law that required you to do that, isn't it true, Mrs. Gardner-Marshall, that the reason why every registration was turned in by ACORN was to inflate the numbers so the donors would continue to donate to ACORN? A Q A That is not true at all. What information do you have? We never turned in applications with the idea or We

hope that we would procure more money from our donors.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

did this activity to encourage people to vote and encourage people that in the past really didn't have a voice of -- a voice in elections to really get out there and make an impact on this election and really let their voices be heard. Q A Q Would you -We never -Would you agree with me that 58,000 duplicates in

one county alone can bog down the system? A I -- I haven't heard that figure from the board of I -- you know, I don't know --

elections. Q you? A Q A Q

Well, you know you have massive duplicates, don't

I know we have duplications. And how many? I was never given a number. Well, ma'am, you're the -- you're the director of

quality control for ACORN, correct? A Q A That is correct. How many incompletes did you have in '07/'08? How many incomplete applications? I do not know

the number of that. Q A Q A How many completes? I don't remember the exact number of completes. How many fraudulents? We have had approximately -- approximately 200


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

fraudulent applications that were turned into the district attorney's office of Philadelphia. Q A Q A Q A Q A How many fraudulents in your whole system? In our whole system nationally? No, in Philadelphia. You're only --

Well, I just said 200. That was the total number of fraudulents? That we confirmed, yes, as fraudulent applications. So there might be more? Well, I mean, I can only go by what we were able to

verify through our systems of calling and our systems of looking up information through various web sites. Q Press reports indicate that there's much more

applications that were turned over to the U.S. attorney in Philadelphia. A Q A Q Are those press reports incorrect?

I have no knowledge of that. Okay. Have you heard the number 1500?

No, I have not. Now, how many -- how many people were in your

quality control center in Philadelphia? A Q A I had ten employees. So ten employees checked how many registrations? Let's see. I believe that in Philadelphia, we

brought in close to 80,000 applications -Q Okay.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


-- between the end of December of 2007 and October.

So every single one of those applications has crossed through the hands of our quality control representatives. Q A Q A Okay. Okay. You have -- you have ten working at one time? Through two shifts of the day. Usually a shift of So let me lay out this scenario.

six people and then a shift of four people. Q A Q Okay. So you have six people during the day?

Uh-huh. And you have each of those looking through a number

of registrations, right? A Q A Right. How many per day? Per day we would have -- I would like to point out And so I

that we go through the applications three times.

would say that maybe we would have up to about five or six hundred applications go through our quality control office per day. Q So each -- each quality control person, if there's Is that right?

six, has about a hundred. A Q Correct.

So if one person registered six times and that

registration went to each of the six, they wouldn't able to catch it, as you testified to that an individual person can


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

check -- can catch a duplicate, right? A You know, there have been quite a few times when,

you know, someone sees a name and they think to themselves, jeez, that looks really familiar to me. and we do find a duplicate application. Q A Q I understand that, but that's not what I'm asking. I apologize. That's okay. You testified to that, that a single And we look back,

quality control person can single -- singularly remember that they have seen Reggie Johnson at 123 Race Street. testified to that. A Q That's correct. What I'm asking you is quite different. What I'm You

asking you is if Reggie Johnson has registered multiple times, isn't it possible, ma'am -- because not one single person is checking those registrations; multiple people are. In fact, ten are. And they're checking hundreds a day, and And there's no single Isn't it

they're checking them day after day.

database in which you check all your duplicates.

literally impossible for a single person to know if there's duplicates because you have a number of quality control people over a number of days? A That's correct. MS. HEIDELBAUGH: THE COURT: All right.

Can you make sure the witness has


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

water? THE WITNESS: BY MS. HEIDELBAUGH: Q Did you bring any of the paperwork that you turned Thank you.

over to the criminal authorities with you today? A Q I have no paperwork with us. No, did you bring any paperwork that you turned

over to the criminal authorities with you today? A Q A Q No. I have no paperwork with me today.

Were you asked to bring that paperwork? I was not. Okay. And you're -- you're not saying that all

canvassers that are involved in duplications or incomplete registrations or even none extreme, because you used the word "extreme," they're not all fired, right; they're retrained? A I would like to point out that very, very often

canvassers were completely unaware if a person was already registered because of the fact that, you know, maybe the person just -- they didn't share it with the canvasser or very often people forget that they're registered. I spoke with a gentleman, you know, during our last couple of days that said that he registered because the last time he voted was for Dukakis. I believe I was in second

grade when Dukakis ran, so, you know -Q That was a great race.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


-- I don't really remember.

However, you know,

that was a quite a long time ago. registered? Q And he didn't know --

Who knows if he's still

So ACORN knows; ACORN knows that people don't know So when you just told me that you

if they're registered.

rely on the honesty and veracity of people as your quality control measure, you're -- you're -- you're -- you have a disconnect because you know that people can't remember but your quality control is based on their memory, isn't it? MS. SIMPSON: THE COURT: BY MS. HEIDELBAUGH: Q Isn't your quality control based on people's memory Objection, argumentative.

Sustained as to form.

when, in fact, you know they don't have a good memory? A That's not correct. It's not based on memory.

It's based on a conversation that we have with the applicant, and it's also based on comparative handwritings. Q Now wait a minute. It's based on a conversation

with the applicant, and you just admitted that the applicant doesn't remember. A Q Right. Okay. And you haven't been trained to be a Isn't that right?

handwriting expert, correct? A I have not been trained to be a handwriting expert.

However, I'm sure that you can sit down and look at five


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

applications and if maybe two or three of them are in the same handwriting, you could probably spot some similar handwriting. do. Q A Q A Did your quality control people have that training? Yes. I did it with them personally. I'm sure that that's something that could you

You trained people in handwriting? Well, I trained them about, you know, looking at

letters, looking at numbers, seeing if they could spot how the number or letter begins and ends, how the letter is formed. I'm sure that any one of us sitting here today could And if there are

take a look at ten samples of handwriting.

three that are vaguely similar, I'm sure that most of us could pick that up. Q A Q So that process -It's not a hard thing. So that process for the quality control is when the

situation -- which has happened many times with ACORN, is when the ACORN canvasser takes the telephone book and just starts filling out applications in their own hand, right? MS. SIMPSON: THE COURT: BY MS. HEIDELBAUGH: Q Are you aware of situations in which an ACORN Objection, lack of foundation. You may rephrase it.


canvasser fills out registrations in their own hand?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Yes, I am aware of situations where an ACORN

canvasser has done that. Q A That's what you're looking for, right? We're looking for that. And, you know, we're also

taking into consideration the conversations that we have with people, databases online that we can search for a record of a person being at an address. Q So when -- so if -- if the canvasser turns in 20

applications, how -- what is the quality control measure to ensure that one quality control person sees all 20 on that day of that canvasser? A The applications are handed in to us in batches.

That batch is never -- the cards in that batch are never separated from each other until the point that they are sorted for the board of elections. So I instruct my staff to

take the cards and place them on the desk one by one and just do a general go-around to see if there are any similar handwritings within that batch. Q A And how many instances of that did you have? I do not have a number off the top of my head about

that number of instances, but there have been instances. Q A sheet. And what did you do with those? We then filled out the performance investigation And I would consult with that person's manager, and

they would be terminated.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And what happened to the registrations? They were handed in -- well, they were handed in to

board of elections generally with a problematic card cover, unless we had spoken to one of the people that were -- that the application was for and they said, I never filled out that application, because we had a thinking that, you know, basically if we handed an application in to the district attorney's office, that application would not be processed. In the event that a canvasser did fill out a card for someone who genuinely did want to be registered to vote, we wanted to give that person the opportunity to be registered to vote. So we did alert the board of elections

to the fact that we felt that the handwriting was similar. Q Okay. So there are -- there were instances in

which -- where you had similarity in handwriting and you did turn them in to the board? A Yes. And we alerted them to the fact that we felt

that they were in similar handwriting. Q Now, did you ever have situations, on another

topic, in which you had no phone number and you checked out whether -- for instance, that the address was a shelter, how many people were actually servicing that shelter or living temporarily at that shelter? A Q I'm sorry. Sure. Can you repeat that?

Do you have any circumstances in which you


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

had two or three hundred people registered at a certain address but only 30 or 40 people could live there, something like that? A You know, generally -- you know, we do have a lot And I am not aware of the bed

of shelters in Philadelphia. count for those shelters.

So, you know, we really never had

a situation that we noticed where, you know, it was impossible for X amount of people to be registered at a particular address. Q So --

Could you -- could you call the shelter and ask for

the bed count? A That's absolutely something that could be done; but

most shelters in Philadelphia -- I mean, it would really be immaterial because, I mean, shelters in Philadelphia have such a very high turnover. and out every day. I mean, they have new people in

So getting a bed count number would not

really be definitive of how many people could stay in a shelter. Q Okay. And you said that in an extreme case of Is that right?

fraud, you would fire the canvasser. A No.

All cases of fraud, the canvasser was

terminated. Q A Q Okay. So I've got your testimony wrong?

No, you misunderstand my testimony. Okay. Okay.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


My testimony was I would assist in speaking with If it was, you

the canvasser in extreme cases of fraud.

know, something where maybe two cards were in the same handwriting, then I would just leave that up to the manager to speak with the canvasser about and terminate him or her. If it was a case of fraud where I felt that I wanted to tell the person, you know, I checked out this information, I spoke to person X, Y and Z and they said this, and, you know, I couldn't verify any of this information, I wanted to let that person know that, you know, they're not getting away with anything, I know that they committed fraud. Q A How many employees were terminated for fraud? About -- this is an approximate number. I would

say about 220. Q A Q A Q A Q A Q Two hundred and twenty employees? Uh-huh. Do you have files for all of those employees? Yes, we do. Do you have investigations? Yes, we do. And that's from 2007 to 2008? Correct. And did some of their cards go to the board of

elections? A Yes, they did. And they were accompanied by a


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

problematic card cover, alerting the board of elections to the fact that we suspected that these applications were fraudulent. Q A Does ACORN do background checks on employees? I was not involved with hiring for the canvass, so

I am unaware of, you know, what kind of background checks they do and things of the like. Q What evidence is created when an ACORN quality

control person takes a registration and performs a verification that it's a real registration? are created? A On the bottom of the voter registration What documents

application, we have our quality control results, which is filled out with the person's initials, the date that they called and the response that they got and also whether or not they filled out an investigation on that particular card and also whether or not the person wants to be a member of ACORN. Q And do you -- do you know what the database is that

all that information goes into? A No, I don't. The only thing that I am familiar

with is scanning the documents and uploading them onto our FTP server. process. Q A And are you still in that office? I will be going back to that office when I complete After that, that's kind of the end of my


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the voter -- the GOTV program in Orlando, which will end on election day, of course. Q Okay. So if you wanted to pull down all the

information from your computer, you could do that -A Q Yes. -- in Philly? Okay.

And I think you testified that you knew the board of elections was quite busy, right? A it's -Q Did you ever recommend to anyone that ACORN Of course. It's a major city. So, you know,

institute a practice of checking for duplicates? A Q I'm sorry. Can you repeat that?

Did you ever recommend to anyone that ACORN

institute a process for checking duplicates so that duplicate registrations would not burden the system? A Q I have never suggested that to anyone. Now, you stated that -- you testified that in June, Is that

Philly would not provide you with numbers anymore. right? A Q Yeah. And did you know that there was -- was no

commissioner meetings between June to August? A I was unaware of that. But that shouldn't stop

them from, you know, providing me with the number of -- you


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

know, the applications that I submitted the week before. They never provided me with any kind of numbers as to who did or did not get on the rolls, so that would be immaterial. Q And did you bring your written statement today in

the criminal investigation? A Q I did not, but I'd be happy to e-mail it to you. That would be great. Did you bring any of the

written documents on Jemar Barksdale or Irene Council? A Q I did not. I was not instructed to.

Are there any criminal investigations of employees

that you can name today? A Q A Not off the top of my head. How many are there total? Off the top of my head, I would not know that I apologize.

information. Q A Approximately. I really don't wish to make a guess at that. I

would really have to go through and sit down and -Q Well, how many counties are you working with on the

criminal investigations? A Personally I have only worked with Delaware County Philadelphia has never contacted me I'd be happy to assist them with

on an investigation.

about an investigation.

anything if they needed to, but Delaware County is the only one.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



Is it more than those two?

In Delaware County? Yes. No. Just those two? Just those two. What is your definition of "fraud"? MS. SIMPSON: Objection, relevance. I'll rephrase.


You indicated there were only 200 fraudulent cards,

So what was the fraud in those cards? Those cases of fraud involved, you know, ridiculous

information, someone filling out a card in the name of, you know, Joe Schmoe at, you know, 142 Driveby Boulevard. obviously fraudulent. That's

And they also involved any kind of

case where we would call someone and they said, I absolutely did not fill out that card. Q Did you -- did you check date of births to see if

they were 18 and they were allowed to vote? A Q Absolutely. Were you aware that 702 registrations were

submitted by ACORN to Philly that were too young to vote?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I was not aware of that. Were you aware that 700 were submitted where they

forgot to put a date of birth on the form? A Well, that's just an incomplete card. And -I mean, it's

just something that was missed. Q

It can't be processed, though, without a date of

birth, right? A Okay. Well, yes, it can be processed because the

board of elections is supposed to send a letter to that person stating, You did not fill out this piece of information, and we need this piece of information in order for you to be registered. Q A Q And that creates more work for the board, right? Correct. Yeah. So if -- if they don't put in a date of

birth, your canvasser could have caught that, right? A I suppose that would be something our canvasser

could catch. Q And there were 2300 cards where there were

signature issues? A Q A I was unaware of that number. 5600 for invalid addresses? Again, that number -- the board of elections would So, of course, I -- I'm not aware

not share numbers with us.

of these issues that you're bringing up.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



And there were 6300 that were rejected

because the HAVA ID number didn't match the mailing notice that was sent out; it was undeliverable. that? A Again, the board of elections would not share Are you aware of

numbers with us. MS. HEIDELBAUGH: MS. SIMPSON: THE COURT: That's all I have.

I have nothing.

Hang on a second. Oh, I'm sorry. Nothing, sir.


May this witness be excused? Yes, Your Honor. You're free to


You may step down.

Thank you.

Do you have another witness? I do not. I would move for the

MS. SIMPSON: admission of -THE COURT:

A through G.

A through G?


A through G. I have no objection to the blank


They're received.

(Private Defendants' Exhibits A through G were


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

admitted into evidence.) MS. SIMPSON: THE COURT: Private defendants rest.

Becky, these are yours.

Bear with me a second. MR. MASLAND: Your Honor, I'd like to actually I have

begin a little bit in reverse with our declarations. two witnesses. One will be short.

And I have 20 exhibits.

Of those exhibits, I have nine declarations to present. 20. They're marked Commonwealth/Respondent's 12 through

And on the same basis as Ms. Headley's was admitted, I

would submit that these should also be admitted and considered by the Court. They're declarations from voter registration administrators in the following counties. Exhibit 12 is from

Robert Lee, Jr., voter registration administrator in Philadelphia County; 13, Deborah Olivieri, director of elections, Berks County, a county of the third class. Fourteen is Monica -- or, excuse me, Stacy Sterner, chief clerk and director of elections in Lehigh County; 15, Monica Dutko, director of elections, Adams County; 16, Laura Watts, director of elections, Susquehanna County; 17, Penny Brown, director of elections, Cumberland County; 18, Joyce McKinley, director of elections, Centre County. Nineteen is Sharon

Drayer, director of elections, Erie County; and 20 is from Marion Medalis, deputy director of voter registration for


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Lackawanna County. THE COURT: So these are people that are -These are people that --


-- employed in the election -- the

county election bureaus and are actually working on the election. They'll be received. (Commonwealth/Respondent's Exhibits Nos. 12 through 20 were admitted into evidence.) MR. MASLAND: all quite busy. Yes, Your Honor. These people are

In fact, most of the declarations are

similar, admittedly, and most of them begin talking about the pressing nature of their duties. later. Our first witness is Douglas Hill. (Whereupon, Douglas Hill was sworn.) THE COURT CRIER: please. THE WITNESS: Douglas Hill, H-I-L-L. Spell your name for the reporter, I'll comment on those

DIRECT EXAMINATION BY MR. MASLAND: Q Thank you, Mr. Hill. Can you tell the Court where

you work and what you do? A I'm the executive director of the County

Commissioners Association of Pennsylvania. Q And how long have you been in that position?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Twenty-four years. MS. HEIDELBAUGH: Objection, Your Honor, offer of

proof? MR. MASLAND: Your Honor, Mr. Hill is intimately He's familiar with the He works

familiar with the SURE system. election process.

He works with the department.

with the counties on a regular basis to ensure that they are capable of pulling off an election. He has testified any number of times, many times before the House State Government Committee, the Senate State Government Committee specifically on these issues. And I'm

going to ask him questions about what he's familiar with with respect to the SURE system, which is the Statewide Uniform Registry of Electors. THE COURT: All right. He's to -- he's going to

testify about the adequacy of the SURE system? MR. MASLAND: THE COURT: Yes, and his familiarity with it.

All right. I would suggest that he knows at


least as much about that as Ms. Moncrief knew about the subjects she testified about. THE COURT: I'm not sure what that has to do with

the offer of proof, but -MR. MASLAND: proceed. Yes. Probably nothing. So I'll


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY MR. MASLAND: Q Mr. Hill, getting right to the point, are you

familiar with the implementation of the SURE system? A Q system? A Well, actually our interests in a statewide And by way of Yes, I am. When did you first become familiar with the SURE

database predated the SURE system.

explanation, our association represents all 67 counties in the Commonwealth. Our voting membership includes the three

commissioners, the chief clerk and solicitor of each county or their counterparts in home rule counties and the City of Philadelphia. As part of their policy-making process, as early as 1996, they recognized that technology might afford them an opportunity to have means to better maintain their election rolls. And they adopted a resolution suggesting that a

statewide database be developed to help us interface with various state agencies and other counties to facilitate that recordkeeping. Moving from there, we were supporters of legislation that ultimately became Act 3 in Pennsylvania that required the creation of the SURE system. Q A That was Act 3 of 2002? Right. Right. And we also were involved in


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

discussions with the department prior to that date and ongoing after that date on the parameters of the system, issues that we thought needed to be addressed and so on. Q When you say you were involved with the department, In what capacity and what type of

how were you involved? activities? A

I, as the executive director of the County

Commissioners Association, was charged with assuring that the counties' interests were being represented as the department developed the system. The department obviously under the law had responsibility for procurement, assist in the determination of the vendor, development of the security of the system and software and so on. Our charge from our members was to assure that the data that was going to be available was the information we needed and it was going to be implemented in a fashion that met our needs over time. Q Were you -- would you consider yourself a liaison

with the department and the counties? A Q basis? A Q On a regular basis, yes. And with the counties, I presume? Yes. Did you meet with the department on a regular


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


With the counties as well, yes. What was the initial reaction to the SURE system by

the counties? A The initial reaction was skepticism. There was

concern that the initial system was not robust enough to meet our needs. And particularly for the counties that already

had in place their own election management systems, the software available through the SURE system didn't allow customized reports that we were used to doing and didn't have some of the other utilities that we were used to with our own systems. Now, the department made an initial determination to roll it out just to four counties initially. My

recollection is Bucks, Adams, Butler, and I don't recall the fourth. Q A I think --

Cumberland? Okay. That might be it. And those counties were

permitted to run the SURE system side by side with their existing systems. And then they had a quality assurance team

put in place in conjunction with the department to work out bugs over time, to develop features over time and essentially to grow the system. I think there was a really -- a realization very early on that there were processes that we couldn't anticipate with just bringing a new vendor that we had to


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

experience over time and that certainly there were going to be volume issues. We were running a software that was going to have to run through data lines from the counties directly into the servers that the state was maintaining. We were very much

concerned that the largest counties, in particular Philadelphia, would cause strain on the system. And so we

recognized the need for time to grow the system both in terms of utilities, usability and then also capacity. Q Are you familiar with the phases that the system

was rolled out in? A Yes. And that culminated in 2006 with the -- I

think it was called Go Live, where we rolled in the remainder of the counties. And 2006 voter registration was conducted

exclusively on the SURE system. Q Now, the initial reaction was one of skepticism What

during this phase-in process and the ultimate Go Live. were the reactions of the counties? A Well, among the things that we saw early were

occasional system crashes.

We had problems from time to time The

with the system hanging on cross-checks on the data. SURE team put in place help desk protocols. assigned to particular issues. they were checked off the list.

Numbers were

And as they were resolved,

The product was developed -- continued to be


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

developed over time.

The platform has not yet changed to my

understanding, but the software itself has had significant modifications over time to meet those two particular issues. One is the robustness of the system, and the second is the capacity of the system. Q Are you aware of problems during the implementation

up until today? A Until today, the system, from my communications

with the counties -- and that includes communications both with commissioners and -MS. HEIDELBAUGH: Objection, Your Honor. This is

hearsay being offered for the truth of the matter asserted. MR. MASLAND: I just asked if he was aware of

problems with the system, Your Honor, and how he's aware of those problems. MS. HEIDELBAUGH: THE COURT: offering this? I disagree, Your Honor.

The real question is, why are you

Why are you getting into this? Well, I think that the fundamental


argument that plaintiff is making here is that the system doesn't work and that there are irreparable problems with the system. To the extent that Mr. Hill is aware of problems and

those problems have been worked through, I think that's relevant for Your Honor to consider. THE COURT: I think the issue is how would he know


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that unless somebody from the Commonwealth told him. MR. MASLAND: Well, he said he's been a liaison

between the counties and the Commonwealth, that he's familiar -- he talks -- I'll ask some more questions on that. BY MR. MASLAND: Q Mr. Hill, regarding the SURE system, you converse

with the counties? A I converse with the counties, both with county

commissioners and county election directors. MS. HEIDELBAUGH: BY MR. MASLAND: Q Is that on a regular basis -THE COURT: Your hearsay objection is overruled He just said he's conversing Same objection.

based on his past question.

with these people; that's all he said. MS. HEIDELBAUGH: I don't -- the reason I objected,

Your Honor, was to prevent the wording of the hearsay response and put the Court on notice, because I believe that the question is calling for a hearsay response. apologize if I was too eager. THE COURT: BY MR. MASLAND: Q system? A We've been apprised from time to time that there Are you aware of any recent problems with the Go ahead. But I


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

are individual counties that have had difficulties.


counties' problems were resolved primarily by rebooting the system or some similar, nominal technology fix. We were apprised that there were, I think, two days when the system -MS. HEIDELBAUGH: Same objection, Your Honor. This

is just a tricky way of getting around the hearsay objection. MR. MASLAND: Okay. Your Honor, it's already been

mentioned that there have been problems with the system. Mr. Marks will be testifying more fully about that. just ask a few more questions. BY MR. MASLAND: Q Mr. Hill, the counties were initially skeptical You characterized their attitude as Let me

about this system. skeptical.

You heard me mention the declarations from nine Are you familiar with what -- are you

different counties.

aware of what the counties' impression of the system is at this point in time? MS. HEIDELBAUGH: MR. MASLAND: THE COURT: to be balanced here. Same objection.

Is he aware, Your Honor?

You know, I'm trying to -- I'm trying Counsel for petitioner submitted a lot

of information that really wasn't subject to cross-examination. Some of it was hearsay.

We do, however, have somebody here who's a live


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

witness, would be subject to cross-examination under normal circumstances. But he's going to tell me stuff that somebody

else told him, so that's sort of a problem. I guess you're getting to the point where Mr. Hill and the county commissioners don't have a problem with SURE now or they don't have any objections to SURE, they think it's working fine. I think guess that's what your offer of But I don't think you can base this

proof is going to be.

just on what the various election boards or county commissioners have told him. I mean, if he's been using the system and not having problems with it, then that would be helpful to know that. But since we do have a live witness here, I think we

need to make sure that everybody has an opportunity to inquire into the evidence you're bringing forth from the live witness. BY MR. MASLAND: Q Mr. Hill, have you testified in the past about the

counties' level of preparedness for elections, primaries and general elections? A I testified in front of the House State Government Yes.

Committee in the spring. MR. MASLAND: THE COURT:


Are you qualifying -- are you

qualifying him as an expert?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25




And do you have, based on your knowledge and

discussions, an impression as to whether the counties are prepared for this election? A It's our belief that they are. MS. HEIDELBAUGH: opinion testimony. THE COURT: BY MR. MASLAND: Q Mr. Hill, let me ask -- you've testified about your Sustained. We have -This is

I'm going to object.

familiarity with the SURE system and familiarity with it from its inception to today. system today? MS. HEIDELBAUGH: an opinion. THE COURT: That -- I don't know how you can go You know, you put Objection, Your Honor, asking for What is your impression of the SURE

there unless you qualify him as an expert. in all sorts of affidavits. MR. MASLAND: THE COURT: the affidavits? MR. MASLAND: Yes.

Is he adding something that's not in

Well, Your Honor, I propose that he

would provide the umbrella, if you will, to those affidavits; that he is familiar with those counties; he's familiar with


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the folks in the counties; he's talked to them.


testified, admittedly not in court but before legislative committees, about the level of preparedness. And I think he should be able to testify about his judgment of their level of preparedness based on his experience over the past 20 years. THE COURT: What other witness do you have? I have a witness who will drill down


a lot of these issues more -- more -- you know, in more detail than Mr. Hill. Mr. Hill. Mr. Hill -- I'm almost finished with

If you're not going to let me proceed any further

with this line of questioning, then -- then I'll sit down, let him be cross-examined and call Mr. Marks. THE COURT: The gentleman sat here all day, and I

don't want to make him feel like he's been turned away -MR. MASLAND: questions here. THE COURT: -- without purpose here. But I don't And that's why I'm trying to get more

think this is the witness that can get you where you want to go. I'm willing to accept the affidavits from the people

that are out in the field right now, but I'm not sure this witness can get you where you want to go. MR. MASLAND: It was my feeling that since he was

involved with the system from the legislative days to the present and has worked with the counties on this, that he


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

would be able to do that. going to push it. THE COURT:

If you don't feel that, I'm not

I've worked with the SURE system. I'm not going to push it. You


I've worked with the SURE system.

know, we do election law in our court all the time. MR. MASLAND: THE COURT: Sure.

So I don't know that I'm familiar as he

is about the overall scheme of things, but I have -- I know what we're talking about. MR. MASLAND: My apologies, Mr. Hill. You may cross-examine. MS. HEIDELBAUGH: MS. SIMPSON: THE COURT: All right. located? THE WITNESS: THE COURT: Harrisburg. No questions. Very good. Well, no more questions.

No questions. Good call. Where are you

Good call.

You know, I'm sorry.

So it wasn't too far of a drive? Not at all.


Thank you for coming in. Commonwealth calls Jonathan Marks.


(Whereupon, Jonathan Marks was sworn.) DIRECT EXAMINATION


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY MR. MASLAND: Q Please state your full name for the record, please,

and spell it. A Q A Jonathan Marks, M-A-R-K-S. Mr. Marks, what is your current position? I'm the chief of the division of SURE, or Statewide

Uniform Registry of Electors. Q And just to take a step back, how long have you

been employed with the Department of State? A With the Department of State, about 15 years. I

believe it was 1993. Q And when you started, where did you work and what

were your responsibilities? A I started with the corporation bureau as a clerk 2.

And over the years -- actually I was a clerk 2 and then a legal assistant 1 in the corporation bureau until 2002 at which time I accepted a position as legal assistant 2 in the office of chief counsel, primarily working with the election bureau. Q And how long were you in the Bureau of Commissions,

Elections and Legislation? A bureau -Q A That's correct. -- in different capacities. I served as legal Actually I'm still in the -- technically in the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

assistant from September of 2002 until August of 2004 at which time I accepted a position of chief of the division of elections and precinct data as it was known at that point. And then earlier this year, April 28th, I took over the position that I'm currently in. Q Just to take a step back, when you were chief of

the division of elections and precinct data, what does that position entail? A What do you oversee?

I oversaw pretty much general administration of That would include nomination

elections at the state level.

petition filings for candidates, the certification of the those candidate names to the counties, the maintenance of records regarding nomination petition filing; also any memoranda or guidance that we may have provided to the counties in regard to any number of general election administration issues that they may have asked about or inquired about. Q A Q When did you formally start as chief with SURE? The official date was April 28th. Okay. Now, did you work with the SURE system

before that date in your previous capacity? A I did not work directly with the SURE system. But

I did work with the SURE office because both are related to voter registration and elections. And, of course, a matter

of policy discussions arose regarding how the election


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

process and how the SURE voter registration process would work together. So I was familiar with the SURE system from a

distance up until recently. Q Could you describe for the Court just briefly the

general role of the SURE system and what it does? A Generally the SURE system is -- as the law

requires, is to provide essentially a statewide registration log as opposed to having 67 individual registration logs. It's statewide. It's integrated. Counties can transmit data

to and from each other, and it -- ultimately its purpose is to maintain a more accurate list of registered voters. Q systems? A Q That's correct. Okay. When the SURE system was instituted and So prior to SURE, there were basically 67 different

still today, are there concerns from counties about not having their old system? A Q Yes. What would -- what's the difference between the

SURE system and the old system in terms of processing? A Well, in terms of the process -- and each county Some were

had, you know, their own -- a different system.

very similar, but the difference really is the functionality. The single county systems essentially housed the records for that county. And many of the systems could check


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

for duplicates within the county, but there was no ability at that point in time to check outside of the county lines without working, you know, manually or in concert with the county directly. Q You've been in contact with Philadelphia County

over the years, I'm sure? A Q Uh-huh. Yes.

In terms of processing time, is there a difference

in processing time that they experience now and what they experienced under their old system? A Yes. MS. HEIDELBAUGH: Your Honor, I'm going to object

based on the foundation requirements that have been laid. It's my understanding from the testimony that he's been the director of the SURE system since April, and the question was just framed and then reframed as, I'm sure you've been in contact with Philly on the SURE system over the last couple of years. So I'm not sure that question is going to

foundationally survive. MR. MASLAND: THE COURT: BY MR. MASLAND: Q A Q I'll let you get your water. Excuse me a second. You mentioned briefly a difference between the I can rephrase the question.

All right.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

systems the counties had and the SURE system is one of duplicates. How does the duplicate check affect the

processing time of applications? A Well, the duplicate -- duplicate check affects the

processing time because it affects the business process itself. And the current duplicate check process is

two-tiered. There is a duplicate check that is done by a county. After they data enter a record, they press a

function key which first checks -- the first time you press it, it checks date of birth versus last -- and last name and checks statewide to see if any duplicates show up. second is first and last name only. And the

So you have to do both.

The system essentially compels you to check for duplicates. Q Something the counties were not able to do before.

Is that correct? A I don't believe that they -- that -- I couldn't

speak to every single county's election management system, but they certainly could not check at a statewide level with their systems because they just weren't connected. Q Can you generally describe the volume of work that

SURE -- SURE has been experiencing over the past several months? A Yes. It's -- it's unprecedented. It seems like

every presidential election, at least based on the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

statistical information that I've looked at over -- for the last 20, 30 years, seems like there's a new record every presidential election in terms of voter registration. Turnout numbers maybe were a little higher in the '60s, but they're starting to go back up, I think. But

certainly the volume of registrations processed has gone up significantly since even 2004, and that was -- that was unprecedented in 2004. Q A Has this put a strain on the SURE system? It has. Admittedly, the system -- like any other

computer system at peak times when it's dealing with a large amount of data, it does put stress on the system. groans a little bit from time to time. MS. HEIDELBAUGH: apologize. THE WITNESS: from time to time. BY MR. MASLAND: Q I'm going to ask you to take a look at I'm sorry. It groans a little bit I didn't hear the witness. I And it

Commonwealth/Respondent's Exhibit Number 1. This is the Judge's. Could you identify that exhibit for the record? A This is a -- this is a spreadsheet provided by the

chief of our Bureau of Management and Information Systems, our IT department essentially, regarding some of the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

significant issues experienced within the SURE system since the beginning of September. Q items. I draw your attention to really the first two Could you explain what that means, "regularly planned

database optimization"? A The regularly planned database optimization is It's -- if you have a PC, it would

essentially a weekly job. be like running defrag.

It's a weekly job that you run in

the database to make sure that the database continues to be fine-tuned and runs. Q Okay. The incident on September 20th, could you

explain that to the Court, please? A The incident on September 20th, what -- what

happened is the data -- database optimization job, which runs in the middle of the night Friday into Saturday -- I think it runs from 1:00 a.m. to approximately 3:00 a.m. on Saturday morning. If a user session happens to be open during that time or multiple user sessions happen to be open at that time -- during that time, the optimization job will run through tables within the database. And if it identifies that

there's an active user, it will stop so that it doesn't interfere with whatever that user is doing. And it sits

there and pretty much idles until it's freed up. And what occurred on -- on that particular morning,


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

additional users came in first thing in the morning, working overtime. They logged onto the system, and it was extremely

slow because this optimization job was still idling. We had to go in, free it up, let the optimization job run to conclusion, and then performance picked up -picked back up as normal. And since then, we've been

reminding -- number one, reminding everyone to log off, especially on Friday night before they go home. And we

actually go in to see if any active sessions are on at about 12:30 a.m. If they -- if they are, we notified the counties

that we will -- we will kill those sessions, for lack of a better term, so that the optimization job can run. Q I believe you took a look at the affidavit of Mary

Jo Headley from Delaware County, correct? A Q I did, yes. And she notes in paragraph 8 that between

October 10th and 13th, the staff only had intermittent access to the SURE system. period on Exhibit 1. I draw your attention to that time And could you describe what in

particular happened on October 10th or the 13th or whatever? A Okay. Without going into a great deal of technical

detail, basically what occurred is there was blocking in the system. And "blocking" would mean within those tables, the

database tables, there are pages of files and if a particular user is running a job, perhaps a large query against the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

entire database, it will -- and somebody else tries to access that record, it will lock up pages within that table. It

creates a block, and we have to go in and release the block. And that's what occurred on October 10th. October 10th was by far the worst experience during this time period because it lasted for several hours. It

didn't necessarily affect all users within the system, but it did affect a large number of them. So statistically -- we also monitor statistics to see how counties are progressing on a day-to-day basis. And

we saw 20 -- an average about 26,000 applications processed. In the few days leading up to that period, it dropped to about 15,000 and then went back up above 20,000. So there

was clearly a drop on that day because it was a significant amount of time. Q A Q They were still processing, though? Yes. Yes.

So the system was -- as it says here, was up but

some users experienced slowness? A Q Right. What about October 13th, which is shaded on this

exhibit, and October 15th, the same -- same thing? A Essentially the same thing. Our response time was

quicker because we knew exactly which -- which places to look. We were able to identify patterns with the first


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

experience, so we knew exactly how to troubleshoot the issue. And after October 10th, we started monitoring the system on pretty much 24/7, had more eyes looking at it. And

if we saw any trouble brewing, we'd make sure we could free it up so counties could continue to process. Q And they did.

So October 10th, the first time this occurred,

about how long was the blockage? A It lasted -- it was -- it was pretty much ongoing On the

for a six-hour period, six- or seven-hour period.

13th and the 15th, the blockages that did occur affected a smaller number of users, and they were brief. They were

minutes or an hour; two hours I think may be the longest period of time. Q A Q Now how many users are there for the SURE system? Currently there are over 400 users. Okay. Do you know what the peak number of users

has been in recent weeks or months? A I think in the days after the close of

registration, we peaked at about -- at a given moment in time around 350 users, maybe a little more. Q A Q Now, these -Not all 400 users are on at all times. The items here, October 10th, 13th, 15th, they Is that correct?

would be main or significant events. A Yes.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Have you experienced any minor events or delays? Yes. Periodically we experience minor delays. It

usually affects maybe one county.

If it's a network problem,

for example, we have to get on the phone with Verizon and go through that protocol. But in terms of the database itself or the environment itself, the one that was happening -- happening fairly frequently and it affected about 10 to 12 users a day was an issue with a particular application server within the environment. Our IT folks call it "the server farm."

But one of the servers, application 14 server, a pop-up message was coming up. When a user walked away, tried

to log back on, it would indicate that the user already had a session and would not prevent them -- or would not allow them to get into the system. They'd call the help desk. The help

desk would reset the password, and the problem was solved. Q Okay. Throughout these problems, minor or major or

significant, the system was still able to process applications? A Yes. And let me be clear. I consider them all

significant from where I'm sitting because I want it to be perfect and work all the time. But I'm also a realist and

understand that it's not going to be perfect. Q I'm going to ask you to turn your attention to what Now, it's a lengthy

is marked as Commonwealth's Exhibit 2.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

exhibit, and I certainly don't want to go through page by page at this late hour. But could you explain for the Court

what this, in essence, is? A This is the SURE job aid essentially, which

outlines the HAVA verification process, the checking of the driver's license numbers and Social Security numbers through the SURE system. Q A How does that process work, in short? Essentially the process works with another push of After the county has entered the applicant's

a function key.

information, has done the two duplicate checks, the third part of the business process is to press, I believe it's the F7 key which will run the HAVA verification process, which essentially takes the information provided by the voter, runs it through the interface we have with PennDOT, which runs it through AMVA -- and don't ask me to give you the exact meaning of the acronym. But it's essentially the vendor that

works with the Social Security Administration to check the data against the Social Security Administration's database. Obviously the driver's license numbers are checked against PennDOT's database. match or no match. Q Now, the duplicate check and the HAVA check, are And it returns the results, either a

they required by the system? A Yes. The system is essentially designed to compel


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the user to go through those three steps:

The first

duplicate check, the second duplicate check and then the HAVA verification step. Q And for further explanation, if you look back on

Exhibit 1, on October 11th and October 12th, it says, "SSN side of the HAVA check was down." A Could you explain that?

Over the weekend of Columbus Day, the Social

Security Administration had a building shut down, which essentially meant that their database was inaccessible. result, we had to hold -- the counties could continue processing voter registration applications, but the HAVA verifications were held in queue until the system came back live. I believe it was Monday morning at which time we sent We had to throttle them back. As a

them through.

We worked with the AMVA and the Social Security Administration to make sure that we weren't sending them all at once and shutting their system down. So we throttled it I think

back, and slowed -- slowly but surely, we caught up.

within a day and a half, we moved all the backlog of the HAVA verification. Q So did those applications that were in the queue

eventually go through this check? A Q Yes. I'm going to ask you to turn your attention now to Can you identify that for the record, please?

Exhibit 3.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


This is the most recent spreadsheet regarding the

status of pollbook printing for the 67 counties. MS. HEIDELBAUGH: THE WITNESS: printing. BY MR. MASLAND: Q Where it says "PBs printed" at the heading at the I didn't hear you. The status for pollbook

I'm sorry.

top, would that be pollbooks printed? A Right. That would actually be -- counties would be

more accurate; 43 counties. Q A Okay. I was looking in the -- okay. I see.

Counties with pollbooks complete, 43; and counties

with pollbooks in process, 11. Q A Q Now, that was as of yesterday at 10:00 p.m.? Correct. Do you know whether that number has changed at all

at this point? A I believe it has. I haven't gotten any absolute

numbers yet. Q

I'm sure I will by the end of the evening.

But aside from the 43 that are complete, 11 in

process, can you explain the numbers -- the other numbers that appear on the right-hand column? A The other numbers there are the total number of The second line item there are

registered voters in SURE.

the counties that have printed pollbooks, how much of the --


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

how many of those registered voters those pollbooks represent. Q A And what does that -- what are those numbers? The first number, total registered voters, And the number of those voters represented by the


printed pollbooks, 7,577,582. Q A Q And the percentage is? 87 percent. Are you familiar with the schedule for the printing

of the pollbooks for the remainder of the counties? A Q A I am. And when you -If you ask me a specific county, I may not be able But many of the counties -Some counties

to give you an exact date.

Warren County I think may be the last one.

pretty much schedule theirs right before the end of -- or right -- right before they distribute the pollbooks to the election districts. have scheduled. Q That's the latest counties would be printing So Friday, Saturday some of them even

pollbooks this week? A Yes, based on my recollection of the schedule and And, of course, those are

what they've indicated to us. fluid.

They have issues that may arise that may cause them But I think the latest would be

to change their schedule.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Saturday, and that might be one or two counties. Q Now, are you aware of how many counties -- or let Are counties required to certify their

me ask it this way.

voter registration statistics to the department? A Q A They are, yes. How many counties have done that at this point? I believe the number was 40 had done it by And probably during the day, a number of other


counties have submitted their official reports. Q Do you have any reason to expect that there will

not be any county -- or there will be any counties that will be unable to certify? A Q I have no reason to expect that. Have any counties told you that they won't be able

to certify? A Q problems? No. Are you in touch with the counties regarding these I mean counties like Delaware, for instance; do

they notify you when they're having problems? A They'll notify if -- if it's -- if it's an error

message that they're receiving or something, they may not necessarily notify me, but they will notify the help desk. If the help desk cannot resolve whatever the issue is, then it will be escalated up to us. And by "us," I mean the folks

that work in the division of SURE for our -- for us to


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

provide a resolution, whatever it is. Q Did Mary Jo Headley call you about any of the

problems that she mentions in this affidavit? A No, she didn't. She hasn't called me recently And I think maybe the last

regarding any of those problems.

communication I had with her was regarding the -- cleaning up some of the pending files that were in the system in Delaware County. Q Now, over the last week or so, have you been in

contact with the counties to determine if they're having any problems; and if so, have you encountered any unique problems or unusual problems? A Yes. Yeah. We actually ask the help desk to reach

out to counties, try to get an idea what the backlog is, find out which counties may -- may believe that they need help or may be in trouble or find out if there's some county out there that needs us to give them anything or supply them with anything. And there were two counties that did -- that did

ask for our help, and we provided it. Q A Q A Okay. What were those counties, for the record?

Chester and Northampton County. Philadelphia did not ask for any help? Right. MS. HEIDELBAUGH: THE WITNESS: I didn't hear the second part. I

Chester and Northampton.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

apologize. BY MR. MASLAND: Q A Q A Q Philadelphia did not ask for any help? Philadelphia did not ask for any help. Nor Allegheny? No. What did Chester and Northampton specifically ask

you to do? A They specifically asked us to get them some And we had also

additional pieces of equipment, scanners.

put out in August at the conference kind of a trial data entry of applications through the SURE portal. Those that

were received by the department, we would enter them into the portal, send the application -- then send the applications on to the county. All they'd have to do then is finalize the applications, which would mean check for duplicates, do the HAVA verification. They'd have to attach -- scan and attach

the signature to the record, pretty much finish the process. But they wouldn't have to necessarily do the data entry. And we had already been -- Chester was interested in that back in August, so we had already been doing some of those that were received in the department. We offered, if

it would help them out, to have them ship to us any of their backlog. And we would have folks here at the department do


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that process for them, and we'd send them back.

And I

believe we did 1500 applications for Chester and 2,000 for Northampton. Q A Q A Was that last week? Yes. Okay. That was primarily last week. I think Chester we

may have actually received them by the Friday of the week before. Q And just to clarify it for the Court, I believe you

mentioned that some of these applications would come to the department. A Why would that happen?

The statute actually allows -- or it compels the

Secretary of the Commonwealth if he receives an application, a voter registration application, to forward it on to the county. We have for many years received applications. We've tried to work with the large registration drives to make sure that they're working directly with the county, because ultimately all it does is delay the transmission of the documents. But if -- if they come into

the department, we are required then to forward them on to the appropriate county. Q Now, one of the questions or one of the concerns

that Ms. Headley raised is that there have not been any significant changes or improvements to the SURE system. Can


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you address that concern? A I guess it would depend ultimately on what time Within the last few months,

period she's referring to. perhaps not.

But since its inception and even last year --

in fact, last year I believe the department did the hardware hardening project, which essentially made the server farm more robust to -- in anticipation of the additional volume that we would receive during the presidential election. We also have a going forward plan to finalize the -- what has been termed "the SURE rehosting," which would change the platform that Mr. Hill testified about. The

system still uses the original platform it was built on, which is Microsoft Access. It's going to be upgraded to SQL.

So it will have a new platform, which will make it even more robust and coincidentally will resolve the majority of these blocking issues that crop up from time to time. Q Now, this concern about the platform, how long has

that been considered by the department and why was it not done now? A Well, it's been considered by the department I I couldn't give you an

think probably for a couple of years. exact date.

But the original Go Live schedule would have had But I think the decision was

it implemented in September.

made not to go live in September because we weren't happy with testing and performance of the rehosted database. And


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

we were also getting feedback from many of the counties that that was not the most opportune time to go forward with the rehosting process. There would be retraining issues, and So

they felt that that wasn't the best time to move forward. all that was taken in -- into consideration when the department made its decision. Q

I apologize for not having an exhibit, but are you

aware of approximately how many applications have been processed in SURE in 2008? A In 2008, I believe it's over two and a half

million, probably approaching three million, if you go all the way back to January 1st. And that would include new

applications, change applications, any of those things, change of name, whatever it happens to be, PennDOT change of address. Q I'm going to switch gears slightly and go to the

voter identification issue and ask you to look at Commonwealth Exhibit Number 4. Could you describe or

identify that document for the record, please? A This is essentially the document -- the job aid for

SURE regarding the identification requirements and how they're processing information. Q Now, this job aid, I guess similar to Exhibit

Number 2 with HAVA check, is this something that the users follow?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Yes. And what -- what exactly is this? If you could

describe this show ID requirement. A

How does that work?

Well, essentially the database is built -- or was

rebuilt -- these were some of the software changes we've referenced before. But it was rebuilt to meet the mandates

of both state and federal law regarding the identification requirements and to make it easier for counties to identify those individuals who have to either show ID or provide a copy of ID with their voter reg application, voter registration application, or absentee ballot application or absentee ballot in order to vote absentee. So this process kind of outlines how that works in the system. system. And the simple explanation, it's a flagging And by "new

Essentially it flags new voters.

voter," it would mean -- in terms of state law, it would mean anyone who has registered for the first time in the state, in the county or has moved to another county or even another precinct within the county. The federal requirement would be essentially the same group of people if they registered by mail, so either someone who registered by mail or someone who registered through a registration drive. Q Now, you say that it's a flag. Where does this

flag appear?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


The flag appears on the applicant's record within

the SURE system. Q A Will it also appear in the pollbook? Yes. Yes. The reports that are printed then,

including the pollbooks, would show which voters have to show ID. I believe on the pollbook it's actually a watermark

underneath where the person signs -- the voter signs their name that says "must show ID" to indicate to the poll workers that that individual should show identification. The HAVA, Help America Vote Act flag, the federal flag actually says "must vote in person." It's a bit of a

misnomer, but if you read through this, you'd probably understand why that terminology was used particularly. But

basically that identifies for the county which ones meet the HAVA requirement of having to show ID and, you know, whether they vote in person or absentee ballot. Q Mr. Marks, I'm going to ask you to look at the You do not Have you

third page on the declaration of Robert Lee, Jr. have this. Are you familiar with that document?

seen that before? A Yes. I've seen -- the top of this document is

actually a copy of what would be your standard SURE pollbook. Q I believe that is one that they use for training

purposes, but could you briefly point out the flags that appear on the pollbook such as you just discussed with the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SURE ID -- show ID check? A The very last voter on this particular pollbook,

where they would sign their name, there's a watermark for the benefit of the poll worker that says "ID required." Q Okay. Now, as you look at that, it appears to be Is that

-- there appears to be a signature line there. correct? A Q Yes. Correct.

The person signing would be on the opposite side of

you, facing you as I am now? A Q correct? A Q Right. That's correct. Right. Looking down at this upside-down document. Is that

So the poll worker is in your position and sees

this flag? A Q A Q A Right. And requires the ID? Correct. Yes.

What happens then after that? Well, once the ID is presented, the poll worker

would have to indicate that the identification was presented, and then they would sign the voter in by flipping the pollbook around so that they could sign on the signature line.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I ask you to look at Commonwealth's -Can you identify

Commonwealth/Respondent's Exhibit Number 5. that for the record? A

This is a memorandum from April 13th of 2004.


would have been essentially the communication that was sent to the different SURE counties about the identification requirement. And you'll note that -- that it references

what -- the process for phase 1 SURE counties, phase 2 and 3, as we were kind of in the midst -- the department was in the midst of deploying SURE throughout the Commonwealth at that time. Q What was the purpose of this memo, if you were Were you involved in the preparation of

involved with this? this memo? A

I was -- I was not the primary crafter of the memo, I

but I did see the memo at the time that it was drafted. had proofread the memo as a legal assistant. MS. HEIDELBAUGH: I'm going to object to the

question then based on that foundation, as to what the purpose was. BY MR. MASLAND: Q Let me just ask this. Has this memo been rescinded

since April 13th, 2004? A Q No, I do not believe so. It's still in effect?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Correct. Is this memo something that you would have worked

with in your former position in the Bureau of Commissions, Elections and Legislation? A Q Yes. And it's something that you work with in your

current position? A Q memo? A Q Yes. In essence, because there will undoubtedly be Correct. So you're familiar with what's contained in this

plenty of argument on this, what was the purpose of this memo? A Well, the purpose of this memo -MS. HEIDELBAUGH: I'm going to, for the record,

refresh my objection based on foundation as to the purpose. THE COURT: Overruled. Overruled.


The purpose of this memo primarily

was to notify counties in 2004 what the current -- how each of those different groups of counties could comply with the requirements of the Help America Vote Act. When you said "rescinded," it hasn't been rescinded, but it has been improved upon because the system now has this functionality built into it for all 67 counties.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

There's no requirement to get a list for a particular county that they can use to check. system. The list is contained in the

Any county can access it.

BY MR. MASLAND: Q document. I'd ask you to turn your attention to page 2 of the The bulk of that, the second full paragraph, talks

about the key differences between the requirements of Section 303(b) of HAVA and Section 1210 of the Election Code as amended by Act 50. And then it lists all those. I'm not

going to ask you to go through them.

But in summary, what's

the difference between HAVA and Section 1210? A The primary -MS. HEIDELBAUGH: conclusion. THE COURT: read this myself. MR. MASLAND: That's fine. Well, let me ask a Yeah, I'm afraid I'm going to have to Objection, calling for a legal

question about that, though, if I may, Your Honor. BY MR. MASLAND: Q The policy set forth in this section, is that still

the policy of the department? A Q A Q Yes. And that has been the policy since 2004? Correct. And I'll turn your attention to the first paragraph


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

on page 1 where it talks about the effective date.

Why --

why did this memo need to come out on April 13th, 2004? A I believe the effective date for that HAVA

requirement was the first federal election after January 1st, 2004. Q So this would have been -- the April 27th election

was the first election that it really mattered? A Q A Yes. The interplay between those two laws? Right. MR. MASLAND: THE COURT: Thank you.

Are you finished with that document? Yes, I am.


Before we go into another document, I'm It's about 6:10 now. We'll

going to take a brief recess. reconvene about 6:20. MR. MASLAND:

Thank you.

(Whereupon, a RECESS was taken from 6:10 p.m. until 6:20 p.m.) THE COURT: BY MR. MASLAND: Q Mr. Marks, I had asked you to turn your attention Please Go ahead.

to Commonwealth/Respondent's Exhibit Number 6. identify that for the record. A

This is the county election administration


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

preparation checklist.

This is a tool that we provided to Then we amended it It's

the counties first prior to the primary.

slightly and sent it out again in August of this year. also posted on our web site. Q A Did you prepare this document? Yes, I did. MR. MASLAND: The bulk of it, yes.

Looking at -- Your Honor, did I give If I did, I apologize.

you one that's written on? THE COURT: the exhibit. MR. MASLAND: BY MR. MASLAND: Q

Other than the marking of the number of



I'd ask you to turn your attention to the bottom of

page 2 and the top of page 3, dealing with voter identification, specifically I guess the top of page 3. A These are bullet points regarding provisional That particular bullet

balloting and voter identification.

reminds the county to verify that first-time voters who did not submit a proper form of identification with their registration and have applied for an absentee ballot are aware of the requirements of HAVA regarding submission of the form of identification. And then it goes on to explain that it's not applicable to certain groups, including uniform and overseas voters and voters who are covered under the voting


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

accessibility for the elderly. Q Is this document shared with the counties before

every election? A It is now, yes. The first time that this

particular document was shared with them was prior to the primary. It was sent out again in August. We discussed it

at the annual election officials conference, and this will probably be part of the ongoing election tools. As I said,

we have posted this on our web page in the election administration tool -- on the election administration tools link, with a number of other helpful information. Q The allegations made that the Commonwealth does not

give enough directions to the counties -- I believe Ms. Headley even said that in her affidavit -- can you relate to the Court how many memos you've sent out through the SURE system, how many the Bureau of Commissions, Elections and Legislation have sent out this year alone? A I couldn't give you an exact number. The --

probably the SURE office sends out between the various maintenance memos, you know, Social Security Administration, that stuff, party editions, I'd say easily over a hundred. The division of commissions and elections probably sent out between 30 and 40 prior to the primary and will likely send out close to that number, maybe a little lower. To be honest with you, most counties complain that we send


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

them too many memoranda. Q I'd ask you to turn your attention to Commonwealth

Exhibits -- I'll just give you all three at the same time -7, 8 and 9 and ask you to, first of all, start with 7. In

terms of the department's outreach to prepare voters, could you identify Exhibit Number 7? A Exhibit 7 is a copy of the -- of the first

instruction page on the state voter registration mail application. Q A Q There's a circle -It's a trifold form, and this is the first. There's a circled section on there. Did you circle

that section when you prepared this document? A Q A I did, yes. Why did you circle that section? Well, I circled this section to identify this

particular item, to highlight it. Q A Q Regarding voter identification? Regarding voter identification, yes. If you could look at Exhibit Number 8. Could you

identify that, please? A Exhibit Number 8 is a screen shot of the voting by That's the

absentee ballot page on our votespa web site. voter services web site. Q

And again, you circled that portion of the page?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25




And why did you do that? This -- this particular paragraph that is circled

discusses the requirements regarding identification as they relate to absentee ballot. Q Okay. And Commonwealth's Exhibit Number 9, please

identify that and describe it. A This is a screen shot, again, of the guide for And the

first-time voters page on the votespa site.

paragraph that is circled about in the middle of the page discusses, again, voting identification requirements, and it cross-references the absentee balloting provisions. Q A, is that the department's web page? That's -- yes. That's the official voter

education, voter services web site. Q I'll ask you to look at Commonwealth/Respondent's First of all, 10, can you identify

Exhibits 10 and 11 now. that, please? A

This is a press release issued by Secretary Cortes,

reminding them about the absentee ballots -Q A Q A And when was --- the absentee ballot deadline. And when was that issued? This was issued -- this particular one was issued

prior to the primary on April 17th of 2008.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


And the second full paragraph, does it address the

issue of identification? A Yes, it does. It reminds first-time absentee

voters they must include a copy of an approved form of identification if they did not do so with their request for application. Q And Commonwealth's Exhibit Number 11, can you

identify that, please? A Exhibit Number 11 appears to be another -- another

similar press release that was issued October 24th. Q And at the bottom of page 1, does that address the

issue of identification? A Q A Q A Yes, it does. In the same way as it was addressed in April? You're at the bottom of -Uh-huh. "Pennsylvanians who are voting for the first time

or are voting for the first time in a precinct are required to provide a copy of one form of identification with their application or absentee ballot." Q Yes.

Now, is that interpretation stricter than the

department's interpretation on provisional identification? A or -Q As far as everyone needing to provide -- let me ask Is it stricter than the department's interpretation


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

this -A Q A I would say --- going back to the HAVA check. Yes. In an overabundance of caution, I think the

idea here is if you're unsure, provide it; don't take the risk. MR. MASLAND: Okay. Just a couple other questions

very quickly, Your Honor. BY MR. MASLAND: Q There have been some questions about the

provisional ballots being available in the polling places on election day. Are you familiar with the formula that the

department has recommended to the counties? A Yes. I believe that formula was five percent of

the registered voters within a particular district. Q A Of the turnout or of the registered voters? Of the registered voters. Actually we did -- we And that includes

did calculate with an 80 percent turnout.

all registered voters, active and those that are inactive, because they're currently in that rather lengthy national voter registration act process and being placed in an active status and then eventually being cancelled if they do not respond to the notices. Q What is the history of the percentage of

provisional ballots used in precincts?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I don't believe we've cracked the one percent on a It's usually a fraction of one percent --

statewide. Q A Q

So five percent --- in terms of how many actually end up being cast. I'd ask you to turn your attention back to Exhibit This was the exhibit dealing

Number 3 for the last question.

with the printing of pollbooks, and the -A Q That's correct. The time at the top of that is 10:00 p.m. During the break, were you able to ascertain what


the current status of the printing of pollbooks is? A Yes. As of late this afternoon, the status was 50 And I believe --

counties had completed pollbook printing. I'm sorry.

I forget now what the number that -- that was in

process, but we're probably right around 60 counties that have either printed or are in the process of printing at this moment. MR. MASLAND: Thank you. No further questions.

MS. HEIDELBAUGH: Saturday Night Live moment. THE WITNESS:

Mr. Marks, that was almost a


I was cringing as I was

imagining you taking a header into that lectern. MS. HEIDELBAUGH: I've done it before.



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Mr. Marks, it's nice to meet you.

I've never

spoken to you before. A Q Hi, Heather.

My name is Heather Heidelbaugh.

You would agree with me that the SURE system as of

today has reliability problems? A I guess it would depend on -- on how you define But it is -- it has As I said before, I

"reliability" and from what perspective. not yet met my over-demanding standards. want it to be perfect. Q

I'm not talking about the system being accessible.

I'm talking about reliability. A Reliability? There are intermittent issues

regarding reliability, yes. Q A Okay. And what are those?

Those would be the same issues that I discussed

regarding the blocking that occurred between the 10th and the 14th and some of the isolated issues regarding the application 14 errors. I can point out that the help desk receives calls probably on a daily basis; onesy-twosy type calls. gets a particular error message. and it goes away. Somebody

They have to log back on,

It would be just like any person's

experience with a computer or a large database. Q A Yeah, I'm not talking about access. I'm not --

It's reliable if that's your question.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q A 2004. Q


I'm talking about reliability.

Yes, it's reliable. Now, were you working with the SURE system in 2004? I was not working directly with the SURE system in


I'm going to hand you -- this is a very I don't

lengthy report, and I just was able to access it. have a copy, but I'll show the Court a copy.

Are you familiar with the Statewide Uniform Registry of Electors In-Process Quality Assurance Review that was done in 2004? A Q A Q A Yes. Have you ever read it? I have read it. What does it say? At that point in time, there were a number of

recommendations made regarding the environment and what kind of improvements needed to be made to the environment. not read it recently. I have

It was something I read back in April

in preparation for taking over this position, so -Q And you recall that reliability of the SURE system

was a huge problem as -A Q A It was. As talked about in this 2004 report? Correct. And that's why the department embarked on


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the hardware hardening project that was completed last year. Q Well, the hardware hardening project didn't have

anything to do with the software reliability, did it? A Q The software reliability, no. Right. So really since 2004 when this audit was

done, which was required by the state and was performed, there have been no corrections of the software reliability problems as -- as referenced throughout this January 30, 2004 report, correct? A software. Q A I believe there have been corrections to the I could not cite them. You don't know? I was not in this position during that entire

period, but I'm certain someone in the department could testify to that. Q A Q A But you're here today. It's not the most -You're here today. Yeah. On that particular issue, regarding going

back to 2004 and what's happened between now and then, I couldn't fill in all the gaps on that. Q I understand that. Okay. You've only been in the

position since April.

But -- but you are the witness that

the secretary has put up as a witness who has information about this system?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Right. And as I understand it, in 2004 when there was an

audit performed by the state, that this report indicated that there was huge reliability problems, correct? A I don't know that I would say "huge reliability Yes.

problems," but there were reliability problems. Q Okay.

And there has been no fix of those

reliability problems in the ensuing four years, correct? A Q A I believe there have actually. Okay. What evidence do you have?

Again, I am not -- I know that after -- there was a That wasn't a useless exercise.

purpose for doing that.

Obviously the recommendations that were made, the vast majority of them were acted upon. I'm just not the most

qualified person to testify on specific details about what improvements were made to the software. Q A I understand -But enhancements have been made to the system, and

enhancements will continue to be made to the system. Q A Q A I understand. I'm not criticizing you.

I don't believe you are criticizing me. I'm not. I'm just trying to be clear that I may not be able

to tell you which specific enhancements were made between '04 and '08.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I understand that. But I know enhancements have been made. Are you able to provide this Court under oath with

any solid information on the -- the changes on the reliability end of the SURE system? information? A Q I do not have concrete information. Okay. So in terms of most of your testimony today, Do you have any concrete

as I understood it, your testimony as -- as brought forward in direct has to do with the ability of users to access the SURE system, correct? A Q Uh-huh. Yes.

And you were not asked about reliability of the

data inside the system, correct? THE COURT: Can you hold on for a second? Yes, sir.


Can you ask those folks to have their

From now on, can we please hold

the in-and-out of the courtroom and chats outside, please? THE COURT: this again, please? MS. HEIDELBAUGH: THE COURT: BY MS. HEIDELBAUGH: Uh-huh. Could you take a good running start on

Thank you.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


It's my understanding, sir, to repeat, that the Is

direct examination dealt principally with access issues: the SURE system up, can data be obtained? A Q A Q That's correct. That was your direct testimony, correct? That is correct. All right.

And your direct testimony today did not

deal with the quality of the data that's in the SURE system, which is the reliability issues, correct? A Q That's correct, not directly. Okay. And that's because you've been in this

position a short period of time and you don't know, correct? A I -- I wasn't aware that the complaint dealt with

reliability of the data. Q A Okay. I thought we were talking about the accessibility

of the system and whether the data in the system was accessible at all times. complaint. Q Well, you are aware, sir, that there are -- that That's my recollection of the

there are complaints since 2004 to present about the reliability of the data in the system, correct? A I'm not aware of any recent ones, no. But I am,

again, familiar with that document. Q Okay.

I have read it.

Well, if there were complaints about


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

reliability in 2004 and there have been no changes to reliability that you can testify to, then there hasn't been any improvement on the reliability end, to your knowledge. Is that correct? A Q A Q To my personal knowledge, no -Your personal knowledge. -- I could not cite what those improvements were. Okay. So when a user goes into the SURE system, as

I have, there are times in which data can be requested and the data that is received can change per request. The same

request can be asked, and different answers can be received. And that's part of the reliability problem, isn't it? A You're talking about the fine-tuning of the

querying within the system. Q A Q A Q I'm talking about the data received -Yes. -- by the -- by the requester. The data received -You type in "Robert A. Smith" three times, and no You type in "Robert A. Smith" Are you aware of

Robert A. Smith will come up.

a fourth time; Robert A. Smith will pop up. that? A no. Q

I'm not aware of any specific instances recently,

But that has been an historical problem of SURE,


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

hasn't it? A Q I believe it was at that point in time, yes, 2004. So when the election division is checking

registrations, the data that they have to check it against has to be accurate, correct? A Q Correct. And if there's reliability problems, then the

checking process can be internal -- inherently flawed, correct? A Q If there's reliability problems with the data, yes. Now, your experience, as you testified to on

direct, has been lengthy with the State, in the Commonwealth, in the Department of -- Bureau of Elections, correct? A Q A Q A Q Correct. And I didn't understand -Again, a matter of perception. Oh, I'm sorry. Depending on how you define "lengthy." The point that I'm trying to make sure, sir, is Is that right? Six years.

that you are not a computer professional. A Q A Q A I'm not a computer professional. Okay.

You don't have a degree in computers?

No, I do not. You're not a software engineer? No, I'm not.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q A Q been? A Q A Q

You don't write software language? No. You don't do programming? Nope. You're not part of the IT department and never have

That is correct. You're an administrator? Correct. All right. And your testimony regarding being a

legal assistant -- I don't know this information, so I'm just asking. A Q A Q A Q A Q Are you a lawyer? I am not an attorney, no. Okay. Are you a paralegal?

I'm not a paralegal. Have you had any legal training? I have not had any formal legal training. So on-the-job legal training? That's correct. Okay. So when you were a legal assistant, that was Is that

on-the-job legal training about election laws. right? A Q That's correct. Okay.

Now, the other area that I want to talk to

you about today is the instructions on the absentee ballot


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

itself and the -- the absentee ballot and the instructions. Nowhere on that absentee ballot does it say to the voter to supply identification if you're a first-time voter, does it? A Q Not on the absentee ballot, no. Okay. And when you said under your direct

testimony over -- in an overabundance of caution that you have issued a number of directives to the county, if you really wanted to engage in an overabundance of caution, wouldn't it be rather simple to put on the absentee ballot itself and in the instructions for the absentee ballot you must supply identification if you're a first-time voter? A Yeah, I believe we actually crafted additional, But the

supplemental instructions that the county could use. county would ultimately insert a slip in that if some additional document was -Q

Why doesn't the Secretary of State -- why doesn't

the state put that right on the ballot itself? A The absentee ballots are actually prescribed by

law, if I'm not mistaken, the form of it. Q So are you saying there's a law that -- I'll hand

you a copy of the absentee ballot. MR. MASLAND: This is the application. Application.


You're talking about the application.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Oh. BY MS. HEIDELBAUGH: Q A The application -Oh, the application would be prescribed by the I'm sorry. You were referring to the

secretary, yes. ballot. Q A Q

I apologize. That's okay. Let's take both. Let's do both, one at a time.

That's the -- I've handed you the application. A Q Yes. Does anywhere on there say a first-time absentee

voter must supply identification? A Q A Not on this -- on this application. And why not? Why it doesn't -- to be honest, after this

experience, I'm sure we will discuss adding a -- another page to the application. This is really a copy of the card form, That is primarily

which is considerably smaller than this. used by the counties. on it. Q A Q to do? So you could do it? We could squeeze it on there.

The other side has mailing information

I'm sure we could.

So that's something you're -- you would be willing


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I'd be willing to do it, yes. Okay. Now, on the actual ballot, the absentee

ballot, does it say, first-time voter, you have to supply identification? A Q A Not on the ballot, no. Why not? Well, the ballot -- as I said, the ballot is It has to be primarily in the

essentially prescribed by law.

form of a paper ballot or a ballot card used with an electronic voting system. be provided on there. I'm not an attorney. And only certain information can

I'm not saying -- as you pointed out, I'm not saying that it couldn't be

added, but typically we leave it at what the law requires. Q All right. So the law clearly requires ID for

first-time absentee ballot voters? A Q A Q If you're referring to the federal law, yes. Yes. Okay. And --

If you register by mail. Right. And so you know of no law that prohibits

that sort of instruction to the first-time absentee ballot voter? A Q I'm -- I'm not aware of it, no. Okay. And that would be something that your office

would certainly be willing to consider to change? A If -- yeah. If we can put in a fourth or fifth


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

location to make it easier, absolutely. Q Now, you're here to testify on behalf of the Do I

defendant, the Secretary of the Commonwealth.

understand it correctly that the Secretary of the Commonwealth does not want fraud in the process? A Q That is correct. Okay. Yes.

And so I assume that the secretary is

concerned about the fraudulent voter registration problem with ACORN. A fraud -Q A Q Okay. And what -Is that right?

The secretary's concerned about any allegations of

-- or voter disenfranchisement. Well, there's -- you have no evidence of voter

disenfranchisement, do you? A Q A Q I don't, no. No. Okay.

I'm just saying, this is all taken very seriously. And what is the secretary doing in regard to the It is

ACORN -- ACORN fraudulent voter registration problem?

widely reported in the press, the FBI investigation and the four pending prosecutions. A Q A What is the secretary doing? Yes. Within his authority, he's essentially instructing


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the county boards of elections or -- I don't know that he's personally doing it, but we've told counties that they can turn any of that evidence over to their district attorney's office -Q A Q A Q What I'd like to know --- which has the authority -Yeah, I'd like to know --- to prosecute --- since you've worked -MR. MASLAND: If she could let him finish answering

the question, that would help. THE COURT: Yes. I apologize.


Since you work in the department and you work at

the -- do you work for the secretary? A Q I do, yes. What is he -- what has he personally done in regard

to this ACORN issue? A I couldn't give you a list of what he's -- what But I --

he's personally done. Q A my head. Q

Can you state one single thing? No, I couldn't state a single thing off the top of

You admit obviously per the exhibit that you have


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

provided that the SURE system was down on a number of occasions? A I wouldn't say it was down. But it was certainly

running slow, and many users were -- were unable to access it at certain times of the day. Q A Q Yes.

Do you know who Robert Lee is? I do, yes. Are you aware that he called the SURE system a

system designed for Mayberry, not Philadelphia? A Q That sounds like Bobby. Yes.

And he's one of the people that you were asked to

review his affidavit that said there was nothing wrong with the system? A I was asked to review his affidavit actually -MR. MASLAND: THE WITNESS: He did not --- regarding the pollbook. I don't

think I read his affidavit, if I recall correctly. BY MS. HEIDELBAUGH: Q A You did not read the affidavit of Bob Lee? No, I -- my recollection is that I was presented

with a copy of the pollbook from Philadelphia that would have been included with the affidavit, if you're referencing my testimony. Q A I was, sir. I could be wrong. It's been a long day, so...


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I understand, sir.

And there certainly is a

recognition by the secretary's office and you that there needs to be a software update for the SURE system since it was originally started in 2002. A Yes. Is that right?

I believe that it's been our position that we

will continue to enhance the system. Q And it was -- it was going to be implemented in

September of this year, but there were so many complaints that you decided not to -- not to go live with it, correct? A Yes. That was the rehosting, which basically would

have changed the basic platform that it's built on from -Q A Q Why couldn't that --- Access to SQL. Why couldn't that have been done six months earlier

so it didn't interfere with this process? A I'll be honest, I was not in the decision-making I would imagine there were You know,

process regarding the timing.

probably a number of issues, budget constraints.

this is state government, so it's complex, as I'm sure you can imagine. Q Would you admit to me that the placement of

thousands of duplicate registrations into the system has stressed the SURE system? A I think -- yes. Any large volume, unprecedented --

unprecedented number of applications would stress the system.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

It would stress any system.

And we've -- we've worked

through it, and I think the system has performed well overall. Q Now, you talked about provisional ballots. And it

was your -- was it your determination -- did you have the final say that the provisional ballots that will be supplied at each polling place are going to be five percent of the current existing registered voters? A Q A I did not have the final say. Who was that? I believe -- and I don't even know that the That's a recommendation. But that is a

department has the final say.

There's no specific statutory formula.

recommendation made by the department -- ultimately I guess it would be the Secretary of the Commonwealth -- regarding what we believe would be proper preparation for the election. Q Because as I understood the process -- and please As I understood the process, there was

tell me if I'm wrong.

a recommendation that's issued by the secretary to each individual county. And I thought that the way that it worked

was that each individual election division director, he or she decides how many provisional ballots. I did not think it

was a directive that must be fired by the -- followed by the secretary. A Is that your understanding? If you're -- if you're talking about who has



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the authority to make the decision as to how many provisional ballots are distributed, then yes, it would be the county board of elections that would have that authority. Q Okay. And so when you say there's going to be

enough provisional ballots and that the recommendation was five percent, that's only a guideline? A Q A Q That's correct. Every individual county -That is our recommendation. As I understand it, every individual county

election division director decides how many provisional ballots shall be at each precinct, correct? A Q Correct. Yes.

In fact, are you aware in the year 2004 in

Allegheny County, that the judge of elections, Mark -- I mean, the elections division director, Mark Wolosik, only provided 13 provisional ballots at each of 1,347 precincts, which was clearly not enough, and there were riots in the polling place because there weren't enough provisional ballots? A Q A Were you aware of that? I wasn't aware of the riot part. Were you aware --- might be a little more colorful. And I was That --

aware that there was a shortage of provisional ballots -Q Were you aware than an election --


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right.


Just -I'm sorry. I'm sorry.


Take your time. I'm sorry. You're right. You're


I apologize many times. THE COURT:

I'm sorry.

Let him finish what he's saying. I'm sorry.


But ultimately this -- these are kind We base this on

of why these recommendations are made. experience.

And I'd be willing to bet that Allegheny -- I

have not seen the survey conducted by the elections division yet, but I'd be willing to bet Allegheny is providing a heck of a lot more provisional ballots now than they did in 2004. BY MS. HEIDELBAUGH: Q And are you aware that in Allegheny County, in

Oakland, during the 2004 election, because of the failure to have enough -- not have enough provisional ballots, that the judge of elections allowed voters to vote on the machines; the judge of election was ultimately put into custody; the election machine was actually impounded; and there was an order of court directing that the voting at that precinct stop because of the complete chaos that occurred in those -in that -- in those precincts in Oakland? A I'm -- I do -- I can't remember in great detail,

but yes, I remember there were issues regarding provisional


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

balloting in Oakland and we received calls directly from the county ourselves on election day. Q So as I understand it -- to wrap up on the

provisional ballot issue, do you know if the secretary has authority to order that each county provide a sufficient number of provisional ballots? A I don't know that he has explicit statutory

authority to tell them that they must have a certain percentage of provisional ballots, no. Q And you would agree with me, sir, that if there are

enough provisional ballots, that leads to more order in the election process and less chaos? A I -- if -- if they become necessary, yes. If it's

a choice between you have a lot more than you need or you run out, then yes. Q And lastly, you would agree with me, sir, that a

vote on the machine is a vote that is lost forever but a vote on a provisional ballot can be checked and examined and if valid, can in fact be added to the final vote totals? A Q A Not knowing what you mean by "lost forever" -There's no way to trace the vote. Assuming you mean there's no -- there's no way to

trace it, then the answer to that question is yes. MS. HEIDELBAUGH: No further questions.



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY MS. SIMPSON: Q Mr. Marks, the information on the web site and as

provided to the counties for the upcoming election clearly require that for first-time voters voting by absentee ballot, unless they fall into one of the exemptions -A Q correct? A Q That's correct. So with their ballot, they must enclose a photocopy Is that correct? Correct. -- are required to provide identification. Is that

of some sort of photo identification. A

We actually prefer -- if you look at the

instructions on our web site and on the form, I think we prefer that they provide it at the front end of the process with the application. It's easier. There's no chance of

confusing or getting confused and putting it in with the secrecy envelope, which would actually invalidate the ballot. But yes, the idea is that -- to notify the voter that they would be required to provide identification if they're voting for the first time. Q Okay. And with regard to the duplicate voter

registration applications, if -- if there were a -- an 18-year old who decided or was approached or decided to mail in a voter registration application and filled out the application fully and completely but then days later passed


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

their driving exam and filled out this same application at PennDOT, that would be a duplicate application, right? A Q Yes. And there's no -- there's no fraud or problem. I

mean, that's what the system is designed to check, that -that Mr. Teenager, who is a first-time voter, registered by mail and also coincidentally registered at PennDOT, correct? A Q A Yes. I mean, that's -Yeah, if it were inadvertently done. I guess it You do have

would really go to the intent of the individual. the option of not registering at PennDOT. Q Right.

But there are many innocent reasons why

people fill out voter registration forms when they are already are a registered voter. A Yeah. Is that correct?

There's a variety of reasons, including

forgetfulness, which I think was cited earlier. Q Forgetfulness, lack of understanding of what the

regulations are, failure to vote for a long time -A Q A Q Right. -- changes of name and the like? Right. With regard to candidates and political parties,

does the SURE system provide information to those individuals who request it lists of voter registrations?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



The department provides a full voter export,

which is essentially a statewide list of all registered voters within the Commonwealth. And we also just recently

within the past month have decided to ease the burden on the counties a little bit and provide a list of absentee voters, those who requested an absentee ballot on a statewide level as opposed to making the parties go to each of the 67 counties. Q So that type -- that information about who is Is that correct?

registered to vote is readily available. A Q It is, yes.

I believe you testified that the statute compels

the secretary to forward voter registration applications that he receives to the various counties. A Q That's correct. And what if those voter registration materials -Do they still forward Is that correct?

that the form is not fully completed? that to the county? A Q Yes. That's correct.

And are you aware of any law or regulation in

Pennsylvania that requires any third-party registration agency or system or campaign to similarly forward applications, even if they are not complete or contain incorrect information to -A I'm not aware of any law that compels a third party


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to forward registrations on.

I know there are laws that

prohibit individuals from preventing someone from registering to vote or throwing hurdles in their way. But I'm not aware

of a specific law, other than the one that relates to the Secretary of Commonwealth. Q And that law requires the secretary to forward

those applications no matter what they look like, no matter what information they -A Right. It does not require any review necessarily

by the Secretary of the Commonwealth or any of his designees. Q Okay. I know you indicated that you had not read But do you agree with his statement

Mr. Lee's declaration.

that Philadelphia's ability to conduct a fair election is not jeopardized, as the petitioners claim; in conjunction with the Department of State, Philadelphia County is ready and able to administer a fair and honest election this year? A Q I agree that they're ready and able, yes. And do you agree that every county in this

Commonwealth is ready to -A Q I'm --- offer -- or provide a full and fair election

this year? A I believe that's the case, yes. MS. SIMPSON: questions. Thank you. I have no further


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exhibits.


Any redirect? No questions, Your Honor.


Are we finished with this witness? Yes.

MS. SIMPSON: THE COURT: leave if you wish.

You may step down, and you're free to

I'm not sure what documents you have up there. THE WITNESS: These are actually copies of

THE COURT REPORTER: Thank you. THE WITNESS: MR. MASLAND: additional documents.

You can leave them here.

Thank you. Your Honor, at this time, I have no I'd move for the admission of

Commonwealth/Respondent's 1 through 20. THE COURT: The only question I had is the copies Do you have

that I have don't seem to be marked properly. them tagged? THE COURT REPORTER: Yes.

I have the originals.

They're stickered and everything. THE COURT: All right. So we have Commonwealth's

Exhibits 1 through 21? MR. MASLAND: THE COURT:

Let me just check here. One through 20.

Any objection to Exhibits 1 through 20? Just for the record, since my



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

affidavits were objected to by counsel for ACORN, I just want to place an objection on the record, the same objection. THE COURT: All right. They're going to be So those are They're

received over your hearsay objection.

affidavits -- those are Exhibits 12 through 20. received over your objection. received without objection.

And Exhibits 1 through 11 are

(Commonwealth/Respondent's Exhibits Nos. 1 through 20 were admitted into evidence.) MR. MASLAND: THE COURT: I have two brief witnesses that -I need to

Just give me a second here.

catch up with all my rulings. Okay. You have some other witnesses? Yes, Rebecca Halton. Offer of proof?



Rebecca is our assistant press

secretary, and she will speak to the issue raised by plaintiff as to what the secretary has been doing or speaking out or saying about the issue of voter fraud. MS. HEIDELBAUGH: a collateral issue. I'm just going to object. That's

This witness wasn't disclosed when we I think this is an

all disclosed who our witnesses are.

attempt to minimize the PR implications from the previous testimony of -THE COURT: You raised it.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Yes, I did.

You raised it. And I got --

MS. HEIDELBAUGH: THE COURT: based on relevance.

So I'm going to decline your objection

I didn't catch the last name. MR. MASLAND: Halton, H-A-L-T-O-N.

(Whereupon, Rebecca Halton was sworn.) THE WITNESS: THE COURT: So I'm in the hot seat now.

Let me ask my court officer just to

make sure that we have all the used water cups out of there. Give these witnesses a clean -MR. MASLAND: time we're done. THE WITNESS: Or dead. Hopefully she won't be parched by the

DIRECT EXAMINATION BY MS. MASLAND: Q Ms. Halton, could you state your title and how long

you've been with the department? A Yes. I am the deputy press secretary for the I have been in this

Pennsylvania Department of State.

position since March 17th, 2008, and I've been with the Commonwealth since January of 2006. Q A Where were you before you came to the department? Prior to the Department of State, I was in the


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Governor's Office of Communications.

And prior to that, I

was in the Office of Communications at the Department of Labor and Industry. Q A Q A Okay. Yes. Where and when you did graduate? I am a 2005 graduate of Messiah College with a Did you go to college?

bachelor's in English. Q Thank you. Now, are you familiar with the recent

allegations regarding voter fraud involving ACORN and potentially others? A Q Yes, I am. Are you familiar with pronouncements or actions

that the secretary has taken with respect to those allegations? A Q Yes, I am. Could you relate them to the Court, please? MS. HEIDELBAUGH: of hearsay. This -Let -Am I allowed to say something? Hang on. Go ahead. I'm going to object on the basis



The hearsay objection is overruled. BY MR. MASLAND: Q

Have you prepared any press releases on this issue?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



I've personally drafted press releases.


also assisted with drafting and editing testimony given by the secretary and other executive staff members of his department, including Deputy Secretary for Administration Harry Van Sickle, under whose deputate falls the Bureau of Commissions, Elections and Legislations. I've also helped prepare marketing materials and other public means of informing voters and different advocacy and election-related organizations. I've also personally

been in the room as Secretary Cortes directly and personally spoke with members of the media about this issue. think that about covers it. Q A What has the secretary advised people to do? He has advised -MS. HEIDELBAUGH: Objection, Your Honor, hearsay And I

offered for the truth of the matter asserted. THE COURT: I'm going to receive it for the limited

purpose of establishing the course of conduct of the Secretary of Commonwealth, who's a party to this action. THE WITNESS: Well, as a spokesperson for the

department and for Secretary Cortes, I can say that he has encouraged every individual, organization, group, however you'd like to put it, anybody who comes into contact with the suspicion of or a substantiated claim of voter fraud of any kind is to report it directly to the appropriate law


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

enforcement agency. Within that, Secretary -- and the department acknowledges that the department itself is not one of those law enforcement agencies; and, therefore, we encourage people to report it to directly to a district attorney, to the U.S. Attorney if necessary, the Pennsylvania Attorney General. And this is all information that we've made available to the public, and the secretary is directly quoted in press releases and other informational materials and interviews. MR. MASLAND: THE COURT: Thank you. No further questions.

Hang on. Sorry.

Hang on.


The other lawyers get a chance to ask

I'm new to this.

CROSS-EXAMINATION BY MS. HEIDELBAUGH: Q Your job is to have your boss get in the press, in

the light most favorable; and that's -- that's a good day for you, right? A No. That's actually not part of my job

description, believe it or not. Q Okay. And did you set up some interviews with

Mr. Masland out in the hallway today? A Yes, I did, because my job is to help facilitate


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

opportunities for the department to share its information, whether that's through an interview or a media advisory or a press release. Q That's my job.

And what has the secretary said, since my hearsay

objection was overruled, specifically about ACORN? A Well, that I can only speak to from a press report

that I'm aware of. Q A Q I'm not asking you about that. I want to know --

What he has specifically said about -I want to know, since you're on the stand, what has

the secretary specifically said about ACORN? A I can't attribute any specific statements to -- or

-- to ACORN as an organization that -MS. HEIDELBAUGH: THE WITNESS: THE COURT: Thank you. No further questions.

-- I can think of.

Ms. Simpson? Nothing. Okay. Thank you.


Any redirect? No, Your Honor.


You're free to step down. Thank you. I have one final witness as a result I'd like to call the


of cross-examination of Mr. Marks.

former director of the SURE system, Timothy Ruppert.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him, too.

(Whereupon, Timothy Ruppert was sworn.) MS. HEIDELBAUGH: THE COURT: Offer of proof?

What's the last name again? Ruppert, R-U-P-P-E-R-T.


Mr. Ruppert will able to address the specific issue about reliability and software changes raised by Ms. Heidelbaugh as a result of the 2004 quality assurance review. THE COURT: All right. Go ahead.

DIRECT EXAMINATION BY MR. MASLAND: Q A Q A Q A Q A Mr. Ruppert, what is your current title? I'm the director of MIS at the Department of State. And how long have you been that director? Since November of 2007. Before that, what was your position? I was the project manager for the SURE office. How long did you hold that position? From February 2004. THE COURT: everybody hear him? MS. HEIDELBAUGH: THE COURT: I cannot. I'm having difficulty hearing Okay. Just hang on a second. Can


Mr. Ruppert, Mr. Ruppert, take it easy. Speak up so that we can hear what you have to say.

Slow down.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



Hopefully it's going to be a short

And let me back up because I know

this is the concern of petitioners. BY MR. MASLAND: Q Relate to the Court briefly your educational

experience. A science. career. I have a bachelor of science degree in computer I've basically been in computer science all of my Previously coming to the Commonwealth, I was with

Microsoft for about three years, working at the Office of Administration. Q A Q A Q And you came to the Commonwealth from Microsoft? Yes, that's correct. Where was your college degree? Shippensburg University. Are you familiar with the 2004 quality assurance

review that was conducted for the department? A Q review? A Q Generally, yes. Has the department taken any action -- did you, as Yes. Are you familiar with the recommendations of that

the project manager for SURE, take any action as a result of


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that quality assurance review? A Yes. We've done many updates to the software as

well as hardware to the environment over the last four years in regards to the info center report. I believe there's only

one outstanding item that has not been addressed. Q A What is that? That's the one item that they had noted was

using -- changing the software from Microsoft Access to some newer technology. Q Okay. We're in the processing of doing that now.

Based on your experience with the SURE

system, is it reliable? A Yes. MR. MASLAND: Thank you. No further questions. I'm going to object.

MS. HEIDELBAUGH: MR. MASLAND: THE COURT: nature of an opinion.

I object.

If I didn't ask it, she would. Hang on. That was in the

Hang on.

Do you want to voir dire him on

qualifications before I accept that opinion? MS. HEIDELBAUGH: I object. There was no

foundational -- there was no foundation laid to -- to make him an expert. I would be able to voir dire him after the

foundation was laid. THE COURT: I felt that there was a sufficient

foundation made, but I didn't know that we were going to be getting into an opinion.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Do you want to voir dire him on his qualifications? MS. HEIDELBAUGH: I'd rather just cross and hold --

reserve my objection, and then perhaps the Court can rule on whether it's admissible. THE COURT: All right. Well, at this point, I'm

overruling your objection. express an opinion. MS. HEIDELBAUGH: THE COURT:

I felt he was qualified to

All right.

Otherwise -I can voir dire.


Otherwise, I'll give you voir dire on

I'll voir dire.

CROSS-EXAMINATION (As to Qualifications) BY MS. HEIDELBAUGH: Q A Q A Q A Q A Q A Hello. Hello. Your first name, please? Timothy. Ruppert? Yes. When did you get called today to testify? About 20 minutes ago. And who called you? Larry Boyle.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Who? Larry Boyle. THE COURT: Qualifications, please. We'll get into

the rest of your examination later. MS. HEIDELBAUGH: a context here. THE COURT: BY MS. HEIDELBAUGH: Q A Q A Q A Q A You graduated from college. Yes. And you have a degree in what? Computer science information technology. What year did you graduate? December 1990. Where did you work after that? A medical software company. It was called Keystone Is that right? Qualifications is the context. I understand. I'm trying to get

Medical Systems. Q Now, computer science information technology, are

-- are you a computer software engineer? A Q A Q design? A No, I do not. You could say that. Do you have an engineering degree? No, I do not. Do you -- do you have a degree in computer software


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q right? A Q A Q


So you have -- you went to Shippensburg,

That's correct. And your degree is out of which college? Bachelor of science. Science. It's a science college.

Have you ever wrote -- have you ever

written software? A Q A Yes. What? Various conversion programs for the medical

software company that I worked for. Q Is that software program similar to this -- the

SURE database? A Q No, it is not. Have you ever written software that's similar to

the SURE database? A Q No, I would say I have not. Have you ever seen the code for the SURE -- you

know, the code language for the SURE database? A Code from the perspective of the software, no; from

the database, yes. Q A works. Explain that. There's two pieces to the way the SURE software There's a front end, which is basically the access, It also contains the business -- some of the

user interface.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

business logic. And then the database contains where the data is and also contains what we call stored procedures that allow updates to be completed, if we're doing retrieval. Again,

another layer of business logic is built into the database. Q A Q A Q A Q A Q A Q And which code are you familiar with? More of the SQL database, the back end. The back end? Yes, that's the database -The data stored product? Yes. And what document gave you access to that code? I'm sorry. I don't understand your question. Isn't the code confidential?

Is that confidential?

I'm not sure I understand your question. You actually have written code that you can see and

that you can manipulate? A for it. Q A Q A Q From the SURE's perspective, I've not written code I've seen the code. Just the database.

And you have seen the code? For the database only. And it's not confidential? Not at this point. Okay. It is not.

And what is the document that gave you the

right to see that?


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


We purchased the software from Accenture I'm going We had also created an enterprise license

to say a year ago.

that gave us access to be able to view the code in the database. Q A itself. Have you rewritten -Excuse me. Let me rephrase. View the database

Prior to that enterprise license agreement, we were

not able to even see the database. Q code? A Q Not personally. Okay. And has any of the work that you've done Right. And have you been able to change any of the

been on reliability? A From the -- from the office's perspective? I need

you to ask the question a little differently.

When you're

asking me have I changed the code, I'm assuming you're asking me personally. Q A Q A Oh, yeah. As opposed to the department. No, you personally. Okay. I have not made any changes to the code in

any way, shape or form. Q So you have no knowledge about the changes to the

code, correct? A Just from a requirements perspective, I do.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



You haven't done it yourself?

Correct. You don't know what the changes have been, correct? Correct. And you don't know how it affected reliability? I just know what the end result is based on our

requirements. Q A that. MS. HEIDELBAUGH: qualified. The -Overruled. Okay. Okay. I don't think he is Sir, you don't know how it affected reliability? From the perspective of the code, I can't answer



Do you have questions on regular

Is he -- he's finished?

I gather; he sat down. CROSS-EXAMINATION

BY MS. HEIDELBAUGH: Q Do you have any complaints on reliability with the

SURE system? A We have concerns about issues with the SURE system Yes.

from a functionality perspective. Q On reliability --


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


Reliability, not that I'm aware of. Okay. Well, what are the concerns?

There's a -- there's a variety of different user From a reporting

interfaces that they'd like to have done.

standpoint, there's been a variety of requests that they ask for; give me some flexibility, can I do this with a report, can I get this information. Some folks have asked for

different types of reports to be created that we don't have available today. Q Screen colors, things of that nature.

Well, I'm really -- my concerns are not about

access with your -- your testimony -- my concern is not about screen color. My concern is about reliability. And I asked

you if there was any complaints with reliability, and you said there are some concerns with -- what was the word you used? A Just basically the functionality of the software,

how it appears to the user. Q So under oath, you know of no complaints with

reliability of the SURE system? A That's correct. MS. HEIDELBAUGH: MS. SIMPSON: MR. MASLAND: No. Just one clarification. No further questions.



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


I believe it was obvious, but when you were saying

they ask for this or they ask for that, are you referring to the county users? A Yes, I am. MR. MASLAND: THE COURT: Thank you. That's all.

Anything else for this witness? You're free to leave if you

You may step down. wish. THE WITNESS: THE COURT:

Thank you.

Anything else from the Commonwealth? We have nothing further, Your Honor.


I believe our exhibits have been admitted, and we would rest. THE COURT: Any rebuttal? No.


Are we closing the record here? Yes.


Anything else to come into the record? The petitioner has closed the


Anything else? No. The record is closed.


All right.

How much time do you want for argument? MS. HEIDELBAUGH: THE COURT: Ten minutes.

Can you live with ten minutes each or


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

less? MR. MASLAND: MS. SIMPSON: THE COURT: I can live with less. I can live with less, much less. Let her fly. May it please the Court. Since I



was prevented from giving my opening, I will give -- I will give my closing. Thank you very much, Your Honor.

Two hundred and twenty-two years ago, Benjamin Franklin stated upon signing the Declaration of Independence from England, when asked, well, doctor, what have we got, a republic or a monarchy, he said, a republic if you can keep it. This great experiment that we live in, the Commonwealth of Pennsylvania, that is the birthplace of democracy, requires that the voting process be clean and free from fraud. As the founders of this nation stated when they signed the Declaration, publicly declaring their fealty to democracy, they incorporated into the document their knowledge of the risk they took. And they said in the

Declaration of Independence, we mutually pledge to each other our lives, our fortune and our sacred honor. time, they did pledge their lives. And at that

And they pledged their And the -- and the

lives so that we could have a democracy.

cornerstone or the keystone of democracy is the right to vote


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and a free, fair and open election. My clients presented this case to this Court and beg this Court's intervention to keep this experiment of Democracy in this great Commonwealth alive by drawing attention to and pleading with this Court for relief from oppression. And the oppression of which I speak, Your Honor,

is the oppression of voter registration fraud oppression. When voter registration fraud occurs, for which we have a bounty of evidence we have presented, the democracy is oppressed. The oppression occurs when fraudulent

registrations flood county election divisions and the election workers are oppressed with too many registrations to process. The SURE system becomes oppressed because it can't handle the crush of fraudulent and duplicate registrations. The voters become oppressed because valid registrations can't be processed. The candidates become oppressed because the

valid voter can't vote because he isn't properly registered. The validly registered voter is oppressed because his valid vote is diluted by an invalid vote. The candidate

is oppressed because invalid registrations are on the books, allowing for the possibility of absentee ballot fraud, multi-county voting and manipulation of the system with multiple registrations. ACORN is an organization with a proven record of


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

voter fraud oppression.

Whenever they are caught red-handed

by prosecutorial authorities, they have two well-planned and well-documented responses. First, they throw the particular employee under the bus and feign organizational knowledge. Secondly, they

attempt to divert the focus on their -- of their oppression by adopting a slogan without meaning, voter suppression. My clients, who are voters, a candidate and a political organization representing millions of voters, like the founders, realized that standing up for democracy has its risks. Luckily for them they do not risk their lives, but

they risk being called voter suppressors by actual fraud oppressors. We refuse to take the bait, Your Honor. We

stand before the Court with the confidence of one who has right on their side. The Secretary of the Commonwealth, Pedro Cortes, has expressed indignation in regard to the issues presented in the complaints of the voters, the candidate and the party whom I represent. Yet according to Mr. Marks and according

to his own press secretary, he has not uttered -- uttered a single utterance in indignation against the oppressor of the system. Your Honor, we respectfully ask that the Court take action and do so with haste. As to the secretary, we beg

that the system -- ensure that the SURE system is up


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

constantly between now and election time so that all the registrations in the remainder of the counties can check the date -- check the registrants. We request that the secretary require that all election officials in all counties require that first-time voters by absentee ballot require identification. And we also request that the secretary direct that each election division have sufficient numbers of provisional ballots because of the fraud of ACORN so that all people are allowed to vote but fraudulent registrations and fraudulent voting does not take place. As to the ACORN defendants, Your Honor, we ask that the Court enjoin the ACORN defendants from all attempts to encourage voters, if they have a for voter contact provision, who have submitted false or duplicate registrations from voting and attempting to vote in the 2008 general election. We ask that the Court enjoin the ACORN defendants and require them to provide to us, the plaintiffs, the lists of registrations that they have obtained in Pennsylvania and segregate them as to their own lists that indicate that those registrations are fraudulent. We ask that ACORN fund public service announcements immediately to educate all first-time voters about the requirements to present identification and not to vote fraudulently.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

We ask ACORN to comply with the King County settlement and compliance agreement. An item that I did not

include in my papers, but which I orally amend, I ask that this Court order that ACORN not destroy any evidence as this matter may proceed. Thank you, Your Honor. MS. SIMPSON: Your Honor, the plaintiffs have

submitted Exhibit 9 and for the convenience of the Court and your law clerk have helpfully provided some citations to the record. I would also like to recommend to Your Honor and

your law clerk that you take a look at the September 17th transcript, pages 32 through 52; the September 24th transcript, pages 53, 57, 58 and 59; the October 1st transcript, page 52; and the October 15th transcript, pages 36 through 42, page 54 and page 58 through 60. I believe that when the Court reads these pages, you will find that the statistics that have been thrown around -- and I really mean thrown around -- in this courtroom are -- as to ACORN are as to the entire number of registrations. And the problems that Philadelphia

identified, not from ACORN, not from any one particularly identified entity but generally from the registrations they were receiving, the 58,000, that number of fraudulent was not ACORN's. It was, as you will see in the transcript,

attributed to all agencies that were submitting information.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The plaintiffs come here seeking an extraordinary remedy, which is a preliminary injunction, based on not one iota of evidence of voter fraud in Pennsylvania. What we

heard was the exegesis of a former employee who testified about things that happened in 2005, 2006. been to Pennsylvania. here in Pennsylvania. But she has never

She has never been to a -- an office She has never observed the training,

the counselling, the work, the checking, the verification of the registrations that were received. Once those registrations were received, they were appropriately bundled. The bureaus of elections were alerted

to the information that is -- was not able to be verified, that was questionable. It wasn't that all these documents They

were mixed up and thrown at the elections departments. were very carefully segregated.

And believing that every

voter application that they received had to be turned over, they faithfully carried out that duty. I believe when you look at the transcript from the Philadelphia commissioners, the -- specifically the October 15th transcript, you will find a full description of what the Philadelphia Elections Bureau did, how they did it and how they were able to find that some of the questionable or alerted or segregated applications contained, in fact, 100 percent good information and they issued voter registration cards, because they were actually better than


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

our people. this.

They had the equipment.

They were able to do

And you will see a statistic there that through the 6th of October, Philadelphia had received 298,037 voter registration applications and had found 14,673 of them to be not valid for some reason, whether they were duplicates, whether there were problems, whether they couldn't find the people, whether they got returns; a rejection rate of under five percent. This isn't a huge problem.

We have not one iota of proof here that someone is going to show up at the polls on Tuesday and get -- and pull that lever on that machine and vote fraudulently. If that happens, if a person shows up, it is -- and does so, it is not because of necessarily what ACORN did. It's not necessarily what PennDOT did in Motor Voter. It has

to do with the boards of election or the -- the actual poll workers not doing what they're told to do, and they are specifically instructed what to do. Your Honor doesn't need me to stand here and tell you what the requirements are for a preliminary objection -or a preliminary injunction. We have filed a brief. And I

do have an extra copy here if the Court would want one. There are multiple copies filed with the Prothonotary. THE COURT: I have one already. Okay. Good. I will rest on my -- on



1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

my brief for the legal arguments.

But I believe the Court

has heard here that ACORN has gone to the ends required of them. They have people -- they had people checking these They tried in every which way

voter registration materials.

to make sure what they were sending to the various elections departments were appropriately segregated so that those applications that should have been red-flagged were red-flagged right from the start. We do not have a database that will just generate out a list of all the people whose names we sent. You have

heard that those are contained on a -- on hard drives in the offices all over the Commonwealth. It would require a And

herculean effort to print those out, to provide those. those don't have any connection because they are not

identified as people who successfully registered to vote. They are merely those whose applications were sent to the various boards of election. And for what end? What's anyone

going to do with this information? And I would suggest to you that the remedies for an imagined ill are well beyond what is reasonable. And, in

fact, what the plaintiffs are trying to do is bootstrap cases, criminal cases, and try those criminal cases here based on rumor, innuendo, press -- press information and the like. There is not one scintilla of evidence that there


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is any voter registration fraud here.

There's not one

scintilla of evidence that there is voter fraud going on here. And without that, without even a suggestion that

that's going on here, a preliminary injunction cannot be granted. And with regard to the legal arguments, I rest on Thank you. Your Honor, Ms. Simpson, and Ms.

the brief.


Heidelbaugh, let me do a couple little housekeeping things for -- to assist your -- your clerk. First of all, there's been a lot of questions about whether there's a legal obligation to turns thing over. And

I don't think there's anything really clear in the law, but I would just point out a couple sections that the clerk might want to look at in 25 Pa. C.S.A., Section 1708 and 1711. Arguably, there might be some connection there, although it's not -- not a clean fit. Then also to assist your clerk, I would suggest after a long day like today, he really needs a good break, so I would encourage him to read the whole transcript because it will be enjoyable. a long time. It will be the best thing you've read in

Philadelphia may not be Mayberry, but it's And if you listen to the city But if you read

probably closer to a sitcom.

commissioners -- I'd love to listen to them.

the city commissioners' transcripts, they really are quite enjoyable.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

But with all seriousness, I would point out that on the October 1st, 2008 transcript, pay particular attention to page 28 with respect to voter ID. And the same issue, voter

ID, is dealt with on October 8th; I believe pages 12 to 16. The quote about Mayberry is on page 34 of the October 15th edition. And Bob Lee does go on in the next And he

sentence to say, "They made a lot of improvements." goes on. it. I mean, he still criticized it.

No question about Bobby Lee

As Mr. Marks said, "That sounds like Bobby."

is one of those people. We've heard a lot of sound and fury today, but I would suggest with respect to the secretary and with respect to the SURE system, it has really signified very little. will note that I made no objections today. You

I tried very hard I

not to object, even during Jon Marks' cross-examination. did not because I wanted to project what I think is the secretary's goal, and that is transparency. present facts.

We were here to

We were here to present what we are doing.

If the other side wants to take issue with that, fine, but we want to tell you what we've been doing. At the end of the day, it may sound more like the dry, Joe Friday kind of material as opposed to something that's really exciting as maybe Ms. Moncrief's testimony might have been. What we presented is not likely to be on

CNN as compared to that.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

But I would ask you to focus not on all of the smoke and not on what is not known or what is conjecture but to focus on what is known, to focus on how we have been preparing, as demonstrated I think through our exhibits and affidavits. This really reminds -- this case and plaintiffs' argument reminds me of the experience I used to have when I would put toys together for my children the night before Christmas. them. And I'd get the instructions out, and I'd look at

And I'd follow those instructions. I remember putting a big wheel together for my son.

And at the end of the night, after -- at two in the morning when I finished, I looked in the box and there were still parts there. worked. But I went over here with the big wheel, and it It worked fine. You know, I

I checked the pedals.

didn't think, even as a lawyer, that my son would fall off and I'd have a lawsuit on my hands. probably work. I said, this will

But there was still things in the box.

Plaintiff is staying look at the box, look at this 2004 report, look at all these other things that might be there. What I would suggest is look at the big wheel. And

we have a big wheel. are big risks.

And it is a big challenge, and there

And there's been a big stress on the system,

but it has performed. In the time -- from the time that we came here this


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

morning until we left, the number of counties that have printed their pollbooks went from 43 to 50. By the time the

Court is ready to issue an order, the number of counties that have printed their pollbooks will be close -- very close to the 67. And certainly by the end of the week, that's where

it will be. I would suggest that there should be some comfort in the fact that the secretary and the department has been working very carefully on this. Computers happen. Yes, problems happen. There will be

There will be logouts.

problems like that, but they are minor.

The significant

ones -- there were only a few in October -- have not presented -- prevented the processing of the voter registration forms. On the issue of voter identification, I think I've handled that sufficiently in the brief. more of your time on that. I won't take any

I think "appear" means appear.

And although there have been some allegations about absentee voting, always having to -- you know, the first-time requirement for voters to show ID having to apply to absentee voters as well, I think I adequately addressed that in the brief and you'll see the distinction. Provisional ballots, again, I think that that was addressed. We will have enough there, or we're recommending And I guess that really gets

that we'll have enough there.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to the point, as Your Honor may be familiar from yesterday's case, if you will, the Commonwealth only has so much authority to dictate things to the -- to the county boards of elections. If you look at Section 2621 of the Election Code, 25 P.S. 2621, it lays out the secretary's powers. 2642 lays out the county boards' powers. symbiotic relationship. Section

And it's -- it is a

We can't just dictate to them that

you must have 2,000 provisional ballots on hand just in case. We can't dictate that. to follow it. Code. So I would just suggest in closing that as -- as Ms. Heidelbaugh mentioned, the secretary took umbrage at the attacks on the department. And that's what he took umbrage Not the attacks on ACORN. I guess we could, but they don't have

And that's pretty clear from the Election

at, the attacks on the department.

The attacks on the department and the counties because, in essence, what this case is all about is fomenting fear on the part of the public and getting them to question whether or not their votes will count next Tuesday, getting them to question whether or not people are prepared and whether this is going to be a fair election. I would suggest in all sincerity that it will be a fair election; that the Commonwealth has done everything it can; the secretary has done everything he can.


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Thank you, Your Honor. THE COURT: Do you want me to schedule a hearing on I mean, this is

a final injunction, permanent injunction? the preliminary injunction. MR. MASLAND: THE COURT: No.

We're supposed to have another hearing. I understand, Your Honor, and I


would like to reserve my response in regard to -THE COURT: preliminary? All right. So I didn't really get a response from I'm Until you see what I do with the

anybody about that, so I'll figure out what to do then. not going to get a lot done -MS. HEIDELBAUGH:

Well, on the record, Your Honor,

on the record, I reserve -- if you allow, I reserve my right to answer that question after I receive this Court's order on my request for preliminary injunction. THE COURT: I'm not going to get a lot more done on

the case tonight, so don't expect me to rule on this tonight. I'll rule on it as soon as I can. Thank you very much. And you'll hear from me soon. It was an interesting day. We are adjourned.

(Whereupon, the proceedings adjourned at 7:41 p.m.)


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED:

I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the proceedings of the above cause and that this copy is a correct transcript of the same.

October 31, 2008

_________________________ Rebecca Toner, RPR

(The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.)


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