[House Hearing, 109 Congress]
[From the U.S. Government Printing Office]

                       THE HELP AMERICA VOTE ACT



                               before the

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


              HEARING HELD IN COLUMBUS, OH, MARCH 21, 2005


      Printed for the Use of the Committee on House Administration

20-790                      WASHINGTON : 2005
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                        BOB NEY, Ohio, Chairman
JOHN L. MICA, Florida                  California
JOHN T. DOOLITTLE, California          Ranking Minority Member
THOMAS M. REYNOLDS, New York         TOM BRADY, Pennsylvania
CANDICE S. MILLER, Michigan          ZOE LOFGREN, California

                           Professional Staff

                     Paul Vinovich, Staff Director
                George Shevlin, Minority Staff Director

                                VOTE ACT


                         MONDAY, MARCH 21, 2005

                          House of Representatives,
                         Committee on House Administration,
                                                    Washington, DC.
    The committee met, pursuant to call, at 10 a.m., in the 
Finance Hearing Room, Senate Office Building, Columbus, Ohio, 
Bob Ney (chairman) presiding.
    Members present: Representatives Ney, Millender-McDonald 
and Tubbs-Jones.
    Mr. Chairman. I want to thank everyone for coming. Also I 
want to thank you for your indulgence. We had a vote last night 
and I did my best to get here. Three airplanes later, due to 
mechanical problems, I am here. I apologize for something out 
of my control; it is a pleasure to be here. Again, I want to 
say how much I appreciate the Clerk of the Senate Matt Schuler 
and all the staff of the Senate making the use of this room 
possible. This used to be my office over to my left when I was 
Chairman of the Senate Finance Committee so this is old home 
week. This was the temporary floor of the Senate. It is always 
a pleasure to be back here in the legislature where I got my 
start before I left for the U.S. House.
    The Committee will officially come to order. We are meeting 
here today, in Columbus, to take a look back at how the 2004 
election was conducted in Ohio, and to hear about how the Help 
America Vote Act, known as HAVA, is being implemented in this 
    We have already had hearings in Washington, D.C., and will 
have hearings throughout the different parts of the country. 
During the course of this hearing we hope to learn more about 
what went well during the most recent election and what needs 
improvement. By gaining greater understanding about what 
happened in the past election, we hope we will be able to 
assure the effective administration and successful operation of 
Ohio elections in the future.
    On November 2nd of 2004 our nation conducted the first 
federal general election governed by the requirements and 
instructions set forth in the Help America Vote Act of 2002. 
The Help America Vote Act was a landmark legislation reform law 
that established new election administration standards that 
each state must meet. It also provides crucial federal dollars 
for the first time in the nation's history, to assist states 
and localities in updating and improving their voting systems.
    The Help America Vote Act specifically grants states and 
localities broad latitude to interpret and implement its 
provisions in ways that take into account unique local 
circumstances in each community. I am proud to have been the 
author of this important piece of legislation, along with 
Congressman Steny Hoyer, who is also the Democrat whip of the 
U.S. House, and Senators Chris Dodd, Mitch McConnell, and Kit 
Bond. I believe that the Help America Vote Act will greatly 
enhance the health of our democracy. HAVA had a great 
bipartisan vote, and a lot of members involved in putting the 
bill together.
    As Election Day 2004 approached, election officials across 
the country faced numerous logistical challenges. Nowhere were 
those challenges more apparent than here in our own state of 
    First of all, Ohio was the target of aggressive voter 
registration drives, many of which were conducted by outside 
groups that paid their employees per person that they 
registered. These drives resulted in election officials having 
to process and handle a greater than usual number of voter 
registration forms, a substantial percentage of which were 
submitted at or just before the prescribed deadlines, and 
several of which were defectively or fraudulently thrown out.
    This placed an administrative burden on Ohio's election 
officials. In addition, election officials confronted the 
highest rates of voter turnout since 1968. The Committee for 
the Study of the American Elector estimates that roughly 120 
million citizens cast ballots in the most recent federal 
election--nearly 15 million more voters than in 2000.
    In Ohio alone, the turnout rate was over 10 percent higher 
than the rate during the previous presidential election cycle, 
which translated into almost one million more Ohioans voting in 
2004 than in 2000.
    Finally, during the past election cycle Ohio had an 
extensive debate about the security of direct recording 
electronic devices, known as DREs, voting systems and 
ultimately passed a law requiring DREs to produce a voter 
verified paper audit trail, or VVPAT.
    Without getting into the merits or demerits of the new law, 
it is safe to say that the paper trail debate and the new VVPAT 
requirement removed the possibility that Ohio could replace its 
punch card systems with more reliable voting equipment in time 
for the 2004 election.
    In the weeks and months leading up to election day, we 
heard scores of gloomy predictions about an impending electoral 
meltdown in our state. We were told that voting equipment 
malfunctions would be widespread, delaying the reporting of 
election returns, and potentially losing thousands upon 
thousands of votes.
    There were also allegations that a mass voter intimidation 
and suppression effort would disenfranchise many voters. Some 
forecasted that all these factors would combine and create a 
perfect storm that would paralyze the country's election 
    Thankfully these gloomy predictions did not come true as 
the Associated Press reported. The big surprise of the 2004 
election was that, for the most part, the voting went smoothly. 
By the close of the polls across the country, despite heavy 
voter turnout, there were only scattered reports of equipment 
trouble and human error at the voting stations, and none were 
    This assessment was confirmed on election night by Joe 
Lockhart. Normally I don't quote Joe but I will today, the 
Kerry campaign spokesman and strategist who said, ``We think 
the system has worked today. There were thousands of lawyers 
deployed to make sure that no one tried to take advantage or 
unfair advantage and by in large it has worked. I have seen 
very few reports of irregularities and even the ones we have 
seen after a little investigation you will find there is not 
much going on.''
    Thus, to paraphrase Mark Twain, the rumors of the demise of 
the American electoral system in general, and the Ohio system 
in particular, are greatly exaggerated.
    For this, we must give enormous credit to the state and 
local election officials in Ohio, on both sides of the isle, 
for their hard work and extensive planning in preparation for 
this year's election. We must also express tremendous gratitude 
to the thousands of volunteer poll workers and election judges, 
without whom the election process could not function. The 
accomplishment of those involved in the administration of this 
year's elections are especially impressive in light of the 
intense scrutiny under which they were operating.
    All of this is not to suggest, however, that no problems 
whatsoever were evident in Ohio during the 2004 election. There 
were some difficulties. As in any undertaking involving 
millions of people taking place on a single day in a large 
state such as ours, there are bound to be some mistakes. It is 
important that we learn from those mistakes so that they aren't 
    However, contrary to the overheated assertions of some, the 
voting problems that occurred in the state, I feel, did not 
disproportionately impact the voters of one party nor the 
other, but rather affected voters through all political 
parties, Democrats, Republicans, and Independents alike.
    Again, we want increased voter registration. In terms of 
the Help America Vote Act, it directly affected a lot of issues 
but it did not particularly impact the exact particulars of how 
the state of Ohio, for example, would register people to vote 
and still follow state laws.
    I think that with HAVA's voting system standard set to go 
into effect in just over eight months, I am especially 
interested today to hear from a good panel of legislators in 
discussing how Ohio will meet the compliance deadline. As I 
mentioned earlier, the paper trail to date the new VVPAT law 
has significantly delayed Ohio's acquisition to voting 
equipment as well as its ability to come into compliance with 
HAVA's voting systems.
    Consequently, there is an urgent need for Ohio state and 
local election officials and leaders in the state legislature, 
to sit down and with colleagues and figure out how to resolve 
the situation.
    We are fortunate to have a number of distinguished 
witnesses with us today, many of whom were at ground zero of 
the most recent election. Our witnesses include a fellow member 
of the Ohio Congressional Delegation, Congresswoman Stephanie 
Tubbs Jones, who we serve with in our nation's Capital, our 
distinguished Secretary of State, members of the Ohio 
legislature who will be introduced, local election officials 
from across the state, and scholars on issues relating to 
Ohio's election.
    Before yielding to our Ranking Member, I want to thank 
Senate President Bill Harris for making this room available 
again for today's hearing. It is a little bit of deja vu for me 
because of the years that I served here in the legislature.
    Before yielding to our Ranking Member, I want to thank 
Congresswoman Millender-McDonald from California, who is our 
Ranking Member of the House Administration Committee. It is the 
smallest committee of the U.S. House, with six Republicans and 
three Democrats.
    We are directly appointed by the Speaker of the House Denny 
Hastert, and our Ranking Member and her colleagues are directly 
appointed by Leader Nancy Pelosi of California. We represent 
the two leaders of the U.S. House. We oversee the Library of 
Congress, the Smithsonian and parking spaces, which is a big 
deal in Washington, D.C. We are trying to diminish that.
    I have enjoyed working with my colleague Juanita Millender-
McDonald on the serious matter of election law, as she has been 
a real supporter of the institution of the House. She is our 
new Ranking Member. I really appreciate her time in traveling 
all the way here to Ohio.
    Ms. Millender-McDonald. Thank you so much, Mr. Chairman, 
and thank you for convening this field hearing in your home 
state of Ohio, as well as the Congresswoman who is before us. I 
would like to also thank the Ohio officials and state staff for 
their generosity in allowing us to be here today.
    I hope to continue the dialogue and review of how the Help 
America Vote Act was implemented and how the first post-HAVA 
election was conducted. We must take our hearings wherever 
necessary to help the American people regain their confidence 
in our electoral process.
    Ohio was at the epicyte of the 2004 election. It was on the 
news virtually every day for weeks, both before and after the 
election ultimately giving President Bush the victory for a 
second term by less than 120,000 votes. While the margin of 
victory was outside the parameters of litigation, it does not 
mean that we should ignore the problems that were reported.
    As a former educator, I hope that the nation and Congress 
will learn from this past election and the lessons from Ohio. 
In the 107th Congress this Committee was the driving force in 
passing legislation to ensure that the problems brought to bear 
during the 2000 presidential election were not repeated. After 
that election we heard reports of a wide range of voting 
frustrations and irregularities.
    Most common were punch cards with hanging or pregnant chads 
and voters were turned away from the polls without being given 
the opportunity to cast a vote. With the passage of HAVA 3.9 
billion dollars were authorized to the states to improve the 
voting process marking for the first time in our nation's 
history that the Federal Government paid for the administration 
of federal elections.
    Additionally, states have shown that the entire burden of 
cost, sometimes having to decide among funding and maintenance 
of roads and infrastructure, the construction of schools or the 
management of elections. The Federal Government has provided 
three sources to alleviate these very important concerns.
    Ohio ranks fourth among all states and territories in total 
money received from HAVA. However, HAVA is not a blank check. 
States will only receive money if they can demonstrate 
compliance with HAVA's strict requirements. Yet, despite the 
HAVA intent, some of the same problems brought to light in 2000 
occurred again in 2004. These problems were not unique to Ohio.
    According to the Election Reform Information Project a 
nonpartisan/nonadequacy organization providing news and 
analysis on election reform, the problems range from long lines 
at polling stations to a shortage of machines to misinformed 
poll workers.
    The Committee worked tirelessly to enact HAVA as a solution 
to these and other election concerns. The Help America Vote Act 
set standards so voters were not turned away from the polls 
without casting a vote. Also, that voters not listed as 
registered must be given a provisional ballot to be verified 
later and counted. Unfortunately, these were reported that 
eligible voters were being turned away from the polls without 
casting a provisional ballot.
    Further, many overseas and military voters reported that 
they did not receive their ballots in time to vote. Some did 
not receive their ballots at all. We can, and we must, do 
better. Especially for our men and women fighting for democracy 
in Iraq, Afghanistan, and around the world. My staff had the 
opportunity to speak with many numbers of Americans living 
abroad and listened to their voting experiences.
    Although the 2004 elections have passed into history, many 
questions are still unanswered and electoral issues need to be 
discussed. The electoral process is not perfect. Improvements 
to the electoral process still need to be made. Fortunately, 
the Help America Vote Act of 2002 is a solid foundation upon 
which we can institute further electoral improvements.
    I would like to stop to thank this Chairman and the Ranking 
Member then, Congressman Steny Hoyer, for their leadership on 
bringing such an important piece of legislation as HAVA to the 
country because it has made a difference in many states and we 
are hoping that it continues to make a difference.
    HAVA was to make it easier for voters to cast a vote and 
harder for people to knowingly commit fraud. It has eased the 
financial burden of state space in preparing for and 
administering federal elections. In addition to providing the 
$3.9 billion to the states, HAVA requires that state election 
officials accomplish two landmark goals by the beginning of 
next year.
    First, every voting precinct in the United States must have 
at least one voting machine or system that is accessible to 
individuals with disabilities. This mandate will allow many 
disabled voters to cast secret ballots for the first time. 
Second, by the start of 2006 every state must implement a 
uniform centralized computerized statewide voter registration 
    Beyond my continued support of HAVA I wish to make it clear 
that I will continue to fight for additional funding to the 
Election Assistance Commission, EAC. The EAC has started a 
valuable service to our nation as a clearinghouse for all 
matters relating to federal elections. Among other 
accomplishments the EAC has partnered with the National 
Institute of Standards and Technology to develop voting system 
guidelines, issue best practice procedures to the states, and 
distribute billions of dollars to improve the election process.
    I would like to also acknowledge the work of all of the 
county and local elected officials who will be represented by 
the witnesses here today. They are the ones who carry out the 
day-to-day operations of administering the elections. I look 
forward to the hearing today, Mr. Chairman, from these 
experienced people who have implemented this landmark 
    Before I do that, I would like to read just an excerpt from 
the Christian Science Monitor that was stated by President 
Lyndon Johnson 40 years ago. ``At times history and fate must 
meet in a single place to shape a turning point in man's 
unending search for freedom and justice.''
    We have come today because this is the turning point of 
this last election. We must restore voters' trust. We must 
mitigate the voters' cynicism that has arisen among voters 
regarding voter irregularities. We must continue to move 
forward so that the threat of litigation and voter outrage does 
not continue in place.
    Access is what the Voting Rights Act of 1965 presented to 
us. It was supposed to do just that. Forty years today we are 
still seeing that people do not have access to voting and the 
proper machines for voting. I maintain that voter confidence 
and encouraging greater voter turnout is what this Committee is 
all about. We feel compelled to have hearings across this 
country to hear from your neighbors, your families, local and 
state-elected officials regarding this last election.
    I would like to again thank my Chairman, the Chairman of 
the Committee on House Administration, for convening this 
hearing and I look forward to the witnesses, Mr. Chairman. 
Thank you.
    Mr. Chairman. Thank you, gentlelady, our Ranking Member, 
for your thoughtful statements and, again, your time here in 
Columbus, Ohio.
    We will go on to our colleague Congresswoman Stephanie 


    Ms. Tubbs-Jones. Thank you. I would like to thank the 
Chairman, Bob Ney, and the ranking member representative 
Juanita Millender-McDonald for giving me this opportunity to be 
heard. I am so pleased and I thank both of you for being 
persons of your word by saying that you would host hearings in 
Ohio and so doing.
    I am proud to be a representative of the 11th Congressional 
District of Ohio and proud to be here this afternoon. Though my 
conduct has been labeled disgraceful, foolish, nasty, and 
disingenuous, I sit here very proud to have stood before the 
United States of America and the world on January 6th objecting 
to the electoral votes of Ohio at that time.
    I was very proud and pleased that I have an opportunity as 
the first African-American woman to serve in the House of 
Representatives from Ohio to stand on behalf of voters across 
this country to get the Congress just to stop for a moment and 
say that we need to pay attention to what happened in the 
election of November 2004 and let the many young men and women 
across this country who registered to vote for the first time 
and for some reason their vote was not counted to say, 
``Someone is thinking about you. We want you to register again. 
We want you to come out and vote.''
    All that is being said, Mr. Chairman, and Madam Ranking 
Member, I am going to move to something which I believe as 
important is a piece of legislation that I introduced this year 
with my colleagues from the Senate, Senator Hillary Rodham 
Clinton, Senator Barbara Boxer, Senator Frank Lautenberg, 
Senator John Kerry.
    The legislation is called Count Every Vote Act of 2005. The 
legislation in my mind, and along with my colleagues, we 
believe it addresses many of the issues that were raised in the 
election in November of 2004 not only in Ohio but across this 
    Let me reiterate that many of the activities that occurred 
in Ohio happened in other states and there were other people 
who wanted to stand up and talk about what happened in their 
election and didn't have the opportunity. I have to for the 
record say thank you to Senator Barbara Boxer for giving me 
that opportunity.
    Ms. Millender-McDonald. From the state of California no 
    Ms. Tubbs-Jones. From the state of California. Correct. Let 
me put that on the record.
    I also would ask for the record that my statements from 
that day on January 6, 2005, be considered as part of this 
record. That way I don't have to go through those statements 
    Mr. Chairman. Without objection they will be made part of 
the record.
    Ms. Tubbs-Jones. Thank you, Mr. Chairman. Title I of the 
Count Every Vote Act speaks to individual voter verification 
for all and requires all voting systems to produce a voter 
verified paper record for use in manual recounts. It requires 
that at least one machine per precinct must provide for paper, 
audio, and pictorial verification and must be accessible to 
language minorities. It provides for a mandatory recount, a 
vote of verified paper records in two percent of all polling 
places or precincts in each state.
    It goes on to provide for improved security measures for 
electronic voting machines. It goes to reduce voting errors in 
voting machines and requires that all voting systems meet what 
is called a residual vote benchmark to be established by the 
Election Assistance Commission.
    Title II provides for provisional balance and I think that 
is an area that we in Ohio know was very controversial. It 
requires provisional ballots to be counted statewide, allows 
ballots that are cast in the wrong precinct or the wrong county 
to be counted for all eligible races so long as the voter is 
registered in the same state.
    All of the issues that happened in the Ohio election and 
that occurred across Ohio is the fact that in one voting 
location there can be more than one precinct. Conceptually I 
could be in the right church but in the wrong pew and not have 
my vote counted. That is one of the reasons we wanted to make 
sure that provisional balloting was addressed in the 
    Title III provides for an amendment to the HAVA Act 
preventing long lines at the polls by mandating that the states 
meet minimum standards established by the EAC for required 
number of voting systems and poll workers for each precinct.
    I know it has been argued that there were plenty of 
machines and people didn't have any problem but poll workers 
were vested with the opportunity to set up as many machines as 
they chose to. If they chose not to set up all the machines 
that were available in the voting place, it ended up requiring 
long lines.
    It provides no excuse absentee voting meaning that you 
don't have to give a reason to ask for an absentee ballot which 
will reduce the number of people voting on election day. It 
provides for improvement of public records and partial election 
observers, election day registration such that people coming to 
the ballot box can register on election day.
    Another provision which will address the whole issue of 
having too many people in lines is early voting. It requires 
early voting in every state. It requires fair and uniform voter 
registration and identification and partial election 
administrators. It specifically makes it unlawful for the chief 
state election officials or those who own or serve as the CEO, 
COO, CFO, or president of an entity that designs or 
manufactures a voting system to take part in certain prohibited 
campaign activities with respect to any election for federal 
    Appearance is one of the issues that we always have to pay 
attention to. In fact, it may not be a problem but the 
appearance of impropriety is always something we want to take a 
look at. It provides for civic participation by ex-offenders. 
Ohio is way above the curve. We allow ex-offenders to vote but 
many states do not. Finally, it provides for a holiday for 
voting such that people who want to have the opportunity to 
have a holiday.
    I am out of time. I know that there are witnesses that have 
traveled a long way and I have an opportunity to put 
information in the record. I just want to say on behalf of all 
the people of Ohio and people across this country, Chairman 
Ney, Ranking Member Millender-McDonald, thank you for coming to 
Ohio. Thank you for allowing people across the state to be able 
to come and testify about what happened because many things 
occurred in Ohio and you can't recount what was never counted. 
Thank you very much for the opportunity to be heard.
    Ms. Millender-McDonald. Mr. Chairman, with unanimous 
consent, may be allow Congresswoman Stephanie Tubbs-Jones to 
join us here on the dias.
    Mr. Chairman. I have no objection.
    Ms. Tubbs-Jones. Thank you very, very much. I appreciate 
    Mr. Chairman. Thank you for your testimony. I would defer 
questions. We have a panel of legislators and we will get to 
you. I thank you for your testimony. We have a lot of bills 
that have been introduced. Come up here and take a look at the 
    We will move on to the second panel. We have Senator Randy 
Gardner, Senator Jeff Jacobson, and Representative Kevin 
DeWine. We appreciate the service you do for the people of 
Ohio. I think Senator Gardner has a time problem. Correct, 
    Mr. Gardner. Half hour. I don't know if you would expect me 
to be here for longer than that anyway.
    Mr. Chairman. That is my problem. Well, the airline. We 
will begin with Senator Gardner.

                       OF REPRESENTATIVES


    Mr. Gardner. Thank you, Mr. Chairman, members of the 
Committee, thank you for coming to Ohio and returning, of 
course, to Ohio, Mr. Chairman. I served eight years with 
Senator Ney in the 1980s and 1990s. It is good to be with you 
    I have submitted per the Committee's request some documents 
that actually were 2004 documents, some recommendations that I 
had made as Chairman of the Joint Ballot Security that actually 
met in this very room and had 22 hours of hearings and many 
witnesses, dozens of witnesses over eight hearings, and made 
recommendations to the general assembly. I will touch on that 
in my prepared remarks.
    An article that I submitted to Secretary of State Ken 
Blackwell's publication last summer that highlighted some of my 
key positions on the matter of the voter paper trail and we 
will discuss that briefly. As well, I don't know if I submitted 
this or not but pay attention to the March 3, 2004 letter that 
was signed by Congressman Ney and Congressman Hoyer, Senator 
McConnell, and Senator Dodd, some of the principal authors of 
the HAVA act and outline some of the concerns with respect to 
the debate we had in Ohio over the voter verified paper audit 
    With that, Mr. Chairman, I would like to utilize these 
documents and say first of all that Ohio has a long and proud 
and strong tradition of bipartisanship when it comes to 
administering elections. We have 176 Republican board members 
and 176 Democrat board members throughout the state who took 
their responsibilities in the last election in this state very 
seriously and conducted a very fair and very honorable election 
that we are proud of in this state.
    As I am reminded, Congressman Casey used to always say, 
``This is earth and there is nothing on earth that is 
perfect.'' I appreciate the fact that you have come to this 
state today and that we are here today to talk about ways that 
we can make what will always be an imperfect system that much 
better for the people that we serve.
    I would specifically, Mr. Chairman, like to point out that 
when I chaired the Joint Committee on Ballot Security I had 
announced to the public that my philosophy is to not have the 
Chairman dictate the outcome of any committee hearing or any 
committee process. The ultimate vote on whether we should 
require in Ohio a voter verified paper audit trail was seven to 
one and the Chairman was the lone dissent on that issue.
    At least I adhere to my principles, Mr. Chairman. We did 
implement a mandate that I believe was not the best public 
policy in this state in legislation in 2004. I believe we 
should revisit that mandate. We should, in fact, either repeal 
it or ask Congress to consider an extension of some of the HAVA 
guidelines and rules so that Ohio can most appropriately move 
forward in the future.
    I would also like to point out that the issue of the 
verified paper audit trail is interesting in that those who 
have concerns about the electronic voting system, or DREs, seem 
not to have any concern to add more complexity to an already 
complicated system which I think makes that new system if it 
were to be established even more unreliable than some of the 
concerns in the first place.
    I think the final thing I would like to say, Mr. Chairman, 
is concerns on both sides to become sometimes extreme. The one 
thing that I asked you for, and I think sometimes people are 
too cynical about politics and they think money is at the root 
of every decision that gets made, the question I would have for 
those who attempted to portray some of the concerns and 
protests in Ohio in the last year with respect to electronic 
voting machines and DREs, the Ruckus Society from Oakland, 
California, came to Ohio as part of a protest.
    I asked the question before and I think it is relevant for 
those that ask why we make decisions and whether money 
influences us is to who paid for the Ruckus Society to come to 
Ohio and protest against the Ohio voting system? Was that 
voting machine companies that might benefit from a different 
system? Was it members of the Democratic party or the officials 
or the party operatives who paid for those visits? I think 
those are fair questions to ask and then hopefully we can come 
together as Republicans and Democrats to provide the best 
system possible for this state. I am honored to be a part of 
the panel discussion today and I look forward to answering 
questions after my colleagues have made their presentations. 
Thank you, Mr. Chairman.
    Mr. Chairman. Thank you, Senator. Thank you for your time 
    Senator Jacobson.
    [The statement of Mr. Gardner follows:]


    Mr. Jacobson. Thank you very much, Chairman Ney, and 
members of the Committee. I appreciate your interest in Ohio. 
Like so many other Ohioans I spent a lot of time talking to the 
air, to my television, or the Internet wanting to tell you all 
what we think of some of the things or answer some of the 
questions you may have. Rarely do we have the opportunity to do 
so so I appreciate that.
    My first question in looking at the 2004 election was why 
Ohio? What exactly made Ohio the poster child for questions 
about the election? Clearly there was attention on Ohio because 
Ohio was in the news before the election day. If you look at 
the outcome of the election, certainly the state of Wisconsin, 
which had it gone the other direction would have been 
sufficient to decide the race without Ohio.
    Wisconsin had more severe issues that were directly 
connected as the Minneapolis Star Tribune's investigation has 
shown with the election day registration and the inability to 
verify or even come up with any plausible way that many of the 
people who registered, thousands of them, in fact, would 
actually have had a legitimate address and could in any way 
have been determined to be a legitimate voter.
    Of course, it went the other way and finding extra votes 
was not on the media's mind nor on the activists minds. The 
issue was how to take away votes. But the Count Every Vote Act 
that was described to us earlier I believe would make that 
problem even worse and extend it beyond Wisconsin to the rest 
of the nation.
    Washington State where time and again their election 
workers of a partisan administration discovered multiple caches 
of uncounted votes. That would never have happened in Ohio. It 
is impossible for what happened in Florida four years ago or 
what happened in Wisconsin or Washington State to have happened 
    The main reason is because we have bipartisan, local, 
independent Board of Elections. While the Secretary of State 
picks the members of the boards, he does so based on the 
recommendations of the local parties. If he removes someone, he 
replaces them again with someone recommended by the local 
    I know this well as a former county chairman, and a former 
member of the local Board of Elections of Montgomery County. I 
was particularly disappointed in some of what happened in 
Congress in attacking the Ohio outcome because it involved 
people who were from Ohio who knew exactly how our boards of 
elections operate, I wish I could have defended them on the 
basis that it is true that Democrats watch what Republicans do, 
Republicans watch what Democrats do, and because of that, the 
opportunity for one side or another to change the outcome of an 
election is impossible.
    The fact that there was litigation brought exactly on that 
fact is, to me, one of the most disgraceful things that 
occurred in the 2004 election and ranks right up there, in my 
opinion, with the decision by then Vice President Al Gore to 
try to manufacture a change in the Florida election in 2000. 
Both together, I think, have contributed to a situation where 
people of good will now have to find themselves wondering 
whether we can again have an election for which all people will 
accept the outcome.
    I was a member of Senator Gardner's election committee here 
on ballot security and I do wish to state that I don't like 
DREs. I don't like them because they are not transparent unlike 
punch cards. You can hold a punch card to the light and see how 
someone voted or, as they did in Florida, see how someone might 
have intended in Florida had they really did what I wanted them 
to. Where you have optical scan ballots, you can look at those 
ballots and determine how someone voted. With DREs you have to 
hope that the machine accurately recorded it.
    I do a lot with computers. I understand how they work and 
that is why I so strongly supported having paper trails to 
bring transparency to what otherwise would not be transparent. 
However, DREs take a long time to use and the direct 
consequence would be longer lines no matter how you look at it. 
The money that was given to Ohio has not been sufficient to do 
all that you wish.
    I thank you for the opportunity to testify and look forward 
to working with you again in the future.
    Mr. Chairman. Thank you very much, Senator, for your 
    Representative DeWine.
    [The statement of Mr. Jacobson follows:]


    Mr. DeWine. Good afternoon, Mr. Chairman. Thank you for the 
opportunity to testify before the Committee on House 
Administration. I appreciate the leadership efforts of the 
Chairman, the Ranking Member Millender-McDonald, and members of 
this Committee and congressional leaders to improve the 
election's process in our country and to ensure the United 
States remains a model for democracy.
    I would also like to thank the Committee for coming to 
Ohio. The state has a solid history of well-run elections as 
well as an energized and active electorate which I believe 
makes it a compelling study for Congress.
    The November election was undoubtedly one of the most 
scrutinized in recent history, particularly here in Ohio. 
However, as has already been mentioned, with the leadership and 
professionalism of our bipartisan election officials, Ohio's 
system withstood the pressure of a major election and we were 
able to avoid the chaos which ensued elsewhere in the nation 
during the 2000 election.
    As mentioned by others, our system is not without its 
faults. With minor changes, however, I believe we can minimize 
risk. Most of us heard concerns during last year's elections 
from voters, boards of elections and poll workers. As such, the 
general assembly is seizing the opportunity to update and 
strengthen our system of elections. These efforts are found in 
part in House Bill 3 which I introduced in an effort to 
modernize Ohio's election laws.
    House Bill 3 makes important clarifications to Ohio's 
election laws and brings the state into alignment with HAVA. 
House Bill 3 codifies rules for casting a provisional ballot to 
align Ohio's provisional system with HAVA. The HAVA procedure 
allows a citizen whose eligibility is challenged or whose name 
does not appear in the poll books to cast a provisional ballot. 
This system differs from the current Ohio procedure which only 
allows those citizens who have moved and have failed to submit 
a change of address form to vote provisionally.
    House Bill 3 seeks to codify the HAVA requirements for 
voter identification which requires first-time voters who 
registered by mail to provide a form of identification when 
they cast their ballot or at the time they registered. 
Additionally, in an effort to further curb voter fraud, the 
general assembly is also considering whether to require a voter 
to provide identification at each and every election.
    Finally, House Bill 3 compels the Secretary of State to 
develop a computerized statewide voter registration database as 
required by HAVA. Procedures for managing this database must be 
established in order to remove ineligible voters in a 
nonpartisan fashion while giving the voter proper notice and an 
opportunity to provide accurate registration information.
    Outside of the scope of HAVA compliance discussions have 
been underway to address a number of broader election issues. 
Ohio's election calendar is in desperate need of an update. 
Concerns have been raised about the very short time frame in 
which pre-election voter registrations must be received and 
    The current system begins on the 11th day before the 
election. This clearly does not allow enough time for proper 
notice and hearings. We are looking into further ways in which 
we may improve the timing of the election process to ensure 
that voters have ample time for ballot access and boards of 
elections have ample time to process all the information and 
ensure its accuracy.
    As I mentioned earlier in my testimony, House Bill 3 aligns 
Ohio election with HAVA in terms of who is eligible to vote by 
provisional ballot. Beyond that, the general assembly is 
working to codify the uniform standards and procedures 
necessary to clear a provisional ballot including jurisdiction, 
how and when to count a provisional vote, the form in which the 
provisional is submitted, and the instructions to the poll 
worker and the voter.
    The general assembly is working to revise the laws and 
procedures that relate to election day activities and conduct 
in and around the polling location. Above all else each of us 
should strive to preserve the rights of voters who come to the 
polls. Unfortunately, each and every one of us have reports of 
voter harassment and intimidation that occurred on election 
day, as well as inappropriate behavior inside the 100-foot line 
and even inside the polling location.
    That kind of behavior is unacceptable and will be further 
addressed in this legislation. We are also clarifying the 
statute to allow for witnesses and challengers to be present at 
the precinct, the Board of Elections on election day, and 
during the count or recount of all ballots.
    In my opinion much of the wrangling generated during last 
year's election was in part the result of directives from the 
Secretary of State's office. I don't believe that the content 
of these directives created as much of a problem as did the 
timing of these directives. Many directives were issued very 
close to or on election day.
    I will tell you it doesn't matter which party controls the 
Secretary of State's office. Last-minute directives will 
automatically result in a hostile reaction by the party that is 
not in charge. That reaction borne out of natural suspicion of 
the other party will likely result in litigation. House Bill 3 
will bring the needed specificity to Ohio election laws while 
still providing the Secretary of State's office the needed 
flexibility to deal with pressing election matters in real 
    I cannot reiterate enough how important it is that all 
Ohioans have confidence in the election system. It is incumbent 
upon Government officials, federal, state, and local to make 
the process more seamless, accessible, and transparent to all 
    Once again, Mr. Chairman, I thank you for the opportunity 
to testify before you today and look forward to the Committee's 
    [The statement of Mr. DeWine follows:]

    Mr. Chairman. Thank you for your testimony and for your 
perspectives on HAVA. One thing that I just wanted to clarify 
is that as we drafted the Help America Vote Act, Carson, Hoyer 
and I personally talked to committee groups, Secretary of 
State, election officials, and civil rights advocacy groups. 
This was the first time we enacted such legislation in the 
nation's history. We had a commission, led by Jimmy Carter and 
Gerald Ford who called this voting rights act one of the 
greatest civil rights measures that Congress could have passed.
    I do believe we had to federally pass provisional voting. 
People were disenfranchised. I think there were things, for 
example, like the mandate for the person with a disability, 
that we improved. For the first time in the nation's history 
and the first time in people's lives, the blind have been able 
to vote in secret.
    I think there were things we had to do federally or it 
would not have been done. Now, we have tried not to overdue it 
in the sense that we all agreed, Democrats and Republicans. We 
agreed we would not have an election commission that would make 
daily rules and regulations, but that we would prompt change, 
at the state level.
    We asked these groups how much money they wanted, but 
there's more to it than money. Money is important, but it is 
not the entire legislation by any stretch of the imagination. 
It went beyond punch cards. When we asked them, they agreed 
that if we funded $3.9 billion, then this would not be an 
unfunded mandate.
    We also talked to MCSL. Carson, Hoyer, and I were former 
members of the legislature, as a lot of bar members that voted 
on this were. The bottom line is we were told $3.9 billion. As 
of today we have got $3 billion out there in the pipeline. $900 
million is yet to be achieved, and I believe we will achieve it 
this year. We want to get to that $3.9 billion. I believe if 
the Help America Vote Act never occurred, states still would 
have modernized as a result of the controversy of the punch 
    Katherine Harris was Secretary of State and they moved 
immediately afterwards. Florida did, Georgia did. I can name 
states that were moving on their own without the Help America 
Vote Act. I believe that eventually the states would have to 
put some money in, so we put some money in. Again, I just want 
to make it clear that we never said we would pay for every 
single machine.
    Now, Ohio added a paper trail. I don't want to debate all 
day the paper trail, but Ohio added the paper trail, because 
you have to have that paper trail. Ohio then added another 
additional requirement. Was there any thought to adding more 
money because the paper trail requirement was added. The Help 
America Vote Act never required each state to have a paper 
trail. Now, if you want to have one, it didn't forbid it. I am 
just saying that it is a significant issue because if you are 
going to add that, you will add another layer of cost.
    Mr. Jacobson. Thank you. As one of the most vocal 
proponents and early proponents of it, I will tell you that one 
of the problems that we had was trying to estimate, first of 
all, how many machines were appropriate. That was a problem 
from the beginning. With DREs you deal with the fact that not 
every voter knows how to operate a computer, though we are used 
to it more with ATMs.
    We were concerned at the ratio that was suggested, 200 to 1 
would be insufficient to start with. Since then we had a lot 
more voter registrations because of the 2004 General Election. 
We have a lot higher turnout from those new registrations than 
has ever been experienced before in terms of turnout.
    I think that has a lot to do with why there were long lines 
because no one could anticipate the double effects when they 
were deploying machines, etc., making decisions at the local 
level. I think what happened is that the Secretary of State 
when the time elapsed for the election said 1 to 200 is no 
longer good enough to prevent long lines. I agree with that. 
Furthermore, we have to have more machines because we have more 
voters. Those two things coupled together, more than the extra 
cost associated with the paper trail, is what makes the money 
insufficient. I think there is a way to do it and I think we 
can do this without necessarily resorting to DREs.
    We can do it with, as has been proposed in Ohio, optical 
scan. There may be a way to use DREs to help create optical 
scan ballots but then let them be counted not inside a computer 
where the process cannot be accurately verified but where there 
is a paper record and the paper record itself is the ballot and 
gets counted.
    Mr. Chairman. If you do optical scanning, you still have to 
have one machine to equip the persons that have a disability. 
There is today no approved standard because, as I said, Carson, 
Hoyer, and I did not make the EAC a rulemaking body; but 
neither did we strip it of its ability. If you optical scan, it 
has to approve procedures and standards; today there are no 
standards for optical scanners.
    If the state of Ohio does move towards satisfying the 
mandate in HAVA, the real pure mandate beyond provisional 
balloting, a machine equip, you still would have to have a DRE 
per precinct or you would fall out of violation with HAVA. If 
you have optical scan and no type of device equipped for the 
blind, then you will be out of compliance, and must still have 
to have a DRE. That means you have to throw one other thing out 
    If you have one DRE per precinct, and that one machine 
breaks on election day, you don't have a second machine backing 
it up. If you have all DREs, it wouldn't matter. You would 
still have five other machines. Technically you would have to 
have DREs even if you have optical scan.
    Mr. Jacobson. I guess I would just briefly say optical scan 
is much cheaper than DREs with or without paper trails. We do 
have a lot of money left over within the HAVA budget to deploy 
whatever systems would be necessary to allow the disabled to 
vote. We do recognize that we have the responsibility of 
providing them with something of a format like a DRE.
    The question is whether or not that has to generate within 
it the record or spit out a ballot that then can be counted in 
the same fashion. We are working our way through but we 
recognize we will have to have more. We do believe we have the 
funding for it.
    Mr. Gardner. Mr. Chairman, if I could, you have touched on 
a very key component of HAVA with respect to allowing those 
with disabilities to vote more independently and privately. 
That is one of the key reasons why I oppose provisions to 
mandate a voter verified paper audit trail.
    Let me just read briefly from just one paragraph from what 
I wrote last June 4th. ``To be sure, the most ardent supporters 
of VVPATs have succeeded in slowing down the implementation of 
HAVA in Ohio. In doing so we know that some voters in November 
will not have their intended vote counted accurately as our 
older systems, primarily punch cards, result in higher under 
votes and over votes than in electronic voting machines. In 
addition, many disabled Ohioans will not be able to vote 
independently and privately in 2004 because some counties will 
waive to implement HAVA in compliance with Ohio's 2006 VVPAT 
    My additional concern in stating that is not to restate the 
record of the past but as we look forward, I think we need to 
look at the independent private voting abilities of the 
disabled even if we do have an optical scanner, as you pointed 
out, which would be necessary to comply with HAVA.
    I think that is just something we can't escape and we 
shouldn't escape. Not only is there a cost issue here, I think 
there is a voting rights issue here, Mr. Chairman. I believe 
that the legislature will take that into consideration in the 
weeks ahead.
    The Chairman. Thank you. To Representative DeWine, I don't 
pretend to know every product but, from what I know, it brings 
greater clarity and consistency to Ohio's election process, 
which is what we hope all states will do if there are some 
things that aren't clear. I think your efforts will 
significantly enhance HAVA implementation in the state.
    One thing that I am trying to take away from today's 
hearing is the areas in which HAVA did and did not work. A lot 
of the implementation was left up to the local states. 
Provisional voting was one of the most critical components. We 
didn't tell the states how to count the vote, but we said you 
have to accept the vote. In that area, with provisional voting, 
how do you think it went? I am just curious how provisional 
voting went from the perspective of the states.
    Mr. DeWine. Mr. Chairman, if I might on the paper trail 
piece. I stand directly in between the two of these gentlemen 
when it comes to a position on paper trails. You can't find two 
more polar opposites on what to do with paper trail, and many 
other issues as you well know, Mr. Chairman.
    My one point on the paper trail. We struggled trying to 
balance to get a federal deadline in 2006 and balance that 
against the security of the vote. If you carry nothing else 
with you today, the one message that I have for you is we would 
like an extension of the deadline.
    We would like an extension of the deadline from 2006 to 
2008 so that we can work out the issues, we can balance the 
security of the vote with the requirements that HAVA has put 
on. If you walk away with one thing, please walk away 
understanding that I am asking this committee and Congress to 
grant us an extension until 2008 for the expenditure of the 
HAVA dollars.
    I think when you look at the election, Mr. Chairman, 
especially as it relates to provisional voting, Ohio had a 
pretty darn good history prior to the election in 2004 and with 
the implementation of the HAVA requirements for provisional 
balloting in 2004 we went far beyond that and actually led the 
class in terms of the number of voters who voted provisionally 
and the percentage of those provisional votes that were 
actually counted so I think the system here in Ohio worked the 
way it was supposed to.
    The Chairman. I just want to note a couple of things. I had 
spoken earlier of the backup machines. HAVA requires one 
machine per precinct. I don't want to rewrite the HAVA law 
today. I am also asking, if one breaks down, what do you do?
    Also people would argue that the state delayed this whole 
thing. If that was the case, why should the Federal Government 
waive Ohio, and what would happen in the central database in 
2006? These are some of the arguments you hear in Washington.
    Mr. DeWine. Mr. Chairman, to that point, I am not 
requesting that you delay any of the time lines for any 
compliance with anything other than the voting machine. I 
believe the Secretary's office is up to speed on the 
centralized database. I think we are 80 percent of the way 
there. Any of the other requirements I think the Secretary's 
office is up to speed. I am talking specifically about voting 
machines, Mr. Chairman.
    The Chairman. Thank you. I am going to move on.
    Mr. Gardner. Mr. Chairman, the only thing I would say is I 
would echo the representative's comments. I know that there 
will be some local board members, members of the Board of 
Elections, that will be testifying today or representatives of 
that association. I would hope that you will listen carefully 
to them.
    Quite frankly, I listened to them very intently when I 
became chairman of the joint committee and they guided a lot of 
my decisions because I knew they had spent two years in working 
with you and working with members of Congress and working with 
the Secretary of State in putting together a process that I 
think would work best for Ohio. We took many of those decisions 
out of their hands. I hope you will listen to them today as to 
how they think we can best implement HAVA, whether it is 2006 
or 2008.
    The Chairman. I want to clarify one other thing because I 
hear this from Democrats and Republicans alike in my Holmes 
County or Ross County calling and asking our office, ``Do you 
and HAVA require every county to have the same machine?'' The 
answer is no. The Federal Government does not require it.
    In other words, Ross County had already bought some 
machines. It would be up to the legislature and the Secretary 
of State and the Governor. I know how systems work here but I 
just wanted to mention that it doesn't require you have to have 
the machine.
    Mr. Jacobson. Thank you. Our concern about 2004 was two-
fold. First of all, to require deployment in an election with 
so many new voters and so many questions about how to run the 
existing procedures let alone how to run new machines could 
have been disastrous. The lines would have been worse, for 
    You only need look at what happened in North Carolina where 
an entire statewide election is being rerun, if not already has 
been rerun, since 2004 because of human error in dealing with 
the computers they had, the DREs that they had. I think it was 
not inappropriate for us to be concerned. Imagine what would 
have happened if we had to run Ohio's presidential election 
over again because our poll workers or because the machines 
themselves did not function well.
    Our concern, by the way, with uniformity, I think, stems 
from not HAVA but from Bush v. Gore and the U.S. Supreme Court 
decision and the effect that might have on any set of 
litigation about what happens in the state.
    The Chairman. The gentlelady from California.
    Ms. Millender-McDonald. Thank you, Mr. Chairman. I would 
like to thank all of you for coming today to present your 
thoughts on this last election.
    Representative DeWine, I appreciate your candor because you 
are absolutely right. Last-minute directives were those very 
things that turn heads to the attention of Ohio.
    Mr. Jacobson, when you asked why is it that we have shown 
such great attention to Ohio and not to Wisconsin. The 
Secretary of State of Wisconsin did not make those last-minute 
directives which then geared us from looking at Ohio. I will 
say to you that with reference to your question, Representative 
DeWine, on extending the deadline to 2008, in my statement I 
did say that HAVA has required that state election officials 
meet two goals by next year, and that was that at least one 
voting machine or system that is successful to individuals with 
disabilities. The second was that we have a uniform centralized 
database so that is to be really carried out by next year.
    Your president of your National Association of Secretaries 
of State, the New Mexico Secretary of State, Ms. Vigil-Giron, 
said that every state had met the HAVA 2004 deadline. Several 
states even completed reforms that could have been postponed to 
2006. At least nine states were ready with statewide voter 
registration data and the Americans with disabilities 
independent system.
    I just wanted to let you know that the president of the 
National Secretaries of State, Association of Secretaries of 
State, did indicate that a majority of these states, if not all 
of them, are now in compliance and will be by next year.
    Mr. Jacobson, when you asked why is it that we come to Ohio 
or why the media was so prone to turn lights into Ohio, outside 
of the last-minute directives that really kind of set up the 
red flag, when you have your Secretary of State indicating that 
forms on 800-pound papers not be accepted also brings up red 
flags. When you have someone who is not inside of his or her 
precinct should not fill out a provisional ballot, that brings 
up red flags.
    When the Voting Rights Act prohibits anyone, any individual 
that would be intimidated, and there were many factors involved 
here that even some of your elected officials, your local 
folks, who were on this commission stated that you have 
elections on Wednesday, November 3rd, as opposed to November 
2nd, those are the things that really brings up a red flag.
    Now, we are duly responsible for making sure that people 
have access in this country and that is access to voting. When 
these types of things come as interferences, then by all means 
Ohio will be a targeted state and we review and that we will 
come back to look at. Do you have any thoughts on all of those 
that I have delineated as to those directives and/or concerns 
that were raised by your Secretary of State and why we are here 
    Mr. Jacobson. Thank you very much. The first thing I would 
say is I do not believe the apocryphal stories about phone 
calls were being given to people to say come vote on Wednesday. 
I've heard them on both sides of the issue and my sense of 
those kind of things is that if one person pulls a prank, they 
usually cover it up by claiming that they got the call or their 
friends got the calls.
    I do not believe in any way, shape, or form that those kind 
of comments can be substantiated in order to claim them as 
anything other than apocryphal legends about the 2004 election 
in the same way there were so many about Florida in 2000 that 
to this date have never been sustained or substantiated.
    I do understand what you were saying about the Secretary of 
State's directives. That is a different issue. First I was 
talking about the claims that have been made----
    Ms. Millender-McDonald. But is it not directly the reasons 
why one should raise red flags here and why Ohio is being 
looked at? Ohio is not the only state that is going to be 
looked at but you were one of those who were because you were 
the deciding factor on the presidential election. Make no bones 
about it, no one, no one was trying to overthrow this election. 
No one.
    Mr. Jacobson. Am I still responding?
    The Chairman. Yes.
    Mr. Jacobson. Thank you. I guess I would say, first of all, 
as far as the 2004 election, I appreciate the fact that you are 
here in Ohio. My question was rhetorical mainly directed at 
proving why or suggesting why Ohio's system is better because 
of having the bipartisan independent Board of Elections unlike 
other states.
    Perhaps you took my rhetorical question as implying we 
didn't have anything for people to come and look at. That was 
not my suggestion. My suggestion was that Wisconsin had it gone 
the other way, would have also been the deciding factor.
    Ms. Millender-McDonald. And we would have been in Wisconsin 
today as opposed to Ohio.
    Mr. Jacobson. But what I am suggesting is we aren't in 
Wisconsin because it voted for the losing candidate. Had they 
voted for the winning candidate, perhaps we would have been 
there. As to the directives of the Secretary of State, which I 
think was the part of your question that I had not answered, I 
do believe that some of the directives raise concerns. I am 
glad to state that the one that you mentioned about the 80-
pound paper was withdrawn almost as soon as it was promulgated.
    Ms. Millender-McDonald. Nevertheless, it was done, sir, and 
those are the things that we carefully look at because, as 
Representative DeWine said, these things have become partisan. 
Images are so critical, especially when the stakes are high and 
stakes are high in presidential elections. When you have those 
types of things, of course, folks will go right to the jugular 
on that. This is why we have turned our attention to Ohio and 
did turn the attention to Ohio because of that. We would have 
turned those attentions to California or any other state had it 
been those types of overtures.
    Mr. Jacobson. The last point I would make is that Ohio had 
a difficult burden because of the involvement of groups that 
came from outside the state, groups that submitted large blocks 
of registrations, many of which were forged and falsified, all 
of which put a strain on the local board's ability to deal with 
things in an appropriate time frame. There were many things 
that combined in the fall to produce confusion, confusion that 
the Secretary of State attempted in a disappointing way at 
times to clarify. This was the heat of dealing with all kinds 
of outside interference. I think when he is here----
    Ms. Millender-McDonald. It happens in all states.
    Mr. Jacobson. Not to this level. I would suggest that he 
could better answer his motivations in dealing with the 
    Ms. Millender-McDonald. I understand but we will always 
have, no matter what state it is, interferences. You will have 
groups coming in just like someone said about some group that 
came all the way from Oakland or whatever. You are going to 
have groups coming from all over irrespective. That is the 
American way. You can't stop that. When we talk about 800-pound 
papers that will not be accepted, when we talk about people who 
cannot, those are not any incidents that are totally dedicated 
to people who are coming from out of state. That is your 
elected official.
    I am talking to you, sir, please.
    Mr. Jacobson. Sorry.
    Ms. Millender-McDonald. That is directly from your person 
who has the ultimate oversight of elections in your state so 
this is what we are talking about, not necessarily all of the 
confusion of these people who come in. They come in to the 
people's house. They come from all over. They come from every 
place and that is their right to do that but it still does not 
circumvent those last-minute directives that caused contingent.
    Mr. Jacobson. I would just say that fraudulent 
registrations are not a part of the American way and groups 
that are paid to come in and end up registering Mickey Mouse 
and some of the other people that were registered in return for 
crack cocaine, the millions of dollars that poured in in an 
attempt to influence Ohio I think is not normal and I would 
just state that it did make all of our jobs quite a bit more 
    Ms. Millender-McDonald. Mr. Jacobson, I would hate for you 
to characterize voters as crack cocaine. Please do not 
characterize those who are doing registration of people----
    Mr. Jacobson. You may not be aware of what specifically 
happened. A gentleman was arrested and I think pled guilty that 
he was paid in crack cocaine for submitting registration cards 
and the registration cards that he submitted included Donald 
Duck, Mickey Mouse, Mary Poppins, and all kinds of others.
    Ms. Millender-McDonald. Of course we have heard that, but 
is that not one incident of the many? We have to be very 
careful that we do not show any resemblance of arrogance on the 
parts of those who wish to vote and let their vote be counted. 
There are many minorities in this state and in every state who 
have been at the throws of not letting their votes be counted.
    Those long lines of 10 hours that Mr. Jacobson just spoke 
about, those are some of the problems, too, that tend to have 
disenfranchised voters because folks have to leave to go pick 
up their children. Folks have to go and take medicine that they 
did not bring because they thought they would be finished. 
These are the reasons why this committee is in Ohio.
    We just want it to be known that we did not just come to 
Ohio. I would love to have been with my family and not flown 
here but it was important. It is my responsibility as the 
Ranking Member on this Committee to find the facts. Thank you, 
Mr. Chairman.
    The Chairman. Let me note something off the bat here. Under 
the way the House committees proceed, there is not to be booing 
or clapping or emotion on either side, so we would ask you to 
adhere to the rule of the House.
    I would note before we move on to my colleague, as far as 
what the senator is referring to, I publicly spoke out against 
this. I am hoping this Committee addresses it. When they did 
the ``campaign finance reform'' they took union members and 
average people that are working in corporations and said, ``You 
can't participate in the system, but we will create a nine-
headed monster called the 527 and empower a very wealthy, in 
this case, Democrat billionaire, to try to put as much money in 
the system.'' And let me be fair about this. There is probably 
going to be a billionaire Republican that is going to come to 
the forefront----
    Ms. Millender-McDonald. Already, Mr. Chairman.
    The Chairman. The Republicans hope so. Therefore, I am 
hoping our Committee will restore the voice of the average 
union member and the average corporate person to participate in 
the political system and the energetic give and take of public 
debates. I am more than willing to correct that little monster 
that was created, not by the IDC, but by a couple people that 
didn't write the law tight enough in Washington.
    Ms. Millender-McDonald. I couldn't agree with you more, Mr. 
Chairman. If we are going to do away with 527s, let those 527s 
be done away with across the board. It was not only those on 
the Democratic side so don't let me start talking about the 
issues of the House, please.
    The Chairman. As we move on, you have seen the Millender-
McDonald and Ney piece of legislation for next week.
    Ms. Tubbs-Jones. Thank you, Mr. Chairman. The light comes 
on. I am assuming this is on.
    Let me begin with Senator Gardner. Senator Gardner, are you 
opposed to early voting, sir?
    Mr. Gardner. Am I opposed to early voting?
    Ms. Tubbs-Jones. Yes.
    Mr. Gardner. I think it depends a little bit how it is 
constructed. Generally speaking I believe we have widespread 
access to voting in this state. We have, again, as the 
    Ms. Tubbs-Jones. Let me state I only have five minutes. I 
am not a ranking member or chairperson. My question is real 
simple. Are you opposed to early voting, sir?
    Mr. Gardner. I don't think I have taken a public position 
yet. I have concerns about early voting.
    Ms. Tubbs-Jones. What about a voting holiday, sir?
    Mr. Gardner. I am not in favor of a voting holiday.
    Ms. Tubbs-Jones. What about no-excuse absentee 
registration, sir?
    Mr. Gardner. I am open to hearing the debate in Ohio on 
that but I am not in favor of that at this time.
    Ms. Tubbs-Jones. Do you understand that all of these 
concepts, sir, are proposed to permit easy access to voting 
such that voting lines would not be as long as they have been 
in the past?
    Mr. Gardner. I do, ma'am.
    Ms. Tubbs-Jones. Thank you. What about you, Senator 
Jacobson? Are you opposed to early voting?
    Mr. Jacobson. I am opposed to early voting or no-fault 
    Ms. Tubbs-Jones. Are you opposed to a voting holiday?
    Mr. Jacobson. I am opposed to early voting and no-fault 
absentee because voters do not have all the information about 
all candidates on the ballot in the weeks leading up to the 
    Ms. Tubbs-Jones. Excuse me.
    Mr. Jacobson. They only learn about it----
    Ms. Tubbs-Jones. Mr. Jacobson.
    Mr. Jacobson [continuing]. In time for election day.
    Ms. Tubbs-Jones. Mr. Jacobson.
    Mr. Jacobson. They may know the president but nothing else.
    Ms. Tubbs-Jones. Sir, I understand but I would ask for just 
a little bit of respect. I am asking you a question. Briefly 
answer my question. I only have five minutes. My question to 
you, sir, are you saying that somebody who registers to vote 30 
days before an election versus someone who registers to vote on 
the day of election has more information?
    Mr. Jacobson. No, I am not taking about registration in 
that case. I am saying that when people wait until election day 
to vote, there is the opportunity to learn about all the 
candidates and the issues. Early voting when it happens means 
that some voters have a lot less information 30 days out or 20 
days out than they would have----
    Ms. Tubbs-Jones. You understand, sir, that many, many 
states have early voting and----
    Mr. Jacobson. I believe it is a mistake. It reduces lines 
and it helps incumbents because people know the incumbents. 
They don't know challengers.
    Ms. Tubbs-Jones. Twenty days out of an election that is how 
you get to know a challenger. Is that what you are saying to 
    Mr. Jacobson. No. I am saying that most campaigns are 
conducted in this country by TV and they are conducted working 
backwards from election day. If it takes place before 
candidates have reached their base----
    Ms. Tubbs-Jones. What about----
    Mr. Jacobson [continuing]. The incumbent is well-known for 
months and years.
    Ms. Tubbs-Jones. What about the young people who are in 
Iraq and Afghanistan and they vote 30, 60 days out in order to 
get their absentee in? Are you saying to them that they are 
uneducated about their decision on who they vote for, sir?
    Mr. Jacobson. I am saying that when someone chooses to vote 
early, they are choosing to vote with less knowledge than they 
would have otherwise.
    Ms. Tubbs-Jones. Because in the last 30 days you get 
everything you need to know about any candidate?
    Mr. Jacobson. That is the way campaigns work in America. 
Maybe it shouldn't be. The incumbents are known for years. They 
send out newsletters. They are on TV. Challengers barely get a 
chance to be known at all----
    Ms. Tubbs-Jones. Let me ask you this.
    Mr. Jacobson [continuing]. Working backwards from election 
    Ms. Tubbs-Jones. Mr. Jacobson, please. If you would stay 
with me, sir.
    Mr. Jacobson. Sure.
    Ms. Tubbs-Jones. You said there was money left over from 
HAVA. Is any of that money going directly to local boards to 
administer information to the voters, sir, if you know?
    Mr. Jacobson. I guess some of the money is being used in 
that way. What I was speaking of is when we decided not to go 
with DREs and instead----
    Ms. Tubbs-Jones. How much money--Mr. Jacobson, do not talk 
on top of me, sir. My question is did money go to local boards 
to give them opportunities to implement HAVA?
    Mr. Jacobson. I don't believe I can answer the gentlelady's 
question because----
    Ms. Tubbs-Jones. Thank you very much.
    Mr. Jacobson. I would like to--I can answer it if you would 
let me explain the answer.
    Ms. Tubbs-Jones. Answer my question.
    Mr. Jacobson. Thank you. The reason we have money left over 
is because when we decided not to do DREs for everybody and 
instead to do optical scanning----
    Ms. Tubbs-Jones. Okay. I am with you on why you have money 
left over. I am asking you did any money go to local boards for 
them to implement or give information to their voters about 
what was going on?
    Mr. Jacobson. I do believe there was money we appropriated 
that was supposed to be used for educating poll workers as well 
as the money that was used to educate voters directly.
    Ms. Tubbs-Jones. But you don't know whether any of that 
money went to the local boards or not?
    Mr. Jacobson. I do believe it was supposed to but I am not 
in charge of spending the money. We make appropriations.
    Ms. Tubbs-Jones. Lastly, sir, are you aware that, in fact, 
the Secretary of State has the ability to dismiss members of 
boards of elections?
    Mr. DeWine. Yes, I am.
    Ms. Tubbs-Jones. And so the argument that it is a 
bipartisan system, you have one partisan who is capable of 
dismissing members of the Board of Elections as Kenneth 
Blackwell threatened to do in this past election, HAVA gives 
way to the real bipartisan nature of the boards. Does it not, 
    Mr. DeWine. Mr. Chairman, to the representative, I believe 
that he can only remove those board members for cause and would 
have to replace them with a person of the same party.
    Ms. Tubbs-Jones. I understand but I am saying to you that 
he has the ability to dismiss members of the board. In fact, he 
threatened to do that in this election. Did he not, sir?
    Mr. DeWine. I believe I heard that, yes.
    Ms. Tubbs-Jones. He did, in fact. You didn't just hear it. 
It was, in fact, all over the newspaper and television that he, 
in fact, did that. Correct?
    Mr. DeWine. Correct.
    Ms. Tubbs-Jones. Thank you, Mr. Chairman.
    Ms. Millender-McDonald. Mr. Chairman.
    The Chairman. Gentlelady.
    Ms. Millender-McDonald. Let me just for the record outline 
the amount of money that the state of Ohio has received so far. 
You are the third leading state to have received HAVA money 
with $135,704,000. You are the third state to receive the 
largest amount. I just wanted to make that for the record, Mr. 
Chairman, outside of Florida with $159,711,000. Of course, my 
state has over 35 million people and received $181,580,000.
    Mr. Chairman, I would like to just ask these gentlemen to 
give us what they feel would be an improvement for elections if 
you can say that with two or three sentences. I would like to 
get that before we leave. Improve upon your elections.
    The Chairman. I think we can actually combine the last 
question that I would have, which is why we are here today. 
What can be done to improve upon elections? My other question 
is, in general, how do you believe HAVA worked? That is what I 
am here today to find out, how HAVA worked.
    Also, I would be remiss if I didn't say as the author of 
HAVA, I am proud that my state got the lion's share of the 
money. Although it was equally distributed across the country, 
I wouldn't be doing my job if my state didn't do that. 
California didn't do bad either. If you would like to, you can 
combine the two questions.
    Mr. DeWine. Mr. Chairman, members of the Committee, as you 
have pointed out, as the sponsor of the bill I believe that 
HAVA worked very well in the election of 2004. As far as my 
suggestion for what one or two things--to the Ranking Member 
one or two things that we need to be doing here in Ohio, I 
think we are working on those in House Bill 3 which I have 
    I think probably one of the most important things that we 
can do is codify as many of the directives that the Secretary 
of State has put out as possible. Put them into code, put them 
into law, put them in the books so that they are not left to 
discussion and debate, left to partisan nitpicking, days, 
weeks, hours, minutes before an election or even on election 
day. I believe if we are able to achieve that sometime this 
year, we will have made significant strides in ensuring safe, 
transparent, and fair elections in the state of Ohio. Thank 
    Ms. Millender-McDonald. Thank you so much.
    Mr. Jacobson. Thank you. First of all, I think HAVA was 
helpful because it ended what could have been an interminable 
debate over what is the best way to take lessons from the 2000 
election and it gave us a standard that we would all work to 
emulate and to achieve.
    Secondly, I think what we can do better and should do 
better, we should ensure that we have confidence in our 
elections by requiring every voter to show ID, by requiring 
that those who want to influence what goes on on election day 
have better, clearer guidelines as to what they can do and what 
they cannot do so that we do not have some of the confusion.
    Thirdly, I think we need to make sure that we have well-
crafted our voting machine deployment and standards so that we 
do not again face the questions that we have this year about 
whether or not the problem was the systems or their deployment, 
whether or not they were. There are so many issues that could 
combine to create long lines. We need to know what everyone 
will do so that we in the future will be able to prevent that 
from happening.
    Ms. Millender-McDonald. Thank you.
    Mr. Gardner. Thank you, Mr. Chairman. I, No. 1, wish we 
could have more fully implemented HAVA in the 2004 election but 
would like to congratulate early and look forward to 
legislation sponsored by Representative DeWine and in the 
Senate by Senator Kevin Coughlin of Cuyahoga Falls, as to 
improvements that will be made. There is no question in my mind 
that we will have good legislation in the weeks ahead.
    I think, again, to reiterate that I hope that this 
committee will listen to and respect the views and concerns 
expressed by local boards of election members or their 
association represented here today that we should not attempt 
to mandate an unproven technology so I am hopeful that we can 
at least relax or repeal or change some of which is already 
Ohio law and not necessarily speaking to the federal HAVA act.
    The final thing I think I would say is I understand the 
Secretary is going to be appearing before you today at some 
point and that Ohio does have--I served on a Board of 
Elections. I didn't detect any partisanship on our board that 
interfered with our ability to conduct elections so I hope that 
is maintained in this date and I am not aware of any--I became 
a member of a Board of Elections when Tony Celebrezze was the 
Secretary of State. Actually, a fine Secretary of State in 
    I don't believe any Secretary of State ever has abused his 
ability and his authority to appoint or remove members of a 
board of election. We might want to consider looking at that 
but I think, quite frankly, members of the Committee, not much 
to look at with respect to our strong bipartisan tradition in 
the state in carrying out important election duties.
    Ms. Millender-McDonald. And we are not saying unwillingly 
abused. We are simply saying that these are things to place. 
Mr. DeWine does give an appearance of abuse or we would not say 
that seriously. We want to make sure. Mr. DeWine, your 
legislation does it speak to same-day voting or holiday voting 
or what?
    Mr. DeWine. Correct.
    Ms. Millender-McDonald. Does it speak to any variations of 
voting for the voters here in this state?
    Mr. DeWine. Mr. Chairman, to the Ranking Member, it does 
not yet. We have had a series of robust hearings in the House 
Committee. There is a separate piece of legislation introduced 
by my colleague from Toledo that introduces the idea of no-
fault absentee with the State of Ohio. That issue under House 
Bill 3 is getting lots of heavy discussion and debate. It will 
remain to be seen whether it fits in as a piece of this 
    Ms. Millender-McDonald. We will be following your 
legislation. Thank you all so much.
    The Chairman. I want to thank all the members of the 
legislature. I appreciate the tough job you have. I appreciate 
the tenacity with which you do your job and the thoughts that 
you have.
    Ms. Millender-McDonald. Thank you for coming.
    The Chairman. This is helpful to us today. We will continue 
to appreciate, any insight you have on HAVA, as it goes through 
its other phases. Also I want to assure you that our door is 
always open.
    Ms. Millender-McDonald. My door is open to you, Mr. 
    The Chairman. Here in the state we talk to Democrats and 
Republican board of election members, not only for the 18th 
District, but from around the state. We are willing to listen. 
Our Ranking Member is Carson; Stephanie Tubbs Jones and members 
of the delegation are always open. With that, thank you for 
your time.
    We'll move on to Keith Cunningham, President of the Ohio 
Association of Election Officials and Director of the Allen 
County Board of Elections; Michael Sciortino, the Director of 
the Mahoning County Board of Elections and prior President of 
the United Association of Election Officials; Michael Vu, 
Director of the Cuyahoga County Board of Elections; and William 
Anthony, Chairman of the Franklin County Board of Elections. I 
want to thank the gentlemen for being here today. We will begin 
with Mr. Cunningham.



    Mr. Cunningham. Chairman Ney and members of the Committee 
on House Administration, my name is Keith Cunningham. I am the 
Director of the Allen County Board of Elections and the current 
president of the Ohio Association of Election Officials. Thank 
you for the opportunity to speak with you today.
    Let me begin by saying that despite the rhetoric and 
sometimes hysterical mania, the 2004 Presidential Election in 
Ohio was fairly administered and absent of fraud. That is not 
to say there were not some problems. However, those problems 
were isolated, not wide spread, and at worst, were the result 
of innocent and unintentional human error or circumstances that 
were simply not anticipated or were beyond the control of 
election administrators.
    Ohio election officials processed over three quarters of a 
million new registrations in 2004 resulting in a 12 percent 
increase in statewide voter registration. We successfully voted 
nearly 5.8 million people, the largest turnout in the history 
of our state. The acceptance rate of provisional ballots in 
Ohio was one of the highest in the nation at 77.9 percent. Let 
me state to you unequivocally; Ohio election officials 
performed their duties in exemplary fashion on November 2, 
    Following your lead with the Help America Vote Act, I would 
like to share some of the items the O.A.E.O. are currently 
advancing in our State Legislature to help us better serve the 
voters of our state.
    We believe Ohio should adopt no excuse absentee voting. We 
are not suggesting that no excuse absentee voting is a panacea. 
We are suggesting that it is a cost effective and easy to 
achieve measure that will provide an immediate albeit partial 
solution to long lines.
    We believe the right for anyone other than an election 
official to challenge a voter's registration should be cut off 
at 20 days prior to election day. We do understand the role for 
challengers; however, we firmly believe that the rights of 
challengers must be fairly balanced with the rights of voters. 
Last minute challenges and lack of clear procedural guidelines 
under Ohio law proved most disruptive to many of Ohio's voters 
in 2004.
    We believe that individuals and advocacy groups engaged in 
the registration of voters should be required to deliver those 
registrations to the appropriate Board of Elections or the 
Secretary of State within a pre-determined amount of time. 
Ideally no more than 10 days. This will prevent thousands of 
registrations from being turned in at the last minute and, 
thus, increasing the risk that some voter's names will be 
mistakenly entered or even possibly omitted from the 
registration rolls due to severe time constraints.
    We believe that individuals and advocacy groups soliciting 
registrations should be required to turn in all registrations 
they gather not just those they believe advance their cause or 
position. This is probably even more consequential than my 
previous point. In this scenario the person completing the 
registration form believes that they are being registered to 
vote, only to find on election day that they are not. In this 
instance, even a provisional ballot cannot help enfranchise 
this voter.
    We are in complete support of Chairman Ney's efforts 
calling for the immediate and full funding of HAVA. Quite 
frankly, we must question Congress's true depth of commitment 
to the principals set forth in HAVA if they are not willing to 
fully commit the funds promised and needed to implement these 
mandated provisions.
    We believe that the deadlines for HAVA compliance, along 
Mr. DeWine's lines referring to voting machines, should be 
immediately adjusted to reflect the late start realized by the 
EAC and the Federal Government. We have only one chance to get 
this right and the risk that millions of federal dollars will 
go to waste is simply too great. The cost-benefit analysis 
demands that these deadlines be extended in order to best serve 
    On a personal note, I would like to express my extreme 
disappointment in the harsh behavior of a few members of the 
United States Congress during the certification of the Ohio 
presidential vote. In particular, I am deeply offended by 
Representative John Conyers' call for an FBI investigation of 
Ohio's election officials. The FBI is our country's highest 
investigative agency for criminal matters. This affront to the 
integrity of my Ohio colleagues in the absence of any 
compelling criminal evidence should be considered an 
embarrassment by the other members of Congress.
    Finally, as has been discussed here today, Ohio does have a 
bipartisan management structure within our election system. I 
believe it is a model for others to consider. Ohio's election 
officials, Republican and Democrat, have demonstrated to this 
nation that even while partisan, we can commit ourselves to the 
higher ideal of fair and honest democratic elections.
    Again, thank you for the opportunity to present these 
remarks here today.
    [The statement of Mr. Cunningham follows:]


    Mr. Sciortino. Chairman Ney, members of the United States 
Congress House of Representatives Committee on House 
Administration, my name is Michael Sciortino and I am Director 
of the Mahoning County Board of Elections located in 
Youngstown, Ohio. Let me first say that it is truly an honor to 
be before you today presenting testimony regarding the Ohio 
2004 election experience and The Help America Vote Act (HAVA) 
Implementation in Ohio.
    I will begin my testimony by sharing with you some of my 
experiences in administering the November 2, 2004 Presidential 
Election in Mahoning County. Next, I want to talk about 
Mahoning County's journey in converting from an optical scan 
election system to a Direct Recording Election (DRE) system. I 
will then conclude my testimony by highlighting some of the 
work I have been engaged in with the United States Election 
Assistance Commission (EAC) as a member of the Standards Board 
and current Chair of the Standards Board Executive Committee.
    To begin with, the Mahoning County Board of Elections ran a 
solid election on November 2, 2004. The success we encountered 
on election day was due in no small part to the tireless work 
of our 1,300 poll workers and talented and hard working board 
of election staff. In the months and days leading up to the 
election, we were keenly aware that the eyes of the world were 
truly watching. Ohio was THE Swing State.
    I can personally attest to the constant warnings of this 
notion by both the Kerry lawyers and Bush lawyers, whom I got 
to know very well weeks before the election.
    In administering the election, our approach in Mahoning 
County was to make our operation as transparent and open as 
possible; to ensure the candidates, lawyers, and most 
important, the voters, that our system was fair, accurate and 
accountable. Our message was simple. We had nothing to hide. I 
know the lawyers and candidates appreciated this message and 
quite candidly, the media did as well.
    In the months leading up to November, I watched our new 
voter registration numbers soar to record levels. In the 2000 
presidential election year 8,500 new registrations were filed. 
In 2004 we had nearly 18,000. I also watched our absentee 
ballot requests sky rocketed from 12,000 in the 2000 election 
to 17,537 last year, a 61 percent increase. Boards of Elections 
across the state encountered similar experiences.
    In 2004 I had the pleasure of serving as President of the 
Ohio Association of Election Officials. My goal as President 
was to improve and provide Ohio Boards of Elections with as 
much communication on pending election administration issues as 
possible. With the help of Ohio Secretary of State Ken 
Blackwell and his staff, my goal was accomplished.
    Two and a half weeks before the election, Secretary 
Blackwell committed to providing daily telephone conference 
calls between the Secretary of State's election administration 
staff and Ohio Boards of Election. Chairman Ney and members of 
the Committee, this unprecedented practice proved to be 
invaluable as we were able to improve communications and work 
through critical election issues. Questions regarding voter 
registrations, absentee voting, provisional voting, election 
day challengers were answered in a timely and thorough manner. 
Moreover, these daily telephone conferences continued well into 
December addressing official canvassing issues and state-wide 
recount procedures.
    As an election official in Ohio who heard all of the 
allegations of poor election management surrounding the past 
election, I submit that these allegations were groundless. Ohio 
faced many hurdles in 2004 but we proved that in Ohio we have 
good election laws administered by good people who want nothing 
more than to administer the ``perfect election.'' We all know 
that a perfect election does not exist, but in my mind it 
doesn't hurt to strive for perfection.
    I want to switch gears now and talk a little bit about 
voting systems. A critical facet of HAVA rests with improving 
the way votes are cast. In Mahoning County, we began our search 
for a new voting system back in 1998 as our optical scan system 
was reaching the end of its useful life. We spent the next two 
years meeting with vendors and conducting test elections.
    In 2001, as HAVA became a reality, we were careful to 
select a system that would meet the impending federal 
requirements. We secured $3,000,000 from the taxpayers of 
Mahoning County for a new election system and began the 
conversion process. We completed the installation in 2002, and 
have now conducted 6 good elections using DRE. Mahoning County 
was a pioneer county in Ohio leading they way for improved 
election day balloting.
    Unfortunately, our success with DRE changed with the 
passage of House Bill 262 but, fortunately, Ohio Senate Bill 77 
has been introduced that would permit HAVA-compliant machines 
to be grandfathered from the voter verified paper trail at 
least until the VVPAT becomes feasible.
    Ballot security and reliable elections will always be more 
than ``what type of voting machines do you have.'' Instead, 
good elections are a function of the systems, procedures and 
people that make elections happen, as well as the voting 
equipment. In Ohio we are fortunate to have a particularly 
strong system of checks and balances with equal numbers of 
Democrats and Republicans watching each other throughout the 
    I want to conclude my testimony now by examining the 
Election Assistance Commission. HAVA established the U.S. 
Election Assistance Commission. Central to its role, the 
Commission serves as a national clearinghouse and resource for 
information and review of procedures with respect to the 
administration of Federal elections.
    HAVA calls for establishment of two boards to advise the 
EAC: the EAC Standards Board and the EAC Board of Advisors. The 
EAC Standards Board is composed of 110 members drawn from State 
and local election officials.
    I am please to report that I am Ohio's local election 
official serving on the EAC Standards Board. At the Standards 
Board winter meeting in January, I had the distinct pleasure of 
being elected by our membership to serve as one of nine 
Standards Board members to serve on its Executive Board. Most 
recently I was nominated by the Board to become the committee's 
    I stand ready to serve Ohio as Chair of this Board and I am 
committed to helping the EAC implement HAVA in a consistent and 
timely manner. I am fortunate to share Ohio's experiences with 
the Standards Board and EAC as we work through important issues 
like drafting voluntary election system standards and 
administering Statewide Voter Registration Lists.
    I know that implementing HAVA across our 50 states and 
territories is challenging and the EAC truly has a tough job. 
But I want to assure this Committee the lessons I learned and 
experiences I have gained by administering Election 2004 in 
Mahoning County have trained me well for playing a key role in 
assisting the EAC to implement HAVA. Thank you.
    [The statement of Mr. Sciortino follows:]

                    STATEMENT OF MICHAEL VU

    Mr. Vu. Thank you, Chairman Ney, Ranking Member Millender-
McDonald, members of the Committee on House Administration, and 
our Cuyahoga County Congresswoman from Cuyahoga County, 
Stephanie Tubbs-Jones, and for inviting me to speak on the 
topic of the 2004 General Election and the Help America Vote 
    This past year was amazing and could be categorized as the 
Olympics of Presidential Elections for Cuyahoga County. In 
fact, when the November general election was certified, it 
became the largest election Cuyahoga County citizens 
experienced with 687,255 citizens going to the polls and 
casting a ballot. We had a 68 percent turnout which may seem 
small, however, if we were to take away the inactive registered 
voters [per the National Voter Registration Act], Cuyahoga 
County had nearly a 90 percent turnout, a wonderful sign of a 
much anticipated election.
    Like in every election, separate and unique problems 
generally present themselves. This past election was no 
different. Considering the massive scrutiny and challenges that 
faced the Cuyahoga County Board of Elections, it is my belief 
the election was conducted in the most professional manner 
    There were incidences of long lines and power outages on 
election day, however, with the collaboration of many agencies, 
the Board of Elections responded and resolved each issue as 
quickly and effectively as possible. Although, the Board of 
Elections believes we conducted a good election, there are many 
areas of improvement and the 2004 Election, surely, was one to 
use as a guiding light to continue our efforts in election 
    Considering the enormity of the election, preparation for 
the 2004 General Election began in 2003. The Board of Elections 
created a strategic plan in anticipation of the 2004 General 
Election. Public education initiatives; a countywide mailer; a 
Road Map to the 2004 Election Forum; an analysis of residual 
votes in the county; coordination with county and state 
agencies and our 59 cities and villages; a complete review of 
departmental procedures and collaboration with local companies 
were all made in an effort to mitigate major issues that could 
possibly arise.
    Many of these action steps were a result of the 2000 
Presidential Election, including the need to educate voters to 
check for ``chads'' and to have poll workers use a 
demonstration ballot on every device before any official 
ballots were cast on any voting devices.
    There were election related issues that Cuyahoga County had 
to navigate through before the election. We had capacity issues 
in three main areas: registration forms, absentee ballot 
requests, and phone calls.
    With regard to registration forms, the Board of Elections 
saw interested organizations converging on Cuyahoga County from 
Washington State to Washington D.C. interacting with the public 
and registering them to vote. By the end of the deadline on 
October 4, 2004, the Board of Elections processed 356,598 
registration forms of which 162,020 were newly registered 
voters. This was 3 and 5 times, respectively, more than what 
was experienced in the 2000 Presidential Election.
    We had nearly 100,000 people request an absentee ballot 
which was 30 percent more than the 2000 Presidential Election. 
The numbers of phone calls generated were considerably higher. 
In fact, we faced an equal amount of phone calls on the day of 
the registration deadline as we did for voting day in 2000.
    Another area of concern which Cuyahoga County experienced 
was the handling of incomplete registration cards. Currently, 
there is no statute or directive on how to handle incomplete 
registration cards. At issue is when a registration card is 
submitted prior to the deadline, but determined to be missing 
some vital piece of information, could the Board of Elections 
accept it as timely and allow the voter to cure their record 
after the deadline. Although we did not receive direction in 
this manner, we erred on the side of the voter and allowed them 
to cure their voter registration form. This is an item for 
state legislative action and should be remedied as quickly as 
    Local and national voter registration organizations were 
also a contributing factor that affected voters. On several 
occasions, we experienced a number of registration 
organizations holding on to completed voter registration cards 
for months or the cards were turned in after the registration 
deadline. In fact, in two days during the month of August the 
Board received 16,000 registration cards from one organization.
    In some cases, these cards were dated back in February and 
March of 2004. In order to prevent this from occurring in the 
future, we met with all local and national voter registration 
groups and asked them to submit, as a courtesy, the 
registration forms every five days. In another instance, we 
received over 3,000 voter registration cards one week after the 
October 4th deadline. In this case, we were unable to accept 
the registration cards.
    The timeliness of state directives also impacted our 
performance. The most conspicuous of these directives was the 
issuing of provisional ballots. The outcome was the 6th 
District Court of Appeals reversal of the lower court's 
decision and instituting an additional provisional affirmation 
statement to be filled out by the voter.
    This consequently impacted the election day and post-
election activities, where poll workers experienced last minute 
changes on administrative matters they had never experienced 
before. Also, the Board of Elections had to contend with the 
complex process of verifying and validating these provisional 
    On the day of the election, we had polling location 
coordinators in nearly all 584 polling locations armed with 
cell phones to contact the Board of Elections in case of any 
issues or simply if a voter had a question that the poll 
workers did not have an answer. We purchased 654 additional 
punch card voting units for a total of 9,645 for the county to 
disperse to ``hot spots'' as a result of the surge in new 
registrants in the County.
    Six zone stations were strategically placed throughout the 
county to respond. We maximized our capability to have 
additional computers and phone lines and we created phone banks 
in two separate county government buildings.
    Turn out was the largest issue that we had to contend with 
on election day. However, this only occurred in a handful of 
voting precincts out of 1,436. From different reports the 
longest line reported was two and a half hours coming from a 
suburban and urban voting precinct. This is unacceptable and we 
are investigating why individuals had to wait as long as they 
    Part of the lengthy lines can be attributed not to the lack 
of equipment, but as a result of voters waiting to be processed 
to receive a ballot. Also, we are attempting to comprehend how 
voters' behavior and poll worker training issues play a part in 
creating the long lines.
    After election day there was one notable concern that we 
were aware of and had to address, provisional ballots. The 
direct result of ill-timed directives, litigation and court 
decisions brought concerns over how to consistently and 
uniformly verify and validate provisional ballots.
    In Cuyahoga County 25,309 provisional ballots were cast of 
which 16,757 were deemed valid and 8,552 were considered 
invalid, a 66.3 percent acceptance rate. In comparison to the 
2000 Presidential Election the number of voters going to the 
polls in 2004 increased by nearly 100,000 voters, yet the 
percentage of individuals having to cast a provisional ballot 
proportionately decreased.
    I believe our public education efforts contributed to that 
decrease in percentages. However, the number of valid and 
invalid provisional ballots may indicate the confusion poll 
workers had on issuing the ballots and confirm the negative 
impact last minute changes had on poll workers and voters 
during the days leading up to and on the election.
    The passage of the Help America Vote Act was necessary for 
the country to bring accountability and awareness to elections 
in light of the controversy and division born out of the 2000 
Presidential Election. The Help America Vote Act instituted 
many new changes and coupled with the National Voter 
Registration Act overhauled many components of election 
    It was a wonderful beginning to renew our efforts to create 
a more secure foundation for democracy. For many states, the 
principles laid out in the Help America Vote Act were 
instituted for the first time in the 2004 Election. Across the 
United States, HAVA requirements were implemented in order to 
raise the standards of our electoral process.
    The Help America Vote Act has indeed, made a positive 
impact on election administration. Voters have a safety net 
across all 50 states, voters will have an opportunity to remedy 
any selections through second chance voting and the public can 
be assured the voter registration rolls will be more accurate 
as a result of the statewide voter registration system than in 
the past.
    The Help America Vote Act for its purely altruistic 
intentions contains three looming issues that deserve 
attention. I consider these the ``penumbra'' or gray areas that 
require specific definition. These include a definition of a 
permanent paper record; jurisdiction; and a single, uniform, 
official, centralized, interactive computerized statewide voter 
registration list.
    The Election Assistance Commission has been very helpful in 
establishing ``best practice'' guidelines and they should be 
thanked for their hard work and their proactive role in moving 
the Help America Vote Act along. However, there is no single 
body to give us a standard of acceptability and a definitive 
direction to comply with the Help America Vote Act.
    Next year, 2006, will be the true test for the Help America 
Vote Act, when all of the requirements will converge. This will 
be the true test of whether all fifty states and territories 
are able to comply with the spirit of election reform.
    Thank you, again, for this opportunity to give testimony, 
and I would be more than happy to answer questions the 
committee members may have.
    The Chairman. Thank you, Mr. Vu.
    Mr. Anthony.
    [The statement of Mr. Vu follows:]


    Mr. Anthony. Good Afternoon Mr. Chairman and honorable 
members of the Committee. I am pleased to represent the bi-
partisan members and administration of the Franklin County 
Board of Elections today in my capacity as Chairman. I am also 
Chairman of the Franklin County Democratic Party, and I am a 
staff representative for the Ohio Civil Service Employees 
Association, Local 11.
    Mr. Chairman, there are five areas that I will address 
today: voter registration, provisional voting, voter 
information, voting machine allocation, and the misreported 
unofficial election results from Gahanna 1B.
    As the Committee is well aware, there were enumerable 
political organizations spending tens of millions of dollars on 
voter registration drives. In Franklin County alone, we 
processed more than a quarter of a million voter registration 
forms between January 1, 2004 and the close of registration in 
early October. This was twice the registration activity as 
compared to the same period in 2000.
    Knowing that these registration drives were taking place, 
but also knowing that the Board had no authority to actually 
regulate them, we engaged each organization privately to ensure 
that each understood the policies and procedures of the 
Franklin County Board of Elections, the requirements of federal 
and state law, including HAVA, and encouraged them to submit 
their registration forms each week.
    As organizations submitted completed registration forms, 
Staff reviewed the forms and provided each entity with feedback 
as to recurring problems. By engaging in this proactive 
monitoring process, the Board protected those registering to 
vote and reduced possible occurrences of fraud.
    Second, Mr. Chairman is provisional voting. Ohio has been 
permitting the use of provisional voting since the early 
1990's. However, nowhere in Ohio's laws will one find the words 
``Provisional Ballot.'' Over time, individual county Boards of 
Elections developed their own rules and regulations governing 
these important decisions.
    Concerned about equal protection accusations, the Franklin 
County Board of Elections in a formal resolution requested on 
August 10, 2004, that the Ohio Secretary of State provide 
guidance on this important issue. No response was received 
until the issuance of Directive 2004-33 on September 16, 2004.
    While a federal appeals court ultimately upheld the letter 
of the Secretary's interpretation, the resulting confusion, 
particularly in the thirty days immediately preceding the 
Election, was a detriment to the voters, our poll workers, and 
the electoral system.
    To help limit confusion within Franklin County, our Staff 
developed a nearly 400-page Street and Road Guide that was 
provided to each precinct that listed the assigned polling 
place for every address in the County. This allowed poll 
workers to assist provisional and other voters in finding the 
correct precinct in which their ballot would count.
    Additionally, since all of our poll workers had received 
training prior to the final Court decision, the Board mailed to 
each of its nearly 5,000 poll workers a detailed four-page 
letter outlining how to administer provisional voting based 
upon the appeals court ruling. Because Franklin County took 
this and other positive actions, 4 percent of our nearly 15,000 
provisional ballots had to be disqualified for being cast out 
of precinct.
    The third category, Mr. Chairman, is voter information 
known in political circles as get out the vote, GOTV. Because 
of intentional or unintentional activities of others, voters in 
Franklin County received misinformation about election day 
    Approximately three weeks before the Election, the Board 
determined that so much misinformation had been disseminated 
that we responded by mailing a post card to every one of the 
847,000 registered voters in the county notifying them of their 
correct precinct and voting location at a cost of more than 
$250,000 to the County.
    As I wrap-up my testimony, Mr. Chairman, I would like to 
address two situations in Franklin County that have been taken 
up by the conspiracy-theorists and internet-bloggers alike as 
evidence of fraud and their reason why Franklin County's and 
Ohio's election results cannot be trusted. These two situations 
are, of course, the long lines at voting locations allegedly 
due to the intentional misallocation of voting machines and the 
misreported, unofficial election night results from one of our 
county's precincts.
    Yes, Mr. Chairman, and members of the Committee, there were 
long lines to vote in Franklin County, in all of Franklin 
County. Some have alleged that precincts in predominantly 
African-American or Democrat precincts were deliberately 
targeted for a reduction in voting machines thus creating the 
only lines in the county.
    I can assure you Mr. Chairman, and members of the 
Committee, both as a leader in the black community, Chairman of 
the local Democratic Party and a labor leader, and as Chairman 
of the Board of Elections that not one of these accusations are 
    On election day, I spent several hours driving around the 
county in the rain and observed long lines in every part of the 
county: Urban and suburban neighborhoods, black and white 
communities, Democrat and Republican precincts. Long lines on 
election day were the result of three things and these three 
things only.
    First, nearly one hundred thousand more people voted on 
Election Day 2004 than during 2000. This is almost a 25 percent 
increase over the previous presidential election. Which brings 
me to the second reason. Despite the fact that we had a 
dramatic and historic increase in the number of voters compared 
to previous elections, the resources available to the Franklin 
County Board of Elections remained static.
    In 2000, the Board of Elections owned an inventory of 2,904 
voting machines for 680,000 registered voters in 759 precincts. 
Four years later, in 2004, the Board of Elections owned an 
inventory of 2,904 voting machines, the exact same number of 
voting machines as in 2000, a static resource that had to be 
spread even thinner to meet the increased demand of voting 
machines for 847,000 registered voters in 788 precincts.
    Knowing this, why didn't we purchase more voting machines? 
Because of the passage of HAVA by Congress and Ohio's House 
Bill 262 requiring a Voter Verifiable Paper Audit Trail, all 
previously discussed plans to purchase additional machines for 
implementation in 2004 were canceled.
    Third, and finally, the 2004 General Election ballot was 
exceptionally lengthy. In the city of Columbus alone the 
situation was particularly difficult as the ballot included 
eight long bond issue questions and a referendum in addition to 
State Issue One, school levies, and local options.
    The final situation, Mr. Chairman and members of the 
Committee, has been used by some in an effort to undermine to 
the credibility of the election results specifically and the 
benefit of electronic voting generally. On election night, as a 
part of the unofficial results, the Franklin County Board of 
Elections reported that candidate George W. Bush had received 
4,258 votes in a precinct where only 638 voters had voted.
    Once the mis-reported result was discovered, full-time 
staff reviewed the election night report printed for the poll 
workers from each machine in the Gahanna 1-B precinct. The 
error was narrowed down to one machine, machine number 013717. 
Staff then generated a machine memory report directly from the 
3 memory tables in the machine in question. Staff did the same 
for the cartridge used in that machine. The results from these 
two reports were then compared to the election night results 
tape generated by the machine for the poll workers and the 
actual recorded results were consistent across all three 
reports. The voting machine had functioned precisely as it was 
supposed to have and properly recorded 115 votes for Bush. 
Copies of these tapes are being submitted today for your review 
and inclusion in the official record.
    Mr. Chairman, Franklin County was the battleground county 
of the battleground state. Many people, whether they wished us 
well or ill, predicted a train wreck in Franklin County and 
Ohio. Because of the proactive attitude of our professional 
staff, their hard work and dedication, and that of our nearly 
5,000 poll workers, Franklin County was not a train wreck.
    Do we have room to improve? Absolutely. To that end the 
Board conducted a thorough self-review and communicated this 
finding in our 2004 Report to the Community which I have 
submitted today for your review and for inclusion into the 
record. I am pleased to report to you, Mr. Chairman and 
honorable members of this Committee, that Franklin County rose 
to the challenge in Election 2004, met its critics head on, and 
successfully administered an election that was fair, 
accessible, and accurate. Thank you very much, Mr. Chairman, 
and member of the Committee.
    The Chairman. Thank you.
    [The statement of Mr. Anthony follows:]

    Ms. Millender-McDonald. Mr. Chairman, before you get 
started, may I please ask Mr. Anthony to supply us with your 
testimony. We must have the copy of your testimony so that we 
can have it for my record as well as the record of the 
    Mr. Anthony. Yes, ma'am.
    Ms. Millender-McDonald. We have everyone's but yours.
    Mr. Anthony. I am sorry. We just got finished with a couple 
of hours ago. We will provide it.
    Ms. Millender-McDonald. Thank you.
    The Chairman. I will ask a few questions. I don't want to 
dominate the entire time. I want to thank all of you for being 
here. I think you are probably one of the most important panels 
because you do this, and you do it all the time. You have a lot 
of good poll workers, and do a good job with all the things you 
have to deal with. Additionally, you are at the local level. I 
think it is important, as we put together the Help America Vote 
Act, that we consult the election center and the individuals 
that represent you.
    Also, I wish we could have gotten the Help America Vote Act 
quicker. I wish the EAC could have been put together quicker. 
One of the reasons it took us a long time was because we went 
through this line by line and literally had a lengthy 
conference committee where members actually sat there and 
actually read legislation until 5:00 in the morning. Time after 
time, members reread the bill, literally 30 times, Democrats, 
Republicans, staff, and everyone in the room. With this you 
don't want to get it wrong.
    Now, it is not perfect, and that is why we are here today. 
I would appreciate your comments on HAVA. I am not blaming any 
one single entity or individual, but the delay Ohio had in 
implementing HAVA made things difficult. That brings me to my 
first question. I have some individual questions and some 
generic questions for anybody that wants to answer.
    Mr. Sciortino, I would like to address your concerns with 
HAVA. Let us reiterate that HAVA, in fact, does not say that 
Franklin County has to have the same system as Mahoning County 
or Belmont County or other counties. That is an individual 
decision of the states and the legislature. You do have the 
issue of keeping your DREs, do you not? To clarify, isn't that 
a major issue in being able to implement the vote?
    Mr. Sciortino. Mr. Chair, that is precisely the major issue 
that Mahoning County is facing. As I mentioned in my testimony, 
back in 1998 we began looking at election systems wanting to 
get away from optical scan into a DRE-based system. We now have 
the DRE system. I am not advocating that the DRE system is a 
perfect system whatsoever.
    I am advocating that in terms of Mahoning County it is the 
best fit for Mahoning County. With the passage of House Bill 
262 we are faced with either retrofitting our DRE machines with 
some type of voter verified paper trail mechanism which does 
not exist with the current election system and software.
    Or simply putting our DRE machines aside and having the 
state purchase the DRE machines and repurpose an optical scan 
system for Mahoning County. We spent $3 million on our DRE 
system which under the Help America Vote Act complies because 
we purchased this system under the existing '02 federal 
guidelines and it is HAVA compliant after 2000.
    But we face being noncompliant with the Ohio rules in 2006 
so either we are grandfathered out of VVPAT or VVPAT is 
repealed or VVPAT or set aside for the time being where some 
workable standard for retrofitting will come into play or 
simply the state purchases our machines from us and purchases 
the new optical scanners.
    The Chairman. You had optical scanners at one time in 
Mahoning County.
    Mr. Sciortino. Right.
    The Chairman. In Georgia, when they converted from optical 
scans to DREs, they went from 7 percent under or over error 
rate, I hope I am quoting that correctly, which meant that 
under the DRE system they can scan 71,000 more people than 
under the optical scan. I don't know who they are or who they 
voted for. It is irrelevant.
    It is important that 71,000 more people could be counted. 
Their vote could be counted under Georgia's rates. Do you 
happen to have any statistics? You don't have to provide them 
today, but do you have any statistics from Mahoning County 
where you switched from optical scan or where you count error 
under or over voting at that time?
    Mr. Sciortino. Chairman Ney, with our reporting under 
optical scan systems we were able to track over and under 
votes. Depending on what type of office or race you are 
targeting because you have drop-off in the ballot and for 
purposes of our discussions today we can just use the 
presidential election as the first office on the ballot. As you 
go down the ballot there is always drop-off.
    In other words, there are voters who consistently vote for 
the presidential ballot and as we get down to the local offices 
or the issues, I am not saying this is every time but there is 
a drop-off. In terms of percentages or statistics, I can tell 
you that our percentages for under votes, which I think are 
more critical, under-voting was an issue on the paper ballot 
    We did not have a precinct count optical scan system that 
is compliant under HAVA. We had a centralized count optical 
scan system which means the voter votes his or her ballot. It 
is placed in a box and it is counted later that night at the 
Board of Elections. Our under-vote percentages were higher, 
five or six percent.
    Under the DRE, as you know, you either vote on the 
particular race by submitting your choices or you don't. Under-
voting was significantly reduced by way of DRE to less than a 
percent. In fact, this past election it was even less. I don't 
have the actual percent but I could get it to you.
    I heard some numbers across the state and the panelist can 
comment if they know, but the amount of under-votes across the 
state on a punch card system was nearly 70,000 which is a very 
alarming number when you talk about the presidential election. 
The DREs certainly combated that problem and was one of the 
reasons why we moved from optical scan to DRE.
    Mr. Cunningham. Mr. Chairman, may I continue that 
    The Chairman. Mr. Cunningham.
    Mr. Cunningham. Our county has been running optical scan 
since 1995, the only county in the state. I think when we talk 
about optical scan we have to make sure we differentiate 
between precinct count and central count. Our situation on 
election day this year, I have about 45,000 ballots cast at the 
polls. There were only 73 over-votes recorded so I think 
precinct count optical scan probably is comparable to DREs in 
the numbers dealing with residual votes.
    The Chairman. I have a question about the DREs themselves 
because there was the Paper Trail Bill. I would also like to 
address the people in the country that felt prior to the 
election that the machines would be rigged and all the things 
that were said about machines being fixed, etc.
    Maryland moved to address some problems with DREs to have 
them checked in some random sampling. I am sure you are aware 
of the nonscrutiny that the machines in the casinos go under, 
so that they are not fixed, and people can win large sums 
amounting to millions of dollars. We have had that discussion.
    At the time that the bill was introduced, if we had went to 
a system that would have required immediately that every state 
would have to have the paper trail, it might have caused 
complete chaos in the country. There was no way that could have 
been implemented at that time. If that was going to be 
considered, it should have been the original Help America Vote 
Act. It is great to discuss and debate these things, but to 
have implemented it would have been a problem.
    However, nothing in HAVA says you couldn't have implemented 
it. Our state chose to have the paper trail. Putting aside the 
paper trail debate for a second, what security changes have 
been made to DREs? I have always argued that you can fix the 
machine to fix the paper trail. I am not a computer guru, but 
that should looked into.
    What about some random checks on DREs for states that 
implement a policy? The EAC can grapple with this. By the way, 
how you check these DREs for fraud? Does anyone have any 
thoughts on DREs or how to check for fraud?
    Mr. Vu. There is a lot of discussion revolving around the 
security of this and I think this goes to the heart of the DRE 
devices. One of the things that has been implemented, in fact, 
in California was parallel testing and I think that would be a 
wonderful effort in actually conducting for all states that 
move toward the DRE is doing parallel testing to be able to 
determine whether fraud is occurring or not.
    It does mitigate some of the issues that we have with the 
VVPAT standards or the VVPAT requirements as we have today but 
I think parallel testing is one of the items that we should be 
discussing and hasn't been discussed on a national level.
    Mr. Sciortino. Mr. Chairman, just to follow that up, prior 
to our election in Mahoning County we conducted a full 13-hour 
mock election day coordinated and monitored by our local League 
of Women Voters. They basically come in and pick any dozen 
machines off of the rack and conduct an election for 13 hours. 
It required volunteers. It required record keeping.
    That type of random auditing if made a proper procedure or 
necessary and routine as part of the Board of Elections in 
terms of opening up these machines and allowing for independent 
verification as to whether they have been accurately checked 
and are calibrated. Robust and random audits I think is key 
because you mentioned the voter verified paper trail.
    I think the rules changed after the implementation of the 
Help America Vote Act. I am not saying it is necessarily a bad 
thing. I understand where people are coming from when they say, 
``We need a verified paper trail.'' But at the other end, we 
have to allow them the opportunity to come in and learn more 
about the system. I think we do that maybe by parallel testing 
or some random audits, mock elections and to be a part of 
programming that to see how it is done.
    A lot of times people call these systems computers. They 
are not computers. Not in the sense that we use the terminology 
computer. They are more like a calculator. They are redundant 
systems of storing memory and that is basically it. But we have 
to open up our doors and sort of share that to get that message 
    The Chairman. Let us discuss provisional ballots for a 
second. There has been discussion on the percentage count of 
provisional ballots. Now, the implication is that jurisdictions 
of the higher percentage count are somehow to be commended 
while those with the lower percentage count are to be 
criticized. I wonder, is that fair? Does this effectively 
punish the jurisdictions that have a good registration list? If 
every eligible voter is already on the list the provisional 
ballot rejection rate would be 100 percent. Any comments on 
    Mr. Cunningham. Mr. Chairman, I believe those of us in the 
election business that do this every day are a little dismayed 
by the discussion that has been taking place the last couple of 
years because what is never discussed is the voter's 
    Ms. Millender-McDonald. The vote what?
    The Chairman. The voter's responsibility is to register in 
a timely fashion, to change their address with us when they 
move, and to keep their voter registration current. Now, if all 
of that is done, the voter has no problem whatsoever. We 
certainly try on an ongoing basis through our local meetings 
and so forth to put that word out. Particularly as we get close 
to elections.
    I don't think that the percentage of provisional votes 
counted is a reflection of board function. I think it is more 
of a reflection of voter function because boards were using the 
same criteria across the board to count provisional ballots. I 
believe in a county where there were probably a lower 
percentage of provisional ballots counted, it was more 
reflective that more unregistered people tried to vote in that 
county than what the board function reflected.
    Mr. Sciortino. Mr. Chairman, I think----
    Ms. Millender-McDonald. Mr. Cunningham, you are saying that 
provisional ballots and some of the inaccuracies that are being 
counted is left up to the voter. Am I understanding you on 
this? If I am not mistaken, you are putting all of the onerous 
on the voter as opposed to the local county elected officials 
having some type of education program that is ongoing because I 
don't know about Ohio, I haven't looked at your immigration 
percentages, but we have 87 languages spoken in California.
    In fact, more than that now. There are many who perhaps are 
not cognizant of this or are not readily aggressive enough to 
come forward and ask for this. I am not sure whether or not we 
should change which totally depends, if I am understanding you 
correctly, that provisional ballots or the lack of intelligence 
on how to move with that, should be left up totally to the 
    Mr. Cunningham. I think you misunderstood me with all due 
respect. Provisional ballot is voted because there is some 
anomaly in the voter's registration. I certainly would not even 
attempt to make you believe that is all the responsibility of 
the voter. Boards of Elections certainly do enter data 
incorrectly from time to time or make mistakes.
    But there is also a very large percentage of provisional 
ballots that could be avoided if voters were to--perhaps if we 
were to spend a little more time educating voters and voters 
would spend a little more time educating themselves.
    Ms. Millender-McDonald. Absolutely.
    Mr. Cunningham. My point was in the discussions over the 
last couple of years one thing that has been absent in all of 
the discussions has been any identification of voter 
responsibility in this equation. I am not advocating that in 
lieu of Board of Elections responsibility but I don't think we 
do ourselves any good. If we also in the course of holding 
Boards of Elections accountable and talking about what is 
required of them we are not doing ourselves any good. We also 
don't educate the voter better as to what is required of them.
    Ms. Millender-McDonald. I agree with you on that. Thank 
you, Mr. Chairman.
    Mr. Vu. Chairman, I think you were talking about the 
acceptance rate. That is one of the things that, as I stated in 
my testimony, the high percentage that Ohio had and Cuyahoga 
had relative to accepting the provisional ballots may be also 
on the reverse side of this that we were accepting it which is 
an outstanding aspect of our staff to be able to accept them.
    But it also may be an indicator as to what occurred on 
election day and what confusion there was regarding provisional 
ballots on election day. It goes back to some of the directives 
that we were sent prior to the election, the time frame between 
what we had to implement. The court decisions also, mind you, 
and some of the things that we had to institute. The poll 
workers had to be educated prior to the election.
    The Chairman. I want to ask an additional question about 
that. We will go to Mr. Anthony.
    Mr. Anthony. I am sorry. I thought you were going to ask 
the question first. You know, when it comes down to the whole 
provisional voting aspect of this, unlike my colleagues here I 
chair our Board of Elections. I don't do the day-to-day 
operations of it but I do know that in the past years prior to 
this election we had conducted our provisional voting 
differently. We had allowed folks to vote and then it was the 
bipartisan board's responsibility to take a look at those that 
were in question to see if they were actually voting in our 
county or not or if we could accept them.
    We had asked for some clarification on that because we had 
an inkling that things might change here in Ohio. As I said in 
my testimony, we had asked for clarification in August of 2004. 
We got no response back until September when the directive came 
    Ms. Millender-McDonald. Who were you supposed to get a 
response from?
    Mr. Anthony. From the Secretary of State's office.
    Ms. Millender-McDonald. That is what I thought.
    Mr. Anthony. That last minute maneuvering with all this 
stuff knowing good and well because I was also part of a law 
suit in my role as a party chairman against the Secretary of 
State for making that decision to make provisional voting only 
allowed in the precinct where our voter lives. I believe my 
colleagues also will tell you that is not quite the way we have 
done it in the past elections.
    Coming so close to the eve of election created the turmoil 
and the confusion, I believe, that a lot of folks had as to 
where they were supposed to vote. I believe in Franklin County 
how we ended up having such good numbers in our provisional 
voting, one, because we took a proactive position to actually 
do, and we paid for this itself with no HAVA money, to do 
advertising on public radio with my counterpart from the 
Republican party telling folks exactly how to register to vote, 
how important it is to register to vote, and also to get out 
and vote.
    Now, we did that. We found some money in our own budget and 
we paid for that. We believe that helped us to keep our numbers 
down somewhat. Then we took a proactive stance on mailing out 
information to all of our voters at a cost to our county. We 
did that because we knew that there would be problems with 
provisional voting.
    Not only did we do that but we also produced a Road and 
Atlas Guide that we put at every voting location so that if you 
came in there and you happened to be at the wrong polling 
location because there was a lot of confusion with the 
challengers and law suits flying, folks had no idea. It could 
have been a bigger mess. Those Road and Atlas Guides allowed 
our coworkers to at least tell folks where to go, which 
precinct they should go to based on where they live and based 
on their voter registration information.
    What I think ought to happen, and the Franklin County Board 
of Elections feels should happen, we should have a no-excuse 
absentee voting which is AKA early voting. I believe that 
should happen. I believe that we should go to early voting and 
I believe that the election day should either be a holiday or 
an employer should allow folks time to go vote.
    The Chairman. On the holiday week we talked about that 
during the Help America Vote Act. We couldn't ascertain whether 
we would be encouraging more voting or whether people would go 
on vacation. I am not saying it was good or bad, but we had a 
huge debate for days on that.
    Mr. Cunningham. Miller Lite would probably advocate the 
holiday. I have to take some exception here. I really hate to 
do it at my colleague's expense. My county has always counted 
provisional ballots in the home precinct. I believe law has 
always been very clear on that matter.
    Now, if there were questions and the Board wanted 
clarification, I understand that but I think Ohio law has 
always been very clear that a ballot must be cast in the 
precinct in which you live. Our county did nothing different in 
this election than we have ever done in regards to county 
provisional ballots.
    Ms. Millender-McDonald. Mr. Chairman, may I say that your 
law provides you the opportunity to only have persons fill out 
provisional ballots in the precinct by which they are 
registered. Am I correct on what you said, Mr. Cunningham?
    Mr. Cunningham. Heretofore in Ohio provisional ballots have 
been used by people who have moved since the voter registration 
or have failed to update the voter registration prior to the 
    Ms. Millender-McDonald. That is correct.
    Mr. Cunningham. We have always endeavored. In fact, we even 
have a transmittal slip that if you come into a precinct and 
you are not in the book, the first thing our poll workers have 
been instructed to do is call the Board of Elections to see if 
we can direct you to the correct precinct. We have a 
transmittal sheet that we use because usually the person comes 
into this precinct and they say, ``We are sorry. You are not 
    Ms. Millender-McDonald. And is this the practice that you 
did on this last election?
    Mr. Cunningham. Yes, ma'am.
    Ms. Millender-McDonald. So, therefore, you did not follow 
HAVA because HAVA said that you have the autonomy to give that 
provisional ballot to a person irrespective of whether they 
were inside of their precinct or not and then allow that ballot 
to be counted later.
    Mr. Cunningham. No. We were discussing there the 
traditional Ohio provisional ballot.
    Ms. Millender-McDonald. That is correct.
    Mr. Cunningham. We had HAVA ballots available as well and 
they would be issued if a voter insisted on voting. We tried as 
much as possible to direct a voter to the correct precinct and 
we always have done that.
    Ms. Millender-McDonald. When you say a HAVA ballot, what is 
    Mr. Cunningham. A HAVA provisional?
    Ms. Millender-McDonald. Yes. What is different than just a 
provisional ballot? Did you not just have provisional ballots 
irrespective of whether it was HAVA or not? Did you identify 
that as a HAVA ballot?
    Mr. Cunningham. Yes, we have basically in our county HAVA 
provisional ballots.
    Ms. Millender-McDonald. Because it was in conflict with 
their regular law? Is that the reason why?
    Mr. Cunningham. It didn't serve the same purpose. The 
traditional provisional ballot in Ohio is to accommodate a 
voter that has moved or their registration is incorrect. It is 
not to enfranchise----
    Ms. Millender-McDonald. This is what I am saying. That goes 
across the board, across the nation.
    Mr. Cunningham. Yes.
    Ms. Millender-McDonald. Irrespective of that with the HAVA 
    Mr. Cunningham. If we attempted to send you to the correct 
precinct and you insisted on voting in this precinct, we gave 
you a HAVA ballot. According to court order, you were also then 
given the affidavit saying you understood.
    The Chairman. I want to move on to one other question. I 
want my colleagues to be able to ask questions on some other 
issues. On the provisional voting, I think Mr. Anthony said 
that the rest of Ohio had provisional voting, but didn't have a 
provisional ballot necessarily within the law. Is this correct?
    Mr. Anthony. Yes, sir.
    The Chairman. One of the issues we had with the Help 
America Vote Act was this: people from different parts of the 
country would come to me and say, that they were turned away 
from the polls because of race. They were turned away from the 
polls because of some condition, or they were turned away from 
the polls because of their political party. Now, in some cases 
that might be genuine. We won't say it hasn't happened.
    In some cases it may not have happened, but the idea of 
provisional voting, is so important. I discussed this with Mr. 
Hoyer, our colleagues, civil rights groups, and members both 
sides of the isle. Provisional voting means that you are not 
turned away from the polls.
    Now, in Ohio, I know there are cases where somebody walked 
in, and I know some of the people this has happened to, and 
said, ``I want to vote.'' Somebody without malice said, ``You 
are not on our polls.'' They then walked out and said, ``I 
wasn't given a chance to vote.'' They felt disenfranchised for 
whatever reason.
    So provisional voting, and, in a way, the Help America Vote 
Act, codified the existing rules on provisional balloting in 
Ohio, and made it clear that you have to give them a ballot. 
Now, I know that local boards, all of you, Democrat and 
Republican, are smart enough to say, ``By the way, it looks 
like you are not registered in Belmore County anymore. You are 
now in Monroe County.'' But that person insists, ``I still want 
that ballot.'' ``You take it.'' The Help America Vote Act says 
you accept it no matter what.
    Now, counting it is a different story. Counting it is left 
to local state law. The idea in the provisional voting was that 
it would guarantee the right to cast a provisional ballot. I 
just wanted to clarify that about provisional voting.
    Let me go to my last question and then move on to my 
colleagues. The long lines. Mr. Vu, I think you mentioned in 
your testimony that the longest recorded wait time was two and 
a half hours. It took place in the suburbs. We have heard 
people claiming 10 hours. I respectfully quoted you to the U.S. 
House because I was managing the electoral college on the House 
side for the majority party with Mr. Larson, who was also 
managing the House side. I quoted about the lines with regards 
to the machines, where machines were placed, or were not 
placed, in certain minority precincts.
    I didn't quote either one of you because I didn't have 
enough evidence. That is not putting anybody on the spot. I am 
just saying that he addressed the long lines. Anything to add 
on the long lines? The second question I guess I want to ask 
you is, do you think we, the Federal Government, should cure 
your long-line problem if you have one? Those are the two 
questions I have.
    Mr. Anthony. There were long lines in Franklin County. As I 
said in my testimony, they were in all of Franklin County. The 
problem we had in Franklin County was that we did not have 
enough machines. I know there were folks out there that claim 
we purposely took machines out of black areas and moved them 
into white areas as a way to somehow suppress the black vote.
    If that was our intention, it certainly didn't work in 
Franklin County because there were 50,000 votes and most of the 
votes came from the core city. What happened was purely 
numbers. We did not have enough machines. We had an increase in 
voter registration and we count all of our 847,000 votes as 
active voters and we allocate machines purely number wise the 
best that we could based on the 2000 election and the turnout 
in the 2000 election. There were population shifts and there 
were areas that grew more than other areas. We at least tried 
to have two machines for each precinct and the long lines 
happened. On election day all heck broke loose.
    Mr. Chairman, we don't have a large staff but our first 
order of business on election day is to make sure that those 
machines that are out in the voting area are working and that 
folks can vote. That took pretty much the better part of the 
day for us. After that we started taking a look at our limited 
resources of our employees and trying to get machines out to 
areas that needed them.
    We did the best we could. Our whole intent on election day 
was to have brand new machines by 2003. That didn't happen 
because we had House Bill 262 kick in on us and it placed a 
whole new requirement on the types of machines that we could 
    Also, we could not lease additional machines because the 
machines we have were, I think, Danier. We don't have machines 
just sitting out there waiting to be leased. Plus, we couldn't 
have bought more machines even after we knew that this House 
Bill 262 and some of the other HAVA requirements. Danier was 
not on the approved list of vendors that Secretary of State had 
previously approved so even if we could have bought some more, 
they weren't on the list.
    Not only were they not on the list, but our machines didn't 
meet the HAVA standards and certainly not the House Bill 262 
standard. We were between a rock and a hard spot which is why 
we are trying to get clarification on provisional voting and 
why we did all the other steps that we did to try to at least 
make the process go a lot faster. What would help us currently, 
I mean, right now we have an injunction on the Secretary of 
State not to force us to use scan machines here in Franklin 
    We feel that the long-range cost of those machines far 
outweighs the benefit of them. We would like to continue with 
our DREs and go to the next generation of DREs. Our hands are 
tied right now because we have House Bill 262 and also some of 
the HAVA requirements. And we are between a rock and a hard 
spot because those regulations we have to comply by them by the 
2006 election.
    Any help you could give us and maybe some help in some 
machines we could take a look at and those that we think would 
fit better in Franklin County. We just don't believe the scan 
machines will work in a large county such as ours. That is what 
we could use some help on, to slow it down or some regulation 
so that we could come into compliance and still take care of 
our voters.
    Mr. Cunningham. Boards of Elections historically handle 
turnouts anywhere from 13 to 40 percent the other three years 
of the cycle. We sort of toiled in obscurity those three years 
and everybody pays attention in a presidential year.
    Boards of Elections are funded and staffed by in large by 
what their turnout normally is. I really don't know why it 
would surprise anybody that when suddenly the turnout spikes to 
the largest in the history of the country that the lines would 
be longer.
    Now, the other thing that plays into this is when these 
equipment allocations are made it is usually before the 
registration deadline. If you have allocated equipment to a 
precinct and all of a sudden at the very last minute, this goes 
to the issue we talked about today, 600 or 700 new 
registrations get dropped on you in that precinct 30 days out, 
there is not much you can do to adjust. You just have to try 
and manage that as best you can.
    We probably will not see more than a 15 to 20 percent 
turnout on May 3rd in Ohio and the line problem suddenly won't 
be there. Either we have to equip and adjust to 70 plus percent 
turnouts which I think probably would be wasteful in the long 
run to our county governments or we have to just figure out a 
way to flex on the big years and understand that there is 
probably going to be a little--I think every Board of Elections 
in the state prior to election day was telling people in their 
community, ``Be prepared to spend a little more time voting 
this year. We just expect a higher turnout.''
    The Chairman. I am going to move on. Mr. Vu.
    Mr. Vu. I just wanted to respond to your questions about 
Cuyahoga County specifically. Long lines occurred in urban and 
suburban precincts. Unlike Frankly County where there were not 
enough resources we had enough resources. We had 10,000 voting 
devices. Almost approximately nearly 10,000 voting devices.
    There was a study and analysis that was done by the paper 
The Plain Dealer, where they assessed what our resources were 
and also where we distributed those voting devices. We did it 
across the board and we had one device for every approximately 
115 registered voters. I think that was a really good number to 
use for it.
    What we learned, though, is two things. Again, as I stated 
in my testimony, we saw voting behaviors as well as poll worker 
issues that we didn't expect. One of those voting behavior 
issues is that we had three precincts at a location, as the 
Congresswoman had stated earlier, where we might have three or 
four precincts in a polling location. When a voter sees a line, 
they will go to that line as opposed to going and finding their 
    Some of the actual experiences from talking with voters on 
election day that I heard was that they had waited in line for 
an hour to find out that they were in the wrong line. Also on 
election day we found out that our poll workers, in some cases, 
and I visited some of these polling locations and precincts on 
election day, were confused as to the provisional voting 
portion of it and all the other extraneous part of the election 
that were coming last minute. Things like challenges. Things 
like pre-challenges prior to election day so there were a lot 
of things revolving in and around that area.
    What The Plain Dealer article found out is that our 
allocations of our voting devices was evenly across the board 
between suburbs and urban precincts. One of the things that we 
also found out is that poll workers didn't utilize all of their 
voting devices on election day and that is something that can 
be easily remedied for future elections. That is a concern, as 
far as your question, and concern about funding level as Mr. 
Cunningham approached you.
    We are not funded at 100 percent capacity for every 
election. That is due, in part, because of the nature of the 
way we conduct elections and the four-year cycles that we have. 
If we were going to do it, and which I advise as we move toward 
election time, that local Boards of Elections get funded not 
only for devices and equipment, but also for public education 
efforts also.
    The Chairman. It was an unusual election. I am not saying 
that we should criticize all these people who turned out at the 
polls. They die to vote in Iraq and Afghanistan. Real quick, 
yes or no, because I do want to move on to my colleagues. Do 
you believe that a federal commission, say the EAC, or the U.S. 
Congress, should set how many machines you have, or should it 
be done within the state or the current process here?
    We will start with Mr. Cunningham.
    Mr. Cunningham. If you want to do it efficiently, you 
should leave it to the local jurisdiction.
    Mr. Sciortino. As a member of the standards board and the 
EAC I think there is a debate with the state's rights versus 
the federal sovereignty and I think it needs to be left to the 
states to come up with that.
    Mr. Vu. I would say it needs to be left for each local 
Board of Elections to determine that number.
    Mr. Anthony. I would say each level of jurisdiction should 
have that responsibility.
    The Chairman. Thank you.
    The gentlelady from California.
    Ms. Millender-McDonald. Thank you so much, Mr. Chairman, 
and thank you all. You are very professional men and you are 
very honorable. In fact, it brings me to the point that there 
are all honorable men and worthy women here anyway testifying 
from this great state of Ohio.
    I am going to start with Mr. Cunningham. Mr. Cunningham, 
you did mention that you believe that Ohio should adopt a no-
excuse absentee voting because partially it would solve the 
long lines. I couldn't agree with you more so if you would get 
with your representative, Mr. DeWine, who is presenting this HB 
House Bill 3. He is in a quandary as to whether or not that 
should be part of that bill so maybe you can help him by 
telling him that this is something that you at the local level 
deem important for him to have in his field.
    Mr. Cunningham. The association has presented that 
    Ms. Millender-McDonald. Very good. Secondly, and I am happy 
that you are open to that, I hope you are also open to same-day 
voting as well as some of the variations of voting that are now 
beginning to take place.
    Mr. Cunningham. I heard you mention it earlier. I am not 
sure what you mean by same-day voting. Do you mean same-day 
    Ms. Millender-McDonald. That is right, registration.
    Mr. Cunningham. I would be adamantly opposed to same-day 
    Ms. Millender-McDonald. And why is that?
    Mr. Cunningham. It is a recipe for fraud. I am sorry. That 
is not a workable solution.
    Ms. Millender-McDonald. Even with electronic devices now 
and high technology that can be verified?
    Mr. Cunningham. There are only three states that use it. 
That is probably the reason why. I don't think that is a good 
idea in a practical application.
    Ms. Millender-McDonald. You mentioned also in your 
statement that you believe that persons, advocacy groups who 
solicit registration forms should be required to turn in all 
registration forms and not just those that are endemic to their 
cause. That is against the law if they don't. That is really 
against the law.
    Mr. Cunningham. Provided that you know.
    Ms. Millender-McDonald. They are supposed to do that and if 
there is anyone who is doing that practice, we should know 
about that. Nobody is supposed to withhold any registration 
forms irrespective of whether it is in opposition to what you 
think or not. And given that provisional ballots can and do 
enfranchise voters and so I do believe in that irrespective.
    The other thing that you mentioned that Congress and our 
chairman is absolutely calling for immediate and full funding 
of HAVA. That is really a position of all members of Congress, 
not only those of us who are on this committee. Congress really 
does have a deep commitment to the principles set forth in HAVA 
and, thereby, should fund that. You know that we have a war and 
the President is calling for some $80 some billion. We, too, 
have to be cognizant of our fiscal constraints and all states 
will have to as well because of the various amounts of money 
that is being taken off for other reasons.
    The last thing that I would like to ask you, Mr. 
Cunningham, is that were you giving active funding from the 
state to carry out the mandates on HAVA? Did you get that 
funding in time? Secondarily, were the last-minute directives 
from the Secretary of State in conflict with Ohio's law as it 
has been outlined by Mr. Anthony many times, the House Bill 
    Mr. Cunningham. The first part of the question is the 
funding? Did I receive enough funding?
    Ms. Millender-McDonald. Yes.
    Mr. Cunningham. Well, there is never enough money.
    Ms. Millender-McDonald. Exactly.
    Mr. Cunningham. There is never enough money. I am not going 
to take issue with the Secretary of State on that matter. Could 
we have used more? Of course you can always use more.
    Ms. Millender-McDonald. And I don't intend for you to do 
that. I am not putting you in that position but was there a 
    Mr. Cunningham. Yes. I believe the formula was evenhanded 
across the state. I don't think that I got any less than 
anybody else.
    Ms. Millender-McDonald. Was it in adequate time?
    Mr. Cunningham. I don't have any complaints with the time 
frame. I think it flowed to us. Quite honestly, the last minute 
directives were only a part of the confusion. There were a lot 
of confusing things going on before the election leading right 
up to it.
    Ms. Millender-McDonald. They were not the last-minute 
directives solely.
    Mr. Cunningham. Absolutely not.
    Ms. Millender-McDonald. There were other things.
    Mr. Cunningham. Political activists were very involved. We 
have never had attorneys in our office. We have never had 
activists in our office. I mean, they were quite honestly very 
disruptive, very distracting. This is probably the single 
most--I am pushing my 8th year and the November 2004 election 
was probably the single most difficult thing I have ever tried 
to manage in my life.
    Ms. Millender-McDonald. They were not supposed to be 
disruptive. Or were they?
    Mr. Cunningham. Well, for instance, the card we send out to 
voters to tell them where they are registered, what your 
precinct is, I spent the better part of an afternoon arguing 
with somebody that the type on the card was too small when it 
is the same card we have been sending out for some time. It is 
the default setting of the printer. My belief, ma'am, is that 
not everyone in November of 2004 was dealing in good faith. 
There were people on the ground and present in Ohio----
    Ms. Millender-McDonald. Not everyone in 1870 was dealing in 
good faith. I mean, you never have everybody dealing in good 
faith no matter what year it is.
    Mr. Cunningham. I am confident my colleagues were dealing 
in good faith. There were people that were tempting to create 
chaos and confusion in hopes that out of it would come 
something that could be exploited.
    Ms. Millender-McDonald. That is unfortunate.
    Mr. Cunningham. I would probably say to you that I think 
the four people at this table, and we are outnumbered, by the 
way. Our association has far more women than it does men.
    Ms. Millender-McDonald. Thank you very much.
    Mr. Cunningham. I think it is absolutely stunning that the 
election officials in Ohio pulled the election off in the 
fashion that they did, managed it the way that they did, and 
succeeded as they did in light of the absolute chaos and 
confusion that was taking place.
    Ms. Millender-McDonald. The confusion did not come from 
anyone particular group. Am I correct?
    Mr. Cunningham. No, ma'am.
    Ms. Millender-McDonald. They were on both sides of the 
political spectrum?
    Mr. Cunningham. It is everybody. Yes, ma'am.
    Ms. Millender-McDonald. Okay. Fine.
    Mr. Cunningham. I am not taking any issue with one group or 
other group.
    Ms. Millender-McDonald. Mr. Sciortino, first of all, you 
should tell your state representatives that Ohio was the swing 
state. Thereby, this was the reason that all eyes were on Ohio. 
Please tell that to your state reps that were here earlier, 
especially Senator Jacobson?
    Mr. Sciortino. I have told him that personally but I will 
do it again.
    Ms. Millender-McDonald. Sometimes the second time. It is by 
rote. You have to constantly remind people. You also said that 
there were two and a half weeks leading up to the election. 
There were changes in directives and other things, last minute 
directives and that type of thing. Also Mr. Blackwell provided 
daily telephone conversations to you guys.
    Did you not have his total input for the two-and-a-half 
weeks? Did you have a statewide or how wide spread was your 
campaign election education so that you would have been able to 
have some intelligence on a lot of things that perhaps could go 
wrong or just the mere fact of educating the masses on what to 
    Mr. Sciortino. Leading up to the election, again, it was my 
job as president of our association to try and conceptualize 
all the issues that were facing the association. Again, as time 
progressed it is not as though we knew what was going to happen 
next because this was not a regular election year. There were 
issues about some late directives but that wasn't the 
impounding reason.
    Ms. Millender-McDonald. But given that your state was the 
swing state, did you not recognize that you were going to have 
an abundance of new registers?
    Mr. Sciortino. Sure, and that is where we had dialogue 
between the county boards, ourselves. There was some litigation 
popping up over provisional voting and what not. We met with 
the Secretary and asked the Secretary for additional resources 
in terms of improving communication.
    Ms. Millender-McDonald. Was it given to you?
    Mr. Sciortino. The output of that was this daily----
    Ms. Millender-McDonald. Was that given to you, the funding 
for more outreach and education?
    Mr. Sciortino. Not specifically to each county but the 
daily telephone conferencing with regards to how on a daily 
basis boards can better handle these election issues.
    Ms. Millender-McDonald. But that was only two and a half 
weeks out. We are talking about really months to get this thing 
    Mr. Sciortino. In all honesty, I don't think a lot of the 
major issues hit until September, October. I was more worried 
about administrative issues, you know, handling questions from 
these lawyers that come in. Then as questions started to come 
in to our boards, I was getting other questions from other 
Boards of Elections. Let us try and communicate better. That 
was our biggest goal.
    Ms. Millender-McDonald. Those administrative questions 
should have been answered by you. How about poll workers? Were 
they trained adequately?
    Mr. Sciortino. I can only speak for Mahoning County and I 
am sure across the state at least a month out we began training 
poll workers the presidential year. As well as in the primary 
every poll worker was trained as well as our auxiliary poll 
    Ms. Millender-McDonald. It should be more than one month. 
Although you are not part of the Secretary's state association 
but it should have been ongoing really for at least a year out. 
We recognize that this was a presidential year. You being the 
president of the Ohio Association of Elected Officials 
certainly you would have, and I would like to think, that you 
would have been able to discern early on that this was going to 
be that rash of registrants and provisional ballot requests and 
you would have been able to educate people much earlier than a 
month or two.
    Mr. Sciortino. Well, are we talking about the voters 
themselves or poll workers?
    Ms. Millender-McDonald. Poll workers so that they will 
then, in turn, speak to various voters. A lot of the lines 
could have been circumvented it seems to me if poll workers 
were more educated to some of the things that would happen and 
they would direct them to the various precincts within the 
areas they were supposed to go to.
    Mr. Sciortino. Well, two things. We do training following 
state guidelines in terms of poll worker training and what not. 
I tend to do it 30 days out because any sooner than that you 
run into whether or not retention in terms of what they have 
learned is going to carry over into election day. I think that 
is what we do in our county. I think that is pretty consistent 
across the state. The other thing is there are financial 
burdens because we pay our poll workers to come to training.
    Ms. Millender-McDonald. Are you suggesting that House Bill 
262 is in conflict with HAVA?
    Mr. Sciortino. How is that?
    Ms. Millender-McDonald. In that it seems that all of the 
law that you follow tends to be the Ohio state law and not the 
integration of HAVA with that law or the HAVA law as opposed to 
the Ohio law.
    Mr. Sciortino. Well, we made every attempt to, and I think 
we have, train in terms of poll workers train on the new 
provisions contained in HAVA absolutely. I don't know, you 
know, what specific portion of House Bill 262 gave additional 
resources for the county to pull upon other poll workers. 
Obviously the voter verified paper trail issue comes into play 
with 262. Our colleagues, every Board of Elections tried to 
have every new training source available to bring HAVA into 
    Ms. Millender-McDonald. Mr. Vu, speak about poll worker 
training and HAVA is very strong on that. Does that House Bill 
that we keep hearing about and that Mr. Anthony spoke about 
many times, 262, does it talk about poll worker training?
    Mr. Vu. House Bill 262 outlines voter education and the 
allocation of $2.5 million, actually $5 million, 2.5 going to 
the Secretary of State to educate the entire state and then the 
other 2.5 allocated on a formula basis to all the various 
counties with a minimum of $5,000. Then this past election we 
did not receive any of that $2.5 million. None of those monies 
were appropriated to any local Board of Elections that I am 
aware of. I am sure that occurred.
    Ms. Millender-McDonald. And, yet, that is an Ohio law that 
you were supposed to get $2.5.
    Mr. Vu. That is correct, for local Boards of Elections.
    Ms. Millender-McDonald. Local boards.
    Mr. Vu. Let me, if I may, describe some of the training 
efforts that we did. Of course, we can always do better with 
our poll workers. As you probably know, poll workers are 
citizens like you and I. On election day they serve as election 
officials for a 13-hour time frame. There are some retention 
issues that we have.
    In this past election we had training that occurred during 
the primary election and also the general election. The primary 
election occurred in March and the general, of course, in 
November. During the general election we overhauled our poll 
worker manual and instituted a highlight page because many poll 
workers have done this for years.
    In fact, in once instance we actually gave a resolution to 
one of our poll workers because they had done it for 50 years. 
As you probably can tell, they go to a poll worker training 
year in and year out. One of the complaints that we hear is, 
``It is the same stuff. Why should we go?'' We institute 
different things to kind of change the format, especially this 
    Ms. Millender-McDonald. You need to tell them that they 
have to go.
    Mr. Vu. We did. It is a requirement for Cuyahoga County for 
them to attend, although they had by statute met their 
obligations for primary election training. Of course, we wanted 
them for the November election to have training for our poll 
workers. The reason why is because there are so many different 
things that they had to be aware of like chads.
    Also things like various directives that had occurred. By 
the time that we were able to train our coworkers was almost 
after the fact of when we started receiving the directives. For 
Cuyahoga County we have to recruit 6,000 poll workers for 
election day, plus 500 as a reserve for election day. This 
becomes a mass last-minute education effort on election day to 
send out all this information and on election day we actually 
were sending out more information for poll workers. You could 
just imagine----
    Ms. Millender-McDonald. Election day is too late to be 
sending out any information about what one should be doing, for 
Heaven's sake.
    Mr. Vu. That is what we were told.
    Ms. Millender-McDonald. No wonder these people were so 
flustered because you are sending out these directives. The 
registration cards that you mentioned in your statement which 
were missing some vital information but you did not receive 
directions in this matter or directions from the Secretary of 
    Mr. Vu. That is correct. I believe the reason why is 
because there is nothing within state statute that talks about 
incomplete registration cards. One of the things, the National 
Voter Registration Act, that was passed in 1993 essentially did 
was erred on the side of the voter and that is the way we have 
proceeded once we did not receive any indication from the 
    Ms. Millender-McDonald. The best practice tool kit that was 
put out by EAC, did any of you follow that leading up to the 
election given that they have the best practices for many 
states that have proven to be very useful?
    Mr. Vu. Yes. I did look at the best practice guidelines. I 
actually did. There are a couple of check-off lists that I used 
as well as the Cuyahoga County Board of Elections used. In 
fact, what I did was used that but also coupled it with the 
election center checklist that they had and also what was 
unique for Cuyahoga County. So I essentially created a separate 
template of best practices for Cuyahoga County.
    Ms. Millender-McDonald. Before I get to Mr. Anthony for the 
last questioning, Knox County. Who takes care of Knox County? 
Any of you?
    The Chairman. That is me.
    Ms. Millender-McDonald. I was told that there were many, 
Mr. Chairman, students who went to a neighboring school that 
had to wait until 4:00 a.m. in the morning to vote.
    If that is not a 10-hour plus time span given the fact that 
voting starts at 7:00, 8:00, and that they were in line at a 
reasonable time and had to wait up through 4:00 a.m. the next 
morning, my goodness. What in the world are we going to do to 
circumvent that from happening again with this younger 
population who we are trying to get to buy into the political 
process? Mr. Cunningham.
    Mr. Cunningham. First, I think it should be noted that was 
one precinct in thousands in the state of Ohio.
    Ms. Millender-McDonald. Anytime one voter is 
disenfranchised or has to stand in line that long, it is as if 
everyone throughout this country.
    Mr. Cunningham. I do not run Knox County. My understand----
    Ms. Millender-McDonald. I am sorry?
    Mr. Cunningham. I said I don't really have anything to do 
with Knox County or run it but my understanding through the 
association is that some of that issue is attributable to what 
we have been talking about where literally thousands of 
registrations were dropped on the Board of Elections at the 
registration deadline and they were simply overwhelmed and 
unable to compensate for that many people, that many new 
registrations in that precinct. I am not saying that is totally 
the reason but in part the tremendous number of new 
registrations in that precinct played a role in the length of 
those lines.
    Ms. Millender-McDonald. Mr. Anthony, will you clarify for 
me what you mean by saying, and I put this in quotes because I 
am trying to say it verbatim, ``Provisional ballot voting is 
not like we used to do or accustomed to doing. You know there 
would be problems with provisional ballots.'' Can you kind of 
explain what you are talking about here?
    Mr. Anthony. Mr. Chairman, Madam Committee Member, I have 
been on the Board of Elections, I believe, this is my 7th year. 
The way we have always done our provisional balloting or voting 
in Franklin County is that we always try to err on the side of 
the voting. We feel if a person took the time to come out and 
go vote, that we should do what we can to make sure that 
person's ballot is counted.
    In the past what we have done in Franklin County is if a 
provisional vote comes before us, before the Board of 
Elections, the staff takes a look at it and makes sure that 
they are a registered voter, that they live in the precinct, 
and they basically qualify. Those folks' vote would be counted.
    The ones where we had concerns about, they would bring them 
before the bipartisan board, two Democrats and two Republicans, 
and we would take a look at those and then they would tell us 
what their concerns were. We would make every effort to either 
allow that person to vote, what items they could vote on that 
ballot if they are voting out of precinct. There may be some 
local options or maybe a split----
    Ms. Millender-McDonald. Right.
    Mr. Anthony. What we would do then is we would allow that. 
If they were a qualified voter, then we would accept that vote. 
It would be done by bipartisan. All four of us would have to 
agree to it.
    Ms. Millender-McDonald. And that qualified voter would be 
    Mr. Anthony. They would be in our voter file.
    Ms. Millender-McDonald. Irrespective of whether they were 
in the precinct by which that provisional----
    Mr. Anthony. That is correct. If they were on our voter 
rolls as a registered voter.
    Ms. Millender-McDonald. Okay. So provisional ballots were 
distributed rather fairly across the counties irrespective of 
whether those voters were actually voters in that precinct?
    Mr. Anthony. What we did was we allowed--anybody that 
wanted to vote could vote and I think that is the clear 
distinction. Congressman Ney said it real clearly there that we 
instructed out poll workers if they come in there, you let them 
vote. You don't sit there and argue. You let them vote. Give 
them their right to vote. We in the past figured that stuff out 
at a board meeting. That is where it was figured out.
    Ms. Millender-McDonald. Also, Mr. Anthony, you said that 
there were increased voter registration and you did not have 
either the machines to fulfill the voters' wishes to vote. Am I 
correct in that assessment of what I think you said?
    Mr. Anthony. Mr. Chairman, Madam Congressperson, that is 
    Ms. Millender-McDonald. And, yet, Mr. Vu said that there 
were 10,000 election devices. Would that not have been--could 
that not have been some devices used to help this gentleman in 
his county or what were you saying?
    Mr. Anthony. Mr. Chairman, Madam Congressperson, we use two 
different voting systems. He uses a punch card system. We use a 
DRE type system in Franklin County so there is no way we could 
have shared equipment and there was no way that I could have 
acquired additional equipment because of the reasons I stated 
earlier which were:
    1. They would not have met the HAVA requirements; 2. They 
wouldn't have met the Senate Bill 262 requirement; 3. They 
wouldn't have met the requirements on the Secretary of State's 
preferred vendor's list; 4. There would have been maybe some 
compatibility issues with our current system by bringing in new 
Danier machines. They were Danier machines that we had. Because 
of all of that it became totally not prudent for us to even try 
to pursue this.
    Ms. Millender-McDonald. It was very honorable of you to 30 
days out map outline differences of precincts as you outlined 
here where people should go to vote. It was three weeks, you 
say, from this information. Yet, you put out these cards to 
folks to let them know where they were supposed to go. Am I 
correct on what you said there?
    Mr. Anthony. Yes, ma'am. It is two different things there. 
We had found out that a lot of groups had gotten the voter 
registration information from the Secretary of State's office. 
That information is probably six months old so it is not real 
current information. We provide the information to the 
Secretary of State's office. Then what happened----
    Ms. Millender-McDonald. Are you saying information from the 
Secretary of State's office is old?
    Mr. Anthony. It is six months beyond ours. We give to him 
and then we----
    Ms. Millender-McDonald. How can that be?
    Mr. Anthony. All that is getting ready to change now with 
the new voter registration system. During this time frame----
    Ms. Millender-McDonald. That is awful.
    Mr. Anthony. What happened was a lot of those groups 
purchased those lists from the Secretary of States and had the 
wrong precinct on them. That information was sent out to voters 
telling them where to go vote. There were phone calls out to 
some voters to tell them where to go vote and it was not the 
correct information. We took it upon ourselves that we should 
do that.
    Ms. Millender-McDonald. So your Secretary of State was 
blaming you guys for this information.
    Mr. Anthony. The other part of this, too, if you have got--
these guys probably know this.
    Ms. Millender-McDonald. You can just answer yes or no on 
    Mr. Anthony. Yes. What happened is we are taking in voter 
registration forms on a daily basis so our stuff is up to date. 
Our information is up to date. We transmitted to the Secretary 
of State's office. I am not sure how that process works.
    Ms. Millender-McDonald. Obviously they are not checking it 
or even implementing it if it is six months late for Heaven's 
    Mr. Anthony. At any rate----
    Ms. Millender-McDonald. You don't have to answer that. You 
have already done that by your silence.
    Mr. Chairman, thank you so much. After Ms. Tubbs-Jones we 
would like to introduce you to what you have told us what would 
be some of the things that we can improve HAVA after the 
gentlelady speaks.
    The Chairman. Just for the record, Knox County is a 
wonderful county that I represent.
    Ms. Millender-McDonald. I think it is because it sent you 
to Congress. That is correct.
    Ms. Tubbs-Jones. Mr. Chairman and Ranking Member, gentlemen 
thank you very much for coming this afternoon. I am sitting on 
this Committee by opportunity of the Chairman and the Ranking 
Member so I don't get as much time as they do in asking 
questions or getting answers so I would appreciate if you could 
to restrict your answers specifically to my question. 
Otherwise, I will run out of time and not get to ask all the 
questions I would like. I, again, would like to thank all of 
you for coming.
    Let me start with Mr. Cunningham. Mr. Cunningham, how many 
people vote in Allen County?
    Mr. Cunningham. Total registration of 67,000. Turnout is 50 
some thousand depending on the election.
    Ms. Tubbs-Jones. Mr. Sciortino.
    Mr. Sciortino. Yes.
    Ms. Tubbs-Jones. How many people vote in New York County?
    Mr. Sciortino. We have about 190,000 registered voters. 
Roughly close to 70 percent turn out.
    Ms. Tubbs-Jones. Mr. Vu, Mr. Anthony, I know the answer to 
that question for both of you. I spend a lot of time in both 
your counties.
    Mr. Cunningham, in the conversations that we have been 
having about absentee balloting and all those other things. One 
of the things that I want to assure and all of us want to 
assure is that every vote counts. In some communities that 
means different things for different people. How many workers 
do you have on election day? Pollers?
    Mr. Cunningham. Approximately 600.
    Ms. Tubbs-Jones. Approximately 600.
    Mr. Cunningham. Right.
    Ms. Tubbs-Jones. How many do you have, Mr. Vu?
    Mr. Vu. 6,000 plus.
    Ms. Tubbs-Jones. 6,000. It is a lot easier to manage 600 
than 6,000.
    Mr. Cunningham. I have a staff of five and he has a staff 
of 70 or 80.
    Ms. Tubbs-Jones. Regardless of that, sir, but it is a lot 
easier to manage 600 people than it is 6,000.
    Mr. Cunningham. I would say it is all relative, ma'am.
    Ms. Tubbs-Jones. Okay. Well, I see I am not going to get an 
answer out of you on that one, Mr. Cunningham. Let me go 
forward to something else and say to you one of the things that 
is important and we are looking at, all of us recognize that 
poll workers often will say, and I heard Mr. Vu say this, that, 
``I've been working at a polling place for 20 years.'' ``I've 
been working here 15 years.'' ``I've been doing this all my 
life and no matter what the mandate says, I am going to do it 
like this anyway.''
    Not just elections but anywhere. Pretty fair statement. 
Conceptually it is almost like being in management. People say 
management is like oil and water. The directors are the oil 
floating on top of the water and the people are at the bottom. 
The oil doesn't stay at the bottom of the glass. The directors 
stay on top. You are familiar with what I am talking about as a 
    What I am trying to get to is that conceptually all of us 
could have done all the things we need to do on election day to 
assure a perfect election but a poll worker could have said, 
``The hell with them. I am not going to do it like that. I've 
been doing this all my life and I am going to keep doing it.''
    Which meant that they control how many machines were put 
up, how fast the people made it through the process, whether or 
not they were given a provisional ballot, all of those other 
things. This is not degradation to poll workers because I love 
poll workers. I am an elected official and I love poll workers.
    Without them we wouldn't have a process. Conceptually those 
are the kind of things that you can't control as a manager or 
on election day. I will go on to my next question even though 
that might have been a statement which is what we do in 
Congress occasionally.
    How much money, Mr. Cunningham, did you receive for voter 
education in Allen County?
    Mr. Cunningham. None.
    Ms. Tubbs-Jones. How much money did you get, Mr. Sciortino, 
for voter education in your county?
    Mr. Sciortino. I didn't get any.
    Ms. Tubbs-Jones. Mr. Vu, how much money did you get for 
voter education in your county?
    Mr. Vu. None.
    Ms. Tubbs-Jones. Mr. Franklin--Mr. Franklin, I am sorry. 
Mr. Anthony, how much money did you get in your county for 
voter education?
    Mr. Anthony. We got zero from the state but we have 200,000 
from our own internal funds.
    Ms. Tubbs-Jones. You got none from the Secretary of State 
or any state organization?
    Mr. Anthony. That is correct.
    Ms. Tubbs-Jones. And you are all aware that the Secretary 
of State received money from voter education from HAVA. Are you 
not, Mr. Cunningham?
    Mr. Cunningham. Yes.
    Ms. Tubbs-Jones. Wouldn't it have helped you in this 
process had you received any money for voter education?
    Mr. Cunningham. Obviously, yes, ma'am.
    Ms. Tubbs-Jones. And it might have cured some of the issues 
that were floating around throughout this election had you 
received any of that money. Correct? Another interesting thing 
for me is HAVA requires the Secretary of State to come up with 
a plan to meet the HAVA requirements. Are you aware of that? 
Are all of you aware of that? Have any of you been brought into 
a meeting by the Secretary of State to help put together a plan 
for Ohio?
    Mr. Cunningham. No.
    Ms. Tubbs-Jones. Have you been asked?
    Mr. Cunningham. No.
    Ms. Tubbs-Jones. Have you been asked?
    Mr. Sciortino. No.
    Mr. Vu. No.
    Ms. Tubbs-Jones. Have you been asked?
    Mr. Anthony. No, ma'am.
    Ms. Tubbs-Jones. And you are the people where the rubber 
meets the road. Is that correct, sir? Gentlemen?
    Mr. Cunningham. Yes.
    Ms. Tubbs-Jones. It would have made sense for you to have 
been brought to the table for party create in Ohio. Don't you 
think so, sir?
    Mr. Sciortino. Yes.
    Mr. Vu. Yes.
    Mr. Anthony. Yes, ma'am.
    Ms. Tubbs-Jones. Mr. Chairman, I know my time is up. 
Gentlemen, I thank you for the opportunity to speak with you 
this afternoon. I look forward to future opportunities. Please 
let me hear from Cuyahoga County. I take an oath to represent 
all the people. I welcome your comments about elections and I 
look forward to helping you in the future. Thank you very much.
    The Chairman. To the panel, just real quick, a question to 
Mr. Cunningham. You talked about a requirement that groups 
submit all registrations they gather, not just for the 
candidate they favor. Did you hear of groups starting 
    Mr. Cunningham. I don't have any empirical data that would 
stand up in a court of law or anything like that but it has 
been pretty well rumored and talked about that it did take 
    The Chairman. But you don't have any data on it?
    Mr. Cunningham. No, but I think we certainly have people 
that claim they filled out voter registrations. The problem is 
we don't know who circulated those registrations so we have no 
way to go back.
    The Chairman. Mr. Vu, you mentioned one who dumped 16,000 
registrations on you in August and they were dated March and 
    Mr. Vu. Some of them, yes.
    The Chairman. Was it a certain group or across different 
    Mr. Vu. There was one specific group. That group was 
Project Vote.
    The Chairman. Project Vote. Has anybody told you why they 
did that?
    Mr. Vu. No. There was no explanation. From my understanding 
it was to start the process to reach a certain number from my 
understanding but no one directly came in and told me why they 
were submitting the registration cards like they did.
    The Chairman. Thank you. How about the implementation of 
the ID requirement, briefly. How did that go? We haven't 
touched on that. I am just curious because there isn't an ID 
requirement in HAVA.
    Mr. Cunningham. It was confusing. We did manage to work it 
out. Probably the biggest problem----
    The Chairman. When we created HAVA we provided a lot of 
latitude. You may not have a driver's license, so we gave out 
bank card stickers. We gave a lot of latitude, I know we put 
that into the bill, which probably should have caused----
    Mr. Cunningham. It caused the poll workers more problems 
than it caused us personally in the office. The other issue was 
it took us--when that provision was ordered to take place when 
we begin to start tracking who registered by mail, our software 
didn't have a field in it for that so we had to do it by hand 
until we could quickly get the software to do it. We are 
through it, though. It will be okay.
    The Chairman. So you feel more comfortable?
    Mr. Cunningham. It will be better next time, sir.
    The Chairman. Also, were there any bad reactions from 
    Mr. Cunningham. There was mixed reaction. In our county 
some voters it is like when you ask them for ID at the bank. 
Some people appreciate it and some people get offended by it. I 
would say it was pretty mixed all in all.
    Mr. Sciortino. I would agree.
    The Chairman. I will clarify for you. I am sorry. First-
time voters.
    Mr. Sciortino. First-time voters, correct. I agree with 
Keith. I don't want to expound anything more. I was allowing 
individuals who didn't have that on their registration card 
to--I was providing notice of that before the election--to get 
that in as quickly as possible because if we can solve a 
problem before election day, if I can target who is going to be 
a provisional voter and try and get them on the roll before 
election day, that solves a problem. It is going to allow that 
voter to go through the process. On election day let us flag 
that voter registration book and that voter and ask them that 
question and get that ID. Some didn't like it, like Keith said, 
but I think we have a better handle on it now.
    The Chairman. Mr. Vu.
    Mr. Vu. I would say the exact same sentiments as the two 
gentlemen to my right. The only other item that I would add to 
that also is that when we start implementing issues like ID 
requirements and trying to train poll workers as to a first 
time by mail registered voter per HAVA we start being very 
concise and specific. Again, this becomes a poll worker 
training issue which we need to get better at and in due time 
it will mature.
    One of the things that we learned out of this is that poll 
workers were, again, similar to like the primary elections were 
asking individuals that were supposed to provide identification 
so there was some miscommunication on that end as to what the 
poll workers were doing.
    Ms. Millender-McDonald. Mr. Chairman--oh, you want him to 
answer this question.
    The Chairman. Mr. Anthony.
    Mr. Anthony. I have the same answer. It generally worked 
very well for us and it was a poll worker training issue. The 
report that we submitted to you we are talking about trying to 
be a little--trying to do more poll worker training partnering 
with our high school and university level groups to try to help 
    The Chairman. Gentlelady.
    Ms. Tubbs-Jones. I think the gentlewoman needs to raise one 
more question if she is permitted to do that.
    Ms. Millender-McDonald. Mr. Chairman, thank you very much. 
Mr. Vu, just one more question, or quick series of questions. 
In fact, the Cuyahoga County Board of Elections made the 
decision to not follow a directive of the Secretary of State 
with regard to the provisional ballot. Is that correct, sir?
    Mr. Vu. I apologize that I need to elaborate on this. We 
had a forum, a road map to the 2004 election forum where we 
stated that there was a directive and that we were going to err 
on the side of the voter that if the voter, similar to what 
Chairman Ney was saying, is that if the voter insisted that 
they were in that precinct, that we would give them that 
provisional ballot.
    Of course, this was contrary to a directive that we had 
received because we had specifically stated and asked for 
clarification on this directive as to whether or not we could 
issue a provisional ballot. It was the issuing portion of it.
    Ms. Millender-McDonald. Right.
    Mr. Vu. Whether we could issue a provisional ballot to the 
voter and the answer to that was no. Of course, that went to 
litigation and the appeals court, 6th District Appeals Court, 
said it was parallel to what the Board of Elections in Cuyahoga 
County thought.
    Ms. Millender-McDonald. In fact, the Secretary of State 
said to you if you don't follow his directive, he threatened 
every member of that Board of Elections for choosing to make 
that claim. Did he not?
    Mr. Vu. That is correct. We received a letter from the 
Secretary of State's office that if we did not follow the 
directive that the director and its board may be dismissed.
    Ms. Millender-McDonald. Thank you. I better follow up on 
that. Was this the only county where that threat was made by 
the Secretary of State or was it all of you?
    Mr. Cunningham. I wasn't threatened.
    Mr. Anthony. It was implied.
    Ms. Millender-McDonald. I am sorry?
    Mr. Anthony. It was an implied threat.
    Ms. Millender-McDonald. Sir, threats are not implied. They 
are directed.
    Mr. Anthony. Yes, ma'am.
    Ms. Millender-McDonald. They are direct threats. Threats 
are not implied.
    Mr. Anthony. We didn't receive communication.
    Ms. Millender-McDonald. Why is it that your county was the 
only one where you were threatened or the members of your 
    Mr. Vu. I believe it was out of the forum. There was an 
article that was written as a result but there was no 
communication on our end from the Secretary of State's office 
asking for clarification of what was said in the forum. It was 
an article that was written as to what our position was 
relative to the provisional voting that prompted the letter to 
be directed to the Cuyahoga County Board of Elections.
    The Chairman. Did you deem it to be a threat or the 
Secretary of State's perception of following current law?
    Mr. Vu. It was the Secretary of State. According to the 
letter it was the Secretary of State and the Board of Elections 
following the law.
    Ms. Millender-McDonald. If you did not then?
    Mr. Vu. That any and all including dismissal of the Board 
and its director would be----
    Ms. Millender-McDonald. And that is in your law?
    Mr. Vu. It is the prerogative of the Secretary of State and 
the authority of the Secretary of State.
    Ms. Millender-McDonald. No, it is not in the law.
    The Chairman. It is actually in the law.
    Mr. Cunningham. We are appointed by the Secretary of State 
and he has the authority to remove us from office if he thinks 
we are not doing our job.
    The Chairman. Whether we like it or not it is in the law.
    Mr. Cunningham. Yes. He is the boss.
    The Chairman. Whether we agree or not he carries out the 
    Ms. Millender-McDonald. Therefore, it is not bipartisan by 
any means.
    Mr. Cunningham. I don't think it is fair to say that 
because the situation in Ohio is----
    Ms. Millender-McDonald. Let me just leave this, sir. It is 
my time to do that, sir. Mr. Chairman, I will do this and be 
done with it. Volunteers from all over the world took part in 
the Fair Election International Project spearheaded by global 
exchange, an international human rights organization.
    In December the Organization released a report summarizing 
the election observations conducted by 15 election experts and 
democracy advocates from five continents who observed voting 
activities in Florida, Ohio, and Missouri.
    The report concluded that, ``Despite reforms undertaken in 
response to the 2000 election, confidence in and the equity of 
the United States electoral system continues to be compromised 
by ambiguities and election standards, partisan oversight, and 
problematic voting equipment. All of the practices the 
coalition agreed needlessly undermined voter confidence and the 
integrity of the United States election system.'' I thank you.
    The Chairman. Let me just close by thanking my colleagues. 
This is something that should be aired and it is a good thing 
that I can do it. We also have a bipartisan group. I am 
assuming some of you are Democrats.
    You have been a wonderful panel. We surely appreciate your 
time. Also on behalf of all the election people that I know on 
both sides of the aisle, they do a very, very decent job, and I 
think all parties are alike in their performance. Thank you 
very much for your testimony.
    We are going to take a five-minute recess.
    [Whereupon, at 3:38 p.m. the committee recessed to 
reconvene at 3:52 p.m.]


    The Chairman. It is a pleasure to have the Secretary of 
State Ken Blackwell here, and also Dana Walch from the 
Secretary of State's office. We also have one other person.
    Mr. Anthony. Pat Wolfe.
    The Chairman. I know who she is. I wanted to read her nice 
biography. She is from Shacklyn County.
    Mr. Anthony. Absolutely. Here you go, Mr. Chairman.
    The Chairman. I just want to take a second. Pat Wolfe has 
been in the election profession for 21 years. She served as 
both the Director and Deputy Director of Shacklyn County Board 
of Elections, one of 16 counties I represent. I specifically 
brought her here today.
    Ms. Millender-McDonald. It was the Secretary of State who 
brought her.
    The Chairman. We endorsed it. From 1984 to 1992 she served 
as Assistant Elections Administrator and Director of Elections 
and she joined the Secretary of State's office in '92. She is a 
member of the National Association of Election Directors.
    She was only the third State Election Administrator in the 
nation to receive the certified Elections Registration 
Administrator Certification in August of '98 from Auburn 
University. I just wanted to say hello. With that we will begin 
with Mr. Walch.

                    STATEMENT OF DANA WALCH

    Mr. Walch. Thank you, Mr. Chairman. Chairman Ney, members 
of the Committee on House Administration, thank you for 
providing me the opportunity to testify before you today. My 
name is Dana Walch and I am the Director of Legislative Affairs 
for Secretary of State Ken Blackwell. For background purposes, 
I have also served the Secretary of State's office as the 
Director of Elections and the Director of Election Reform, 
overseeing our implementation of the Help America Vote Act of 
2002 (HAVA).
    Today I would like to discuss Ohio's progress in 
implementing the requirements of HAVA. While we have had bumps 
along the way, Ohio is well on its way to meeting all of the 
requirements of HAVA. I will discuss not only the progress we 
have made with HAVA implementation, but also the difficulties 
we have faced.
    Ohio has been a leader in HAVA implementation. While many 
jurisdictions have complained that there was not enough time to 
meet the requirements of HAVA, the State of Ohio has embraced 
the change and moved forward from the very beginning. We were 
one of the first states in the nation to release a Request for 
Proposal (RFP) from voting machine vendors to purchase new 
voting equipment to meet the voting system standards in HAVA.
    We qualified three vendors providing five voting systems to 
offer to our counties. Through our negotiation process, we 
secured the best pricing, warranty, and maintenance package in 
the country. Once we completed our process of selecting 
vendors, we posted our Vendor Proposal Evaluation Findings 
Report on our website so that other jurisdictions could use it 
as a guide if they chose. In short, we believe we had the most 
comprehensive, transparent voting machine procurement process 
in the country.
    We have also made great strides on the statewide voter 
registration database. We have built the statewide database and 
put the infrastructure in place to the 88 county boards of 
elections. In the 2004 general election, Ohio had 71 of its 88 
counties on the statewide system. We currently have 81 of our 
88 counties on the system with the remainder to come on board 
in the coming months. We feel very confident that our statewide 
voter registration database will be completed well in advance 
of the January 1, 2006 deadline in HAVA.
    We have in place other requirements of HAVA such as the 
development of an administrative complaint procedure, the 
posting of voter information at polling locations, and the 
creation of a toll-free system for voters to verify if their 
provisional ballot was counted. We had all of these 
requirements in place for our March 2004 primary election.
    We also met the provisional ballot requirements of HAVA. 
Ohio has had a system of provisional balloting for over 10 
years, but some modification was necessary due to HAVA. The 
issuance and counting of provisional ballots was an issue that 
was litigated right up to election day in Ohio. The major issue 
was the definition of the word jurisdiction.
    We feel, and the courts agreed, that HAVA was very clear in 
stating that the definition of jurisdiction was at the 
discretion of the states. In our state, jurisdiction is defined 
as the precinct. This court action forced our office to issue a 
number of different directives regarding provisional balloting 
as we approached election day. Now that this issue has been 
litigated and clarified by the courts, our implementation of 
HAVA provisional ballots will be much easier in the future.
    While we have made great progress in the State of Ohio in 
meeting the requirements of HAVA, we still have a long way to 
go. Due to a number of factors, we have been unable to begin 
purchasing new voting equipment for our counties. The first 
obstacle was the security concerns raised in 2003 over Direct 
Recording Electronic (DRE) voting systems. As most of our 
counties were preparing for a conversion to DRE voting 
equipment, we felt it necessary to conduct further security 
testing on this equipment to ensure the public that their votes 
would be secure.
    For that reason, we contracted with the Compuware 
Corporation and InfoSentry Services to conduct the most 
thorough security evaluation of voting equipment done to date. 
These security reviews did uncover some items that the vendors 
could do to improve the security of the equipment and Secretary 
of State Blackwell mandated that the vendors make these 
necessary modifications before we would purchase the equipment. 
In keeping with our philosophy of public disclosure, we 
publicly released the findings of the security reviews.
    Then in the spring of 2004, our state legislature began 
discussion on the need for all DRE voting machines to be 
equipped with a voter verified paper audit trail (VVPAT). In 
May of 2004, the Ohio General Assembly passed Amended 
Substitute H.B. 262 that did mandate that all DRE voting 
machines be equipped with a VVPAT by the first federal election 
after January 1, 2006. Due to our approved vendors not having 
voting devices with a VVPAT, this legislation brought our plans 
to implement new voting machines for the 2004 general election 
to a halt.
    The other item that has caused a slowing of our process was 
the Ohio General Assembly requiring the Secretary of State to 
develop standards for the operation of a VVPAT. As I am sure 
you are aware, there are currently no national standards for 
the operation of a VVPAT system.
    The State of Ohio has done considerable research on this 
subject and our proposed rule on these standards will be heard 
this week before the Joint Committee on Agency Rule Review 
(JCARR). We have had numerous meetings with each of our vendors 
and interested parties to develop these standards. Once these 
standards are official, the vendors can modify their equipment 
to include this new requirement.
    Because of the cost associated with the addition of a 
VVPAT, and that no voting system with a VVPAT has been 
certified for sale in the State of Ohio, we have made the 
decision to implement Precinct Count Optical Scan systems to 
meet the voting system requirements of HAVA. As you are aware, 
Ohio experienced a 12 percent increase in voter registration in 
    There is simply not enough money available to purchase DRE 
voting equipment for our entire state while accounting for the 
additional cost of VVPAT, the increase in voter registration, 
and to provide enough voting devices with a VVPAT to keep lines 
at the polling places to a minimum. We will provide for one DRE 
voting device at each polling location to meet the disability 
voting requirements of HAVA once systems are certified.
    As it relates to HAVA, I would respectfully offer the 
following suggestions:
    (1) That the United States Congress completes the funding 
of HAVA. Congress has done an excellent job of funding HAVA, 
but there is still approximately $900 million that was 
authorized in HAVA that has yet to be appropriated. While I am 
aware that Congress is concerned with appropriating more money 
when not all of the states have drawn down their appropriated 
funds, states like Ohio that have been moving forward to meet 
the requirements could use the remaining funds to complete our 
job. We are not asking for additional funds, we are just asking 
that you finish funding what was authorized in HAVA.
    (2) That Congress asks the National Institute of Standards 
and Technology (NIST) to develop and for the Election 
Assistance Commission to implement standards for DREs with a 
VVPAT. These standards should be developed quickly so they are 
available to states that may implement VVPAT as a requirement. 
This would keep states from having to go through what Ohio has 
had to do in developing VVPAT standards on their own.
    (3) That Congress let states implement necessary changes to 
meet the requirements of HAVA before passing additional 
legislation. Many states are having difficulty meeting the time 
lines in HAVA, and additional changes now could put states even 
further behind in their implementation efforts.
    In conclusion, I would like to make a couple of comments 
relating to the 2004 presidential election. In 2004, election 
officials in Ohio and throughout the country were put under 
tremendous pressure and our election system faced its highest 
level of public scrutiny ever. We were faced with constant 
litigation over a variety of issues, an unprecedented increase 
in voter registration, and the largest voter turnout in our 
state's history.
    The communication between the Ohio Secretary of State's 
office and the 88 county boards of elections was the best it 
has ever been. We instituted a daily conference call with the 
88 county boards of elections to communicate up-to-the-minute 
information. While our election in Ohio was not perfect, as no 
election ever will be, I am proud of the work that our office 
and the bipartisan boards of elections did to ensure that every 
voter had the ability to cast a ballot and have that ballot 
counted accurately.
    I am greatly disturbed that some have decided to rely upon 
the misinformation spread by internet bloggers and those with 
partisan agendas instead of relying on the word and experience 
of the honest, hard working men and women charged with 
administering our elections. While there has been much written 
by the many conspiracy theorists about the election in Ohio, I 
would like to note for the committee that we only had one 
individual file a complaint through our HAVA mandated 
administrative complaint procedure. The over 50,000 Ohio 
election officials and poll workers who worked in the 2004 
election should be commended for a job well done.
    Chairman Ney, thank you again for providing me the 
opportunity to testify before you today and I would welcome any 
questions the Committee may have.
    The Chairman. Thank you very much.
    Secretary of State.
    [The statement of Mr. Walch follows:]


    Secretary Blackwell. Thank you, Chairman Ney and members of 
the Committee, for the opportunity to testify today. As Ohio's 
chief elections officer, I am keenly interested in the Help 
America Vote Act and proposed changes to the federal law, and, 
more than that, I am interested in fair, clean, and transparent 
elections in my state and other jurisdictions.
    The state of Ohio received more than its fair share of 
attention during the long campaign of 2004. With the prospect 
of a close contest for the state's 20 Electoral College votes, 
Ohioans experienced an unprecedented media blitz and energetic 
drives to register voters, which produced nearly 1 million new 
voters. As Election Day approached, attorneys for both sides, 
and I underscore from both sides, were in position, combing 
Ohio's election rules for provisions that would help their 
candidate or their particular campaign.
    In addition, they scrutinized the process for errors that 
might invalidate the election if that would help their 
respective candidate. There have been plenty of materials and 
evidence for the public record to that effect and to that end.
    Let me quote one succinct statement about the outcome: 
``Overall, Ohio has a good system. Like any system, if you 
scrutinize it enough, you are going to find weaknesses.''
    This quote is from Don McTigue, a Democratic election 
lawyer who worked in the secretary of state's office in a 
previous administration, and who was deeply involved in the 
election and its aftermath.
    I happen to agree with Mr. McTigue. Overall, Ohio has a 
good system, and it performed well under extraordinary stress. 
And yes, it has some imperfections, areas where we must work to 
make our system even better. But I also must speak to, and I do 
in my full statement that I have submitted for the record, 
fabrications and exaggerations that some who dislike the fact 
that their presidential candidate lost Ohio keep repeating.
    Unlike Mr. McTigue, they dismiss evidence and simple 
explanations and the word of fellow Democrats when the 
intimation of some vast conspiracy to steal the election is so 
easy to grasp and to promote that some of them found that this 
was more exhilarating for them.
    Sadly, these fabrications come not only from disappointed 
partisans talking to each other on internet boards, but also 
from people in responsible positions and people with enough 
experience in electoral politics to know better.
    We had a tremendously complex election day. As has been 
described to you on many occasions, but most recently during 
the last panel, we have 50,000 poll workers and election 
officials. Ohio is made up of 45,000 square miles of geography. 
We have 88 counties with their own Boards of Elections. We have 
176 appointed Democrat members of those boards and 176 
appointed Republicans. Our system and its strength is a 
bipartisan transparent system. Every step of the way, 
everything is scrutinized by Democrats and Republicans alike.
    Let me say that I had the occasion to peruse the media 
accounts of other meetings where questions were asked about 
some issues that I think are very, very important. The biggest 
issue, which was raised in the question and answer session with 
the last panel, was around provisional ballots and directives. 
We will in our question-and-answer period give you a keen sense 
of the history of those provisional ballots.
    I will give you a directive on provisional ballots that was 
issued in compliance with Ohio's law in 1994 by my most 
immediate predecessor, the now Governor Bob Taft. I will show 
that it was in the month of August that we got a rash of 
inquiries as to whether or not we were going to liberalize the 
provisional ballot law.
    Most people who inquired understood that to change the law 
would take an action or a decision by the legislature. But they 
were asking me, as did the Franklin County Board of Elections, 
for my interpretation. Listening to a host of lawyers who had 
different legal perspectives we, in fact, in mid-September 
advanced a directive that had a slight change in it. It 
actually liberalized our provisional ballot law.
    It immediately was pounced on as not being liberal enough 
or having changed substantially the provisional ballot law in 
the state of Ohio and gave rise to a series of legal challenges 
where we had courts directing me to change my directive every 
other week.
    If you really want to understand why there were late 
directives, there were late directives because, one, there were 
serious questions that started in August about our 
interpretation of the Help America Vote Act. In mid-September 
we provided a directive that would have allowed ballots in 
split precincts that had been erroneous given to a voter by a 
poll worker to be counted in this case. That was a change.
    Now let me tell you, federal courts threw out that change 
and basically said I had overstepped my bounds in terms of 
liberally interpreting that law. They, in fact, directed me to 
go back to the original interpretation, which was a much more 
conservative interpretation.
    If you really want to know why there were exchanges back in 
October, it was because the courts kept changing their minds. I 
think most folks sitting on this panel understand that. I think 
most folks in Congress understand that. I can tell you that 
most folks who read the newspapers in Ohio understood and 
understand that.
    The other question is around poll worker training. I just 
want to get to it right at the top. Poll worker training. What 
you heard from those individuals was that poll worker training 
followed the normal course of events this time around. What you 
didn't hear from that panel was that we had two statewide 
meetings, plus a primary election in 2004. We had a meeting of 
all the election officials in January of 2004. We then had a 
primary and we had a summer meeting of all the election 
    Those are sessions where clarifications are made, where, in 
fact, we talk about techniques that are working, and we 
exchange best practices. Not only did the EAC and the NASS, the 
National Association of the Secretaries of State, distribute 
best practices, we, in fact, used those best practices. 
Because, you know what? Ohio was referenced in those best 
practices as much, or if not more, than any other state. We 
actually do know how to handle provisional ballots in this 
    What I have suggested to you is that the courts, the 
legislature, and I as the Chief Election Officer of this state, 
what we did was we went with Ohio law and we did it within the 
context of HAVA. We happen to be privileged to have the Moritz 
College of Law here in Columbus who did an extensive 
legislative history on the evolution of HAVA and it was brought 
to our attention in that legislative history that there was a 
profound debate within the Congress where in the House there 
was a belief that jurisdiction would mean any place in the 
county so it was a broader definition.
    Senator Bond, who led the effort in the Senate, wanted the 
more conservative definition of jurisdiction. In conference 
committee the Senate won and so HAVA basically says that it is 
up to the state to determine jurisdiction. The narrow 
definition did not get approved, nor did the broader 
    HAVA left that up to the state. I submit to you from the 
record that legislative history. I would suggest to you that 
everyone sitting up there understood that legislative history 
and everyone in Congress who was following the process 
understood that legislative history and the courts and the 
Secretary of State's office understood that history.
    We had a good election in the state of Ohio. Not a perfect 
election. Elections are, in fact, human endeavors and as a 
consequence they are never perfect. But just as Lincoln said 
about our union, ``Elections are perfectible. We can make them 
    I was struck by the fact that there is common ground 
between myself and members of this Committee. I have advocated 
since the inception, my first day on the job, my first week on 
the job. My first legislative idea was to go with no-fault 
absentee ballots for broader use of absentee ballots, moving 
away from the 11 or so excuses that are there now that you have 
to meet in order to get an absentee ballot.
    I am a very strong advocate of early voting and have been. 
I also am respectful of the legislative process and understand 
that this is a matter where the balance of power works and the 
legislature has said that we will not have at this point a 
broader use of absentee ballots, nor will there be early 
    I can tell you if you want to come and help me campaign 
with the legislature for their broader definition, you are more 
than welcomed, but I would suggest to you that just as you like 
to have your integrity respected, so does the Ohio legislature. 
They are the elected representatives of the people of Ohio in 
this legislative process.
    I hope that we can find common ground. I can tell you right 
now I was among the first to challenge the continued use of 
punch-card ballots. That is why I got this letter. Not just a 
form letter, but a handwritten note from Congressman Steny 
Hoyer and the Chairman basically saying that I was in the 
forefront of moving forward the passage of HAVA and the 
elimination of punch-card ballots. We, in fact, in the 11th 
hour, got House Bill 262, which basically changed the rules of 
the game and said that we needed a voter-verified, paper audit 
    I don't know where you all net out on that, but I am here 
to tell you it has been a center piece of the national debate, 
a center piece. But the EAC has yet to establish standards and 
the independent testing authorities have yet to establish 
standards. So as a consequence, we are in a situation where 
Ohio law prevails and I have my marching orders from the 
legislature and I am going to play out the hand that was dealt 
    You all haven't changed the implementation schedule. They 
haven't changed the VVPAT requirement. And we haven't gotten 
any more money. We have $105 million for machines and the only 
way that we can be in compliance and meet your schedule and 
deal with the money that has been provided is by going to the 
precinct-count optical scan, which those machines are HAVA 
compliant, they are within our budget of the money allotted, 
and we can, in fact, meet our deadline.
    In closing, let me say, because this seems to be another 
issue of question, the legislature in House Bill 62 allocated 
the dollars for voter education and they had two strategic 
objectives. The counties were to receive voter education money 
at the point that they implemented and deployed new machines. 
Because the voters would be using new machines, House Bill 262 
said that at that point they would get $2.5 million to be 
allocated on formula. We had OEAO agreement, the Ohio 
Association of Election Officials. Nobody spoke to the 
conference committee to the contrary.
    Secondly, let me tell you why we spent $2.5 million on a 
voter education program that is considered to be the template 
of best practices, because 70 percent of our voters use the 
punch-card system, a punch-card system that many on the panel 
found to be discriminatory against low income and minority 
voters in urban areas.
    I was in the forefront of saying that we needed to get rid 
of that system and I am still in the forefront of saying that 
we are going to meet your time lines to get rid of that system. 
I would just suggest to you that we will, in fact, spend the 
money on the new system on voter education, but we must measure 
the effectiveness of our education program.
    I know the Chairman has had a question. He has had a 
question about whether or not we have had impact on over or 
under ballots where, in fact, you can measure folks who over-
vote. You can't determine whether folks who under-voted did so 
initially or if there was some machine malfunction.
    As compared to 2000, we had fewer over/under votes 
percentage wise because we had over a million more voters than 
we did in 2000. The education program worked. It was cost 
effective, because we made commercials that could be used 
across the state because the dominant system in our state was 
the punch card.
    We, in fact, ran an aggressive voter education campaign. By 
anybody's measure, it worked. If we want to get more money out 
to counties, then we start with the legislature and we say let 
us get them more money. But the fact is that we are not to 
denigrate a statewide system that worked against a statewide 
problem. Thank you.
    The Chairman. Thank you very much for your testimony.
    [The statement of Secretary Blackwell follows:]

    The Chairman. I will start by asking a question. Secretary 
of State, I recall that you were the first person involved from 
the forefront. You were the first person called when this 
started, as well as your colleague, Democrat Secretary of State 
Priest from Arkansas. We received unanimous support of NAS. I 
have said that, and appreciate you doing that, and appreciate 
the phone call that first day to help us along in this process.
    Mr. Walch, you referred in your testimony, and, it was 
raised about Knox County, to the voter's fair and other issues 
that have been raised about disenfranchisement and other 
issues. You mentioned there is only one person that filed an 
administrative complaint. Do you want to expound on that? That 
individual is from which county?
    Mr. Walch. Mr. Chairman, that individual is from Allen 
County, Ohio.
    The Chairman. Why do you think only one person filed a 
    Mr. Walch. Mr. Chairman, I think the overall reason as to 
why there were so few filed is because, as the Secretary said, 
and I think I said in my testimony also, I think we had a very 
good election here in the state of Ohio. Overall things went 
very smoothly. As I think we have all testified to and said in 
public statements, it by no means was a perfect election.
    There are always improvements that we can do and we have 
gone through an analysis of the selection and have been working 
on that. You heard Representative DeWine talk earlier about 
House Bill 3 and Senate Bill 3, a companion piece of 
legislation that our office is working very closely with the 
legislature on to improve an already very good system. My 
answer to that is the reason I think not more people filed was 
because we had a good election year in the state of Ohio.
    The Chairman. I have another question for either the 
Secretary of State or Mr. Walch. A key component of HAVA is the 
requirement that each state establish a statewide voter 
registration database. Once this requirement is met here in 
Ohio, what impact do you think it will have on the registration 
process and the demand for provisionals? Do you have any 
reflection on what is coming down the road?
    Secretary Blackwell. Again Ohio is in the forefront. Most 
states are having a very difficult time. We now have all 88 
counties in place and it will have a tremendous impact. It 
will, in fact, deal with the time lag that the gentlewoman from 
California raised with the last panel as to why we trail the 
    Well, we don't have a centralized system so we are 
dependent upon information coming in from all 88 counties and 
then we put the information back out to them. With a very 
shoebox system, a very paper oriented system, that takes a 
whole lot of time when you are talking about now, you know, 7.3 
million voters. That is an issue. This issue is one of the 
great accomplishments of HAVA. That issue goes away.
    Now, I do want to say that there was some question about 
HAVA and the statewide plan. We had a statewide plan and I got 
here just in time to hear each member of the last panel ask if 
they were on the statewide plan. A more pointed question would 
have been were election officials represented on the statewide 
plan committee which the state plan is now part of the national 
    It got approved by the Federal Government. It went through 
the express process of inviting anybody who wanted to testify 
at at least three public hearings to come in and testify. It 
was, in fact, a plan that was signed off on by election 
officials, as well as community-based voter groups. The plan is 
a statewide plan that had diverse input from across the state.
    Let me just say for the gentlewoman from Cleveland that the 
chairman, Mr. Thomas Coyne. I think he is a Democrat, was a 
member--he was the Chairman of the Board of Elections, was a 
member of the statewide plan committee. So our largest county 
was represented on the statewide planning committee.
    It was a committee that had its final product, the 
statewide plan, vetted nationally because it had to fit on our 
website and we had to deal with questions and answers from not 
only from Ohio, but from across the country. It was a well-
vetted state plan. It was also a state plan that the National 
Association of Secretaries of State used as a model.
    The Chairman. I have a question on voter ID. How did that 
go? Do you have any opinions on voter ID?
    Mr. Walch. Mr. Chairman, we received very few calls about 
any problems with that on election day. I think in the state of 
Ohio it went very smoothly. We had implemented that in the 
primary election we had in March of 2004. The feedback we 
received from election officials throughout the state was that 
most people are actually surprised when they have gone to vote 
and didn't have to show some form of ID. Those that were 
required to show some form of ID, which were not many in the 
state of Ohio, those folks didn't have any problem.
    The Chairman. I haven't heard much nationally. We did hear 
some issues out west, but one of the most common complaints 
arising from the 2004 election was that the lines were too long 
at some polling places. I asked the question today. Mr. 
Secretary, I don't know if you were here at the time, but I 
asked all four of the last panelists: Do you want the Federal 
Government to solve that or the local bodies? Nobody wanted the 
Federal Government. I thought I would mention that, but it is 
difficult to solve long lines because of an insufficient number 
of machines.
    Again, the two complaints you hear the most are that the 
lines are too long at some polling places, and that the voters 
could not cast a provisional ballot anywhere within the county 
in which they live, but rather had to cast at their assigned 
polling places in order for it to be counted. Any comment on 
those two?
    Secretary Blackwell. You can disagree with Ohio law. 
California has a different law than the state of Ohio, but the 
fact is that Ohio law says that the jurisdiction is the 
precinct in which a voter resides. Now, Ohio law has also 
allowed for a couple things for a decade. First, anybody who is 
in question can register and cast a ballot at the Board of 
Elections. Anybody who wants a provisional ballot can go to the 
Board of Elections and get it done. They can do that.
    Secondly, we allow for the creation of provisional voting 
centers throughout a county, one as large as Cuyahoga. That has 
been part of the law for 10 years. We can't mandate it from the 
central government of Columbus, but it, in fact, is a provision 
of the law which allows for the creation of those provisional 
voting centers. Anybody who has been around for two years, four 
years, six years, eight years, seven years, as I heard one 
gentleman say, should know that. That is a fact.
    And, you know, as it relates to long lines, I agree with 
you. No one should have to wait until the wee hours of the 
morning. No one should have to wait for two and a half hours. 
But you all have to understand that voting machine deployment 
has an intersection with a whole host of issues.
    First, it is voting pattern history, available dollars, 
production timing. These machines are not just sitting on a 
shelf. We in Ohio have allowed for the use of different systems 
that meet specific standards. I understand that you had a 
question asked of the gentleman from Franklin County where they 
had too few machines and the gentleman from Cuyahoga County 
where they had 1,000 excess machines, but they used two 
different systems.
    The fact is that we have some very real issues that we have 
to wrestle with, and that is, do we move to a one-system 
concept. We got to that through the back door. One system in 
the general sense of a precinct count optical scan even though 
we are dealing with two different manufacturers. That is 
optimally what we would like to do but we don't have enough 
machines at a reasonable cost that meet all of the 
certification guidelines and so that is a problem.
    I was the first to say that we couldn't control the rain. 
We couldn't control county budgets and state budgets. The fact 
of the matter is that we can now take steps to make sure that 
those problems are alleviated in the future with a broader use 
of absentee ballots and early voting. I said that right out of 
the chute.
    Now, the reality in this county--let us go to Knox County. 
We got a lot of publicity, and rightfully so, but anybody who 
has been around election administration for two hours could 
understand this. The gentlewoman from California, let me just 
say I agree wholeheartedly with something that you said.
    Political veterans understood that there hasn't been a 
Republican win or retain the White House without carrying Ohio. 
That was a fact that didn't go to sleep. The Kerry campaign 
didn't sleep, nor the Bush campaign. The other issue is that if 
you go back to 2000, you take Ralph Nader off the ballot, you 
are probably talking about a 1 percentage point difference 
between then Governor Bush and Vice President Gore.
    Anybody who had a historical point of view would know that 
we are going to have a major, major influx because we had 
Americans acting together. We had a very hot issue around the 
definition of marriage and a constitutional amendment that had 
gotten a lot of folks revved up. Even knowing that, we didn't 
have enough money to employ additional machines.
    Even anticipating that, it wasn't there. Now, at one point 
I thought it might be there to get half of the counties moved 
into the new DRE system and, lo and behold, we got the last 
minute requirement of a VVPAT. I will say, in all fairness, a 
lot of it was coming from Democratic camps, the demand for the 
    Here in the state of Ohio, Senator Fedor from the western 
side of the state was the primary leading Democrat. The fact of 
the matter is that this is not something that Republicans 
conspired. It was bipartisan. Senator Jacobson, who I 
understand had a nice exchange with you today to say it mildly, 
was right there demanding for VVPAT. It was a bipartisan, last-
minute decision. But it was a last-minute decision and it drove 
up the cost of the machines, so there was no way that you were 
going to have enough machines.
    Let me tell you what happened. In Knox County, where Keynon 
College is located, traditionally those students vote absentee 
ballots in their respective home states. Because folks 
understood Ohio, was going to be the battle ground state, the 
campaigns both adopted a strategy of getting them to vote in 
the state of Ohio which was an option open to them. The fact of 
the matter is they filed their Ohio voter registrations late.
    Not past the deadline, but late into the system so there 
was no way that those folks could have anticipated that there 
was going to be that change in voter behavior. What they did 
was the best they could do with too many voters for too few 
machines. They did the best that they could do. Shame on us if 
that happens again, because we now have that historical 
    So, yeah, were there long lines? They were across the 
board. Were there long lines in Franklin County? Yeah, you 
heard. But, look, our system is a bipartisan system. It would 
have taken the collusion of 176 Democrats. Not just any 
Democrat. Most of them are Democratic leaders. Tim Burke in 
Hamilton County, Chairman of the Hamilton County Democratic 
Party, very active in the Kerry campaign.
    Bill Anthony, labor leader, Chairman of the Franklin County 
Party, as well as the Chairman of the Board of Elections. The 
two people responsible in Franklin County for the distribution 
of voting machines are two Democrats so it is silly on its face 
to think that there was some kind of bipartisan conspiracy to 
disenfranchise black and inner-city voters in Franklin County 
when you had Democrats and blacks in charge of that system.
    The Chairman. We want to move on to our Ranking Member and 
member from Cuyahoga County, but I have just one correlation in 
my mind. If you allow people to cast ballots anywhere in the 
county or state, you are going to have extremely long lines. I 
don't know how we could have anticipated where on earth anybody 
would vote. If you do statewide voting, everybody driving from 
counties going across Ohio could vote wherever they please. I 
don't know how we would have known where anybody would vote.
    Secretary Blackwell. Mr. Chairman, let me just say, the 
expectation in a fledgling democracy like Afghanistan was that 
voters would vote in their assigned voting area or 
jurisdiction. We are veterans of the democratic process. For 
228 years, there have been two hallmarks of American elections 
that are truly free and fair. The first is the protection of 
the sovereignty, the sanctity of the voting station so that the 
secrecy of the ballot is protected.
    Secondly, it is an honest count. In Ohio, you got an honest 
count three times--three times. In Ohio you, in fact, had 
election officials that fought to make sure that we balanced 
two strategic objectives to meet the first overriding concern 
and that is the protection of the voting station and the 
secrecy of the ballot. That was that we have to balance two 
strategic objectives. The first is we have to make voting as 
easy as possible. Make the ballot as accessible as possible.
    Secondly, we have to understand that a fraudulent vote 
discounts legitimate votes, so we have to work very hard to 
make sure that our system is fraud-free and that we were able 
to do. That is one reason why we have had a record turnout and 
the system, no matter how taxed it was, showed stability and 
professionalism and patience and got the job done. That is what 
I found so offensive about the charges that were made against 
the system by folks who didn't have the decency to check the 
facts. Let me just answer that question and let me just make 
this statement.
    Early on, there was a lot of concern about how we were 
dealing with provisional ballots and it was positioned as if 
Ohio was doing something dramatically different and out of the 
mainstream. Let me underscore, for the record, that 27 other 
states, plus the District of Columbia, require votes to be cast 
in the correct precinct to be counted.
    There was the amazement on my part is that I didn't see 
press conferences and pickets going to Boston, Massachusetts, 
where they have the same laws we have in the state of Ohio. I 
didn't see press conferences held in the District of Columbia, 
where they have the same provisional law as we have in Ohio.
    So if the controlling principle was the concern about the 
disenfranchisement of African-Americans, there are more 
African-Americans per square mile in the District of Columbia 
than in the state of Ohio. Why weren't there protests there? 
This positioning of Ohio as doing something that was radically 
different. It was a false position. We were in the mainstream 
of states. Twenty-eight states, plus the District of Columbia. 
None of them changed.
    All of them, in fact, found reasonableness in that 
requirement and they maintained it. I would suggest that there 
were issues to deliberately cause confusion in the state of 
Ohio. We were targeted for such chaos and confusion and it is a 
testament to the professionalism of 50,000 poll workers and 
election officials that got it right in the face of this.
    Mr. Walch. I am sorry, Mr. Chairman. Can I make an 
additional comment to the Secretary, please?
    The Chairman. Yes.
    Mr. Walch. To your point of voters not being able to cast a 
ballot anywhere in the county, I listened to our colleagues on 
the previous panel talk about that and some previous ways of 
doing in some counties. I heard Mr. Cunningham talk about from 
Allen County that he in this election did not do one thing 
different than he has done in past elections as it related to 
the issue of counting provisional ballots.
    That is because Mr. Cunningham has been doing it by the 
same directive that has been out there, as Secretary Blackwell 
talked about earlier, since 1994. If there are counties out 
there that felt that there was some sort of change to past 
practice on this, that was due to them not doing it properly in 
past elections.
    But our job at the Secretary of State's office was to 
ensure that they were doing it by law and that is why we 
reminded them of current Ohio practice on issuance and counting 
of provisional ballots. I would also to your point of 
provisional ballots, I would also for the Committee's 
consideration remind everyone that Ohio had the fourth highest 
acceptance rate of provisional ballots cast in the country 
according to Electionline.org.
    I would say I am very proud of the work that we in the 
bipartisan Boards of Elections did in ensuring that everybody 
got a provisional ballot who wanted one and that those 
provisional ballots were counted if that voter was eligible to 
    Ms. Millender-McDonald. Mr. Chairman, can we get a yield 
for a moment from Mr. Walch?
    The Chairman. Just on this point, Ranking Member, my 
intention of HAVA is very clear. You have to have the 
provisional ballots, but never had the word ballot been written 
into the law. The idea was, especially for states that didn't 
have it, to stop disenfranchisement. You have to give people 
the ballot.
    We never, rightfully so, dictated how you count it. You 
have standards in Ohio and set procedures. If people don't like 
that then they go to their state legislators and you change it. 
Now, I mentioned the county thing because I can't imagine--you 
want to talk lines or chaos, I can't imagine how you could have 
counting in the county. It would be chaos. Now, in perfect day 
when we are no longer here on this planet and electronics work, 
you pull up a little screen and you put your finger on it or 
your iris, you could be in California and vote in Belmont 
County, for example. That hopefully will come some day, but we 
don't have that currently.
    I have always asked this question. How on earth would a 
person in a county vote in St. Clairesville if he is from 
Bellaire, my original hometown. If you are from Bellaire but 
you go and vote in St. Clairesville and say, ``Well, by the 
way, I am voting on the St. Clairesville school levy, but I am 
from Bellaire, Ohio, where I pay my taxes.'' How do you sort 
that out? These are things that I find impossible to sort out. 
I think we would have complete imploding of the election under 
the current technology.
    Secretary Blackwell. Mr. Chairman, I think you have to 
start by the fact that you are never going to have the perfect 
system. There is always a way to make it better so you are 
never going to be able to totally eliminate the possibility of 
long lines.
    Let me tell you what my experience has been as I have 
criss-crossed the country over the six or seven years that I 
have been in this office. Something that has not been talked 
about today is that the complexity of the ballot is a big 
issue. Let me just tell you something, if you want to go back 
and understand.
    If, in fact, you have, like in California, 17 different 
statewide issues and a whole host of judges that you have to go 
in and look through, most voter behavior is that they wait 
until the last couple of hours and many of them go into the 
voting booth with the League of Women Voters Voter Guide and 
say, ``Let me see where this guy graduated from.''
    The issue becomes one of voter complexity. In the state of 
Ohio, thank God, this time around, because we educated against 
it, but it is still on the books you only have five minutes to 
vote. Yeah. Now, I tried to get that eliminated, but it didn't 
get eliminated. You only have five minutes to vote.
    The Chairman. Mr. Secretary, would you like to clarify 
    Secretary Blackwell. No, I don't want to clarify it. It is 
    The Chairman. Mr. Secretary, this is not an adverse 
situation. It is for the gentlelady's information.
    Secretary Blackwell. If, in fact, you went into a voting 
booth and you hadn't done your homework and you decided to read 
the information while you were in the voting booth, you 
inconvenience ``those who are in line.'' We are talking about 
lines now. We are talking about lines.
    Ms. Millender-McDonald. Irrespective.
    Secretary Blackwell. Let me tell you. We are talking about 
lines. What I just told you is that we didn't get that 
exercised out, but we didn't have that problem this time. By 
not enforcing the five-minute rule, we added to the wait. You 
can't tell me--you said they enforced.
    Ms. Millender-McDonald. No, I am not saying that.
    Secretary Blackwell. I know you are not. So you said you 
shouldn't enforce it.
    Ms. Millender-McDonald. That is right.
    Secretary Blackwell. So that means that----
    Ms. Millender-McDonald. And you said you did not enforce 
    Secretary Blackwell. We didn't enforce it and that meant 
that we had longer waits because of people's voter behavior. If 
you want to talk about this in an academic sense, that has been 
studied. People take longer sometimes than five minutes if they 
are not familiar with the ballot or if the ballot is very 
complicated and has a lot of issues on it.
    Ms. Millender-McDonald. Of course.
    Secretary Blackwell. That is all I am saying. So there are 
a whole host of issues that impact wait and the length of the 
    Ms. Millender-McDonald. That is one of those.
    Secretary Blackwell. That is one of those. Absolutely. If 
you want to begin to attack ways to eliminate lines, some could 
argue that you, in fact, enforce the five-minute rule and the 
voter responsibility is to be educated before he or she walks 
into the station to execute the ballot. Others will say, ``take 
as long as you want. If somebody else has to wait, so be it.''
    The Chairman. We will move on. I was defending you.
    Secretary Blackwell. I know you were.
    The Chairman. She is from California. I just wanted to 
    Ms. Millender-McDonald. You put California out there five 
different times. My goodness. You said California once before 
and he said California three times.
    Secretary Blackwell. I said California three times. I sure 
    Ms. Millender-McDonald. Just referencing.
    Secretary Blackwell. Referencing because I have looked at 
    Ms. Millender-McDonald. Problems----
    The Chairman. If you will take me back for a second, 
Ranking Member, I am clarifying that you are from California 
and asking if you are familiar with our five-minute rule.
    Ms. Millender-McDonald. That is true.
    The Chairman. No offense.
    Ms. Millender-McDonald. He was defending you.
    The Chairman. With that, I will yield to the Ranking 
    Ms. Millender-McDonald. He is a great Chairman.
    Secretary Blackwell. Yes, he is.
    Ms. Millender-McDonald. You have given us a great Chairman 
here from Ohio and we are very pleased with him.
    Before I get to the Honorable Secretary of State, I would 
like to go back to Mr. Walch. You were saying that Mr. 
Cunningham perhaps had abided by this 1994 law. It seems to me 
you were implying that the others were not, causing some 
confusion. Am I correct in my assessment of that?
    Mr. Walch. Mr. Chairman, Congresswoman, yes. That is 
correct. If a county felt that there was something different 
going on this year than had gone on in the past, the only 
explanation for that was they were not doing it correctly in 
the past. Ohio law----
    Ms. Millender-McDonald. Isn't it your position then to 
correct them?
    Mr. Walch. That is what we did.
    Secretary Blackwell. Let me answer. Let me just say what is 
unknown, and I will welcome your advocacy. No, I wouldn't. We 
have 12 central office election officials. What my office does, 
the majority of my staff does, is on the business services side 
of the office. Now, the reality is that in terms of elections 
administration, we have 12. We don't have an enforcement 
agency. The only thing that we can do through directives is 
clarify and give reference points for the 88 county Boards of 
Elections. So it might be easy to come in from out of state and 
assume I have dozens upon dozens upon dozens of people to cover 
45,000 square miles of territory and 88 counties. I don't.
    Ms. Millender-McDonald. Just----
    Secretary Blackwell. The issue is you asked him don't we 
have--this isn't our responsibility. I want to be clear on what 
our responsibility is.
    Ms. Millender-McDonald. Is it not your responsibility?
    Secretary Blackwell. Our responsibility is to state Ohio 
law and to give a reference point. The only way that we can 
find out is through a complaint system or through their own 
    Ms. Millender-McDonald. Which you did not get.
    Secretary Blackwell. Which we did not get.
    Ms. Millender-McDonald. You did not get that.
    Secretary Blackwell. Prior to coming into this, right. That 
is how our system works. And the other issue is one of local 
enforcement; it is the job of the respective county prosecutor.
    Ms. Millender-McDonald. Well, you know, Mr. Secretary of 
State, you do have a lot of improvement to do and that is based 
on your limitation of personnel or a myriad of other things 
that you have outlined.
    Secretary Blackwell. I just----
    Ms. Millender-McDonald. But I am saying----
    Secretary Blackwell. The whole state does. I mean, the 
whole country does.
    Ms. Millender-McDonald. I am going to say that in 
Wisconsin. I am going to say it in Pennsylvania. I am going to 
say it in Florida. I am going to say it wherever I go because 
there are problems that are systemic around the country. Now, 
Mr. Secretary of State, you were well aware that Ohio was a 
swing state.
    Secretary Blackwell. Right.
    Ms. Millender-McDonald. You are well aware that when the 
swing states come into focus leading up to a presidential 
election--I was going to ask how long have you been here. You 
have been the Secretary of State for six or seven years?
    Secretary Blackwell. Six years.
    Ms. Millender-McDonald. So it is obvious that you knew that 
folks would be coming in from all walks of life. You would have 
a barrage of folks coming in. You knew that and, yet, with all 
of this, you are saying that you don't know why the media 
blitz, you don't know why all of these folks are coming in with 
these different groups.
    Secretary Blackwell. No, I didn't say that. You go back and 
check the record. I didn't say that. Somebody might have said 
it, but I did not say that. I anticipated. I anticipated. Let 
me tell you when I anticipated it most is when we took Ralph 
Nader off the ballot and I was very much aware of what I told 
you beforehand. I knew that Ohio was going to be the premiere 
battleground state. I knew it.
    Ms. Millender-McDonald. Then did you know that then you 
should have known that you were going to have over a 100,000 
new registrants perhaps.
    Secretary Blackwell. Right.
    Ms. Millender-McDonald. And that you should have put into 
place some type of mechanism to deal with this onslaught of all 
these registrations.
    Secretary Blackwell. Madam, in your brilliance, would you 
tell me who would have paid for it?
    Ms. Millender-McDonald. I am sorry?
    Secretary Blackwell. In your brilliance would you tell me 
who would have paid for it?
    Ms. Millender-McDonald. It is a possibility you would not 
have had that, even though you got the third highest amount of 
money from HAVA.
    Secretary Blackwell. Can you tell me who would have paid 
for it?
    Ms. Millender-McDonald. But, you know what, Mr. Secretary 
of State? You are the Chief Election Officer.
    Secretary Blackwell. You dagone straight I am. Let me tell 
you something.
    Ms. Millender-McDonald. You should have had----
    Secretary Blackwell. I am not the legislature. I am the 
Secretary of State and I do not allocate money.
    Ms. Millender-McDonald. I understand the provisions of 
    Secretary Blackwell. The legislature does.
    Ms. Millender-McDonald. Okay. Fine. But it is incumbent 
upon you to have found some way by which those extra 
registration forms could have been dealt with differently than 
what they were irrespective, Mr. Secretary of State, and you 
had ample time to do that it seems.
    Secretary Blackwell. Expand on that. I am fascinated how 
you can fly in here to Ohio, that you would fly in here and you 
would make an assertion that----
    Ms. Millender-McDonald. It seems to me----
    Secretary Blackwell. You are going----
    Ms. Millender-McDonald. I am not saying you should have.
    Secretary Blackwell. Okay, it seems to you. I will start 
wordsmithing with you.
    Ms. Millender-McDonald. Okay.
    Secretary Blackwell. The fact is that you have left an 
impression that, contrary to what all the election 
professionals have told you, and we will give you full 
comprehensive answers to your questions. Pat Wolfe is the 
Election Administrator. She has been introduced to you.
    The reality is that we started in January of 2004 at the 
statewide meeting of the Ohio Association of Election Officials 
starting to talk about the challenge of this election and what 
it was going to mean. I can tell you right now that if we 
hadn't had the preparation that we did have, it would have been 
a catastrophe. The fact of the matter is that what you don't 
want to hear is that Ohio----
    Ms. Millender-McDonald. Do not say what I don't want to 
    Secretary Blackwell. Well, then what you are not hearing.
    Ms. Millender-McDonald. You don't want me to put words in 
your mouth.
    Secretary Blackwell. What you are not hearing is that Ohio, 
whether you are talking about the National Associations of 
Secretaries of State or by any other objective measure, has one 
of the best election administration performances in the 
    Ms. Millender-McDonald. Mr. Blackwell, irrespective of 
that, there have been many allegations put out there. Now, 
again, you don't want to hear they are out there.
    Secretary Blackwell. Most of them have been--let me just 
show you something, madam, because I don't want to waste your 
time coming into Ohio. Most of the challenges to our state were 
handled by the media in our state.
    Ms. Millender-McDonald. I am sorry, who?
    Secretary Blackwell. The analysis was done by the media of 
our state, as well as other third party personnel and 
    Ms. Millender-McDonald. May I just say this, sir?
    Secretary Blackwell. Yes, ma'am.
    Ms. Millender-McDonald. One of the things that was raised 
is that you did have long lines.
    Secretary Blackwell. Right.
    Ms. Millender-McDonald. And, therefore, there was a certain 
amount of disenfranchisement because people just couldn't wait 
in those long lines. Now, you have said you did have long lines 
but you have explained why some of the reasons for the long 
    Secretary Blackwell. Right.
    Ms. Millender-McDonald. Nevertheless, that is out there.
    Secretary Blackwell. Everybody had long lines in the 
country. Nobody had the anomaly of Knox County that I know of. 
Everybody in general had long lines and longer waits. We had a 
record turnout. We had a million more voters this time around.
    Ms. Millender-McDonald. Because you are a swing state.
    Secretary Blackwell. Not only because we are a swing state. 
Because we, in fact, had encouraged voter education and 
registration and we got it on both sides of the aisle.
    Ms. Millender-McDonald. Well, we did not have 10-hour 
waits, but I am not sure that is an accurate account of the 
number of hours that folks waited here in Ohio either. Let me 
ask you about the forms, 800 pound paper stock that was 
suggested. Are those allegations or is this true that you out 
of the--as the results of public outcry you have changed that?
    Secretary Blackwell. No.
    Ms. Millender-McDonald. Can you explain that to me?
    Secretary Blackwell. Yes, I can. As a part of reasonable 
feedback from election officials, we relaxed the standard. 
Prior to this election, most of our voter registration came to 
us from the voters themselves and came to us through the mail.
    This election, we, in fact, had a record number of third-
party registrations. When they were coming to us through the 
mail, we, in fact, had a paper weight standard because what we 
didn't want to do is disenfranchise voters by post office 
machines damaging their registrations. Now, the reality is that 
this predated me. Now, Pat Wolfe----
    Ms. Millender-McDonald. What predates you?
    Secretary Blackwell. The paper weight requirement. Pat is 
here. She will explain to you the process, why we have it, and 
how we approached it this time around. As soon as folks told us 
that they, in fact, were getting more over-the-counter 
registrations than they were getting through the mail, and that 
the standard was a problem as opposed to an asset, we, in fact, 
relieved and relaxed that standard pure and simple.
    It is something that had been in our director's guide. We 
had, in fact, had it for a number of years. I'll let Pat 
explain to you because I own that. I own two things. I own the 
directive and I own the relaxation of that directive. But I, in 
fact, worked on the advice of election professionals and Pat is 
that election professional and one of the few in the country 
that is certified. She is certified, and she recommended to me. 
I will let her explain it to you, but I own it.
    Ms. Millender-McDonald. I just want to continue to talk 
with you, sir.
    Secretary Blackwell. Okay. Pat, would you answer the 
    Ms. Millender-McDonald. No, Mr. Secretary of State. Let us 
    Secretary Blackwell. Do you accept that answer or not?
    The Chairman. Let me just stop here for a second. Let us 
take a deep breath. First of all, gentlelady, you can proceed 
on the question. After that, I would like to hear from Pat 
Wolfe. Ranking Member, proceed.
    Ms. Millender-McDonald. Thank you, Mr. Chairman. Mr. 
Secretary of State, we will get to the lady. We are just trying 
to clear up some either allegations or misinterpretations of 
what happened. This is your opportunity to do that so that is 
why I was----
    Secretary Blackwell. That is why I am going to give you the 
whole process.
    Ms. Millender-McDonald. I understand----
    Secretary Blackwell. If we really want to get to that, I 
will give you the whole process. We will put a pin in it, flag 
it, that Pat will give you the process from the very beginning 
when it started, you know, when that standard was established 
and why.
    Ms. Millender-McDonald. Okay. Mr. Secretary, there are 
allegations that voters were told that they could not fill out 
provisional ballots in any other precinct than the one in which 
they reside. I think you have made some clearances on that. But 
will you reiterate for the record again with me why was that? 
Or why are there still allegations out there that you 
circumvented provisional ballots from being given to voters who 
did not reside in the precinct by which they had come?
    Secretary Blackwell. The most simple answer is that I don't 
know why people would continue to spread misinformation, except 
there was a mid-October, and you probably have seen it, either 
officially or politically, a DNC workbook that suggested that 
folks come in and look for problems. If there were no problems, 
exercise a preemptive strike and create problems where there 
were none.
    I would suggest that is probably what we are still 
experiencing here. I will give you a copy, just in case you 
don't have it, so you can reference it. It was very 
interesting. It came up in October. I was doing a Fox News 
Sunday interview with Chris Wallace on set with a Democrat 
lawyer. Very finely distinguished fellow. This was the first 
time that I saw that DNC newsletter. The lawyer couldn't 
respond to it.
    Ms. Millender-McDonald. Are you saying this was conjured up 
    Secretary Blackwell. I don't know. I am just saying that--
here it is right here.
    Ms. Millender-McDonald. Are you suggesting that----
    Secretary Blackwell. Kerry/Edwards Colorado Election Day 
Manual. ``If no signs of intimidation techniques have emerged 
yet, launch a preemptive strike, particularly well suited to 
states in which their techniques have been--where these 
techniques have been tried before.''
    Ms. Millender-McDonald. So it is not related to Ohio. That 
is a general statement.
    Secretary Blackwell. Well, it is a general statement. But 
just as you recognized that Ohio was a swing state and the 
premiere battleground state, I am sure they did, too.
    Ms. Millender-McDonald. The question is did you circumvent 
any provisional--sir, Mr. Secretary of State.
    Secretary Blackwell. Go ahead. I am listening.
    Ms. Millender-McDonald. Yes, but I don't have your----
    Secretary Blackwell. You have my undivided attention.
    Ms. Millender-McDonald. No, I don't.
    Secretary Blackwell. I can chew bubble gum and listen to 
you at the same time.
    Ms. Millender-McDonald. Sir, are you saying that there is 
not a ruling by you or a directive that says that no one should 
have a provisional ballet who did not reside in the precinct by 
which they have come to vote?
    Secretary Blackwell. There was no directive. There was, in 
fact, a letter back to the Cuyahoga County Board of Elections 
which basically raised what I would consider to be an ethical 
question. One, if, in fact, you know that someone is not in the 
correct precinct, to give that person a ballot that you know is 
not going to be counted effectively and intentionally, 
disenfranchises that person, even though it might make election 
administration more convenient.
    What I was told, and it was made very clear, that there 
were two things we had to separate. One was the provision of 
the ballot and the other was the counting. The courts told me 
that when they narrowed the definition of where the 
jurisdiction was, they upheld Ohio law and Ohio authority, to 
require the jurisdiction to be the precinct.
    They also made it clear to me and my lawyers that the 
ballot in accordance with HAVA had to be given to anybody. Just 
for accountability purposes, they were to tell the folks where 
they should vote. If they still wanted a ballot, HAVA said give 
them the ballot, but make them sign. Allow for them to sign an 
affidavit saying that they knew that if this vote was cast in 
the wrong precinct, it wouldn't be counted. That was a court 
compromise on a fine point, but it, in fact, was just that. I 
think, at that point, the court was doing their job.
    Ms. Millender-McDonald. But are you saying----
    Secretary Blackwell. So the answer to your question is in 
Ohio in this election, everybody got a provisional ballot that 
demanded one. There was a good-faith effort made to tell them 
that it had to be cast in the precinct in which they resided. 
Or, as Ohio law says, they could go down and vote at the County 
Board of Elections and if you happen to live in the county that 
was forward thinking enough and if they had provisional ballot 
centers, they could have voted there.
    Ms. Millender-McDonald. I was going to ask you that. Why is 
it--so, in other words, provisional ballots are one thing but 
to count those that were submitted is another thing.
    Secretary Blackwell. Right.
    Ms. Millender-McDonald. So you still disenfranchise people 
for not counting these ballots when, in fact, you should have 
dragged them down to this provisional center where I suppose 
you have the setup for them to then follow through on whatever 
they need to for clearance.
    Secretary Blackwell. They can be told that.
    Ms. Millender-McDonald. I am sorry?
    Secretary Blackwell. I would say in most counties they were 
told that. Voters have some responsibility. We don't run a 
taxicab service. The fact is that they were told the precinct 
in which they could vote and had that vote counted in 
accordance with Ohio law, not California law, not Massachusetts 
law. Well, in Massachusetts it wouldn't have counted. We, in 
fact, told voters that if they still insisted on a ballot, HAVA 
said they could get a ballot.
    Ms. Millender-McDonald. That is correct.
    Secretary Blackwell. And they got a ballot in Ohio. But 
Ohio law and the courts that upheld this said, ``We are not 
going to, in fact, be responsible for disenfranchising you. We 
will tell you where you are supposed to vote and if you don't 
want to do it and for whatever reason you want a provisional 
    Ms. Millender-McDonald. But they disenfranchised them 
    Secretary Blackwell. They disenfranchised themselves if 
they didn't vote in the right precinct. Look, let me just put 
it this way: Given the big states, the most popular states, we, 
in fact, had the highest validation rate than any big state in 
the country who had a similar law to ours. California in 
accordance with their, was one notch under. We had 78 percent 
rate and California had 77.
    Ms. Millender-McDonald. I understand. That is correct.
    Secretary Blackwell. Our neighbors next door had about 38 
percent and Illinois had 49.
    Ms. Millender-McDonald. See, we don't tell them that their 
provisional ballots are not going to be counted.
    Secretary Blackwell. And Arnold is not the Governor of Ohio 
either. I understand that we have different laws.
    Ms. Millender-McDonald. So is your law in conflict with 
    Secretary Blackwell. No. HAVA says that in terms of the 
counting of ballots, jurisdiction is determined by state law. 
State law has been well established in the state of Ohio as 
being in the precinct.
    Ms. Millender-McDonald. Mr. Blackwell.
    Secretary Blackwell. Yes, ma'am.
    Ms. Millender-McDonald. Another thing, if you can clear 
this up with me, because I have a list of problems from Ohio as 
I will have a list of problems from California and any other 
state that we go into. This problem says that voters were told, 
whether it was incorrectly or correctly, and incorrectly in 
this instance, that the presidential election would be on 
Wednesday the 3rd of November as opposed to November 2nd.
    If you have this really widespread educational campaign 
program where there are videos and people from the media, why 
would that be something that voters were told? If that is 
correct, that is another provision or statement that 
disenfranchised people.
    Secretary Blackwell. The answer to that is I don't have a 
clue why somebody would do something so devilish and evil. I 
don't have a clue, but the fact of the matter is----
    Ms. Millender-McDonald. You hadn't heard that before today?
    Secretary Blackwell. I heard it. I don't have a clue why 
they would have done it. I still don't know the motivation. You 
can't even tell me who did it.
    Ms. Millender-McDonald. No, I cannot.
    Secretary Blackwell. Right. You can't tell me who did it. I 
have not a clue because we spent money telling people when the 
election date was in the 88 counties. You tell me why. A lot of 
the assertions are made on Internet boards or a lot of the 
assertions are made by wild conspiracy theories. I have no 
idea. If I could interpret their brains and their minds, I 
would be a rich man.
    Ms. Millender-McDonald. You know what, Mr. Blackwell? Then 
why is it that this statement of those who went before this 
House of Congress on January 5, 2005, exercising their rights 
to raise questions of either improprieties or 
misinterpretations of allegations, or whatever you want to 
define these, why were they characterized as nasty and 
disingenuous partisan people when, in fact, either side of that 
spectrum, had it fallen on whichever side, you would have the 
same type of exercise?
    I guarantee you that because I have been in the Congress 
long enough to see that exercise played out on both side of the 
spectrum. Why do you call Americans who are elected officials 
who are trying to exercise their constitutional right to 
inquire nasty and disingenuous?
    Secretary Blackwell. Let me say that anyone who alleged, 
intimated that any of our professional election officials or 
the Secretary of State or the Secretary of State's employees 
promulgated that nonsense is disingenuous and silly. I really 
don't care what their nationality is.
    Ms. Millender-McDonald. We are not speaking on nationality, 
sir, nor culture nor gender.
    Secretary Blackwell. That is my point. I call it as I see 
it. Anybody who suggests that there was an election 
organization, official election organization in the State of 
Ohio that promulgated that misinformation is disingenuous or 
silly and I stick by that label.
    Ms. Millender-McDonald. Let me say this. You knew ahead of 
time that these members were going to come to the floor and 
speak their displeasure about the selection. Why didn't you 
then write a letter to try to clarify some of this as opposed 
to calling them nasty and disingenuous?
    Secretary Blackwell. Well, let me just say----
    Ms. Millender-McDonald. You are a man of honor.
    Secretary Blackwell. And integrity and professionalism and 
the list goes on.
    Ms. Millender-McDonald. And humble.
    Secretary Blackwell. Very much so. I will submit for the 
record the Cleveland Plain Dealer and the Columbus Dispatch 
third party media representatives who did thorough analysis of 
the allegations, so it wasn't any propaganda coming from the 
Secretary of State's office. I, in fact, didn't need to be 
there. Representatives of our state, the Chairman included, 
submitted for the record these independent analysis. Yeah, I 
didn't need to write a letter.
    That is why they are elected and that is what they get paid 
to do and they do it well. They stuck to the facts. You would 
have to have the imagination of Jonathan Swift to believe some 
of this nonsense that was promulgated on that day.
    Ms. Millender-McDonald. Let me say my last thing here, Mr. 
Blackwell. In your statement you say that when the intimation 
of some vast conspiracy to steal the election is so much more 
exhilarating and speaking to the whole notion that they were 
experienced, the elected officials, those who knew the process, 
Mr. Blackwell, and that you were disappointed with this 
bipartisan type of chat.
    Let me say this to you and Mr. Walch. While Mr. Walch 
states that he has only had one complaint and you are saying 
that these are the only folks who--only the disciplined 
partisans were the ones who have been very upset about this 
election. What about the average Joe? What about the average 
    What about those who think like those whom you have just 
outlined? Mr. Walch, we have been inundated with calls from 
Ohio. Maybe your lines are tied up with other things because 
those calls are coming to us. But you cannot always identify 
the partisans. You said yourself, Mr. Blackwell, that you got a 
lot of registrations of third party people.
    Secretary Blackwell. Absolutely.
    Ms. Millender-McDonald. So how can you make that type of 
assumption or comments that they were partisan acts?
    Secretary Blackwell. I am glad that you directed folks to 
that segment of my fully submitted statement for the record.
    Ms. Millender-McDonald. I am just trying to get some 
    Secretary Blackwell. I am glad that you pointed that out. I 
will suggest to you that it was an interesting--let me just 
give you a quote. Let me compliment a partisan in this regard. 
On September 29, 2004, Dan Travis, spokesperson for the Ohio 
Democratic Party, called Blackwell's decision, and this is a 
quote, ``A victory for the citizens of Ohio. You can't attempt 
massive deception and fraud to make the ballot,''
    Travis said. ``The law is clear on this and they did not 
follow the law.'' This was in the context of an article which, 
in fact, spoke to the face that I was pretty evenhanded in my 
decision and that I didn't let partisan persuasion get in the 
way. He was subsequently fired.
    Ms. Millender-McDonald. By whom?
    Secretary Blackwell. The Ohio Democratic Party. He was 
subsequently fired for speaking the truth.
    Ms. Millender-McDonald. Thank you, Mr. Chairman.
    The Chairman. Thank you, gentlelady.
    The gentlelady from Ohio
    Ms. Tubbs-Jones. Mr. Chairman, thank you very much. 
Secretary Blackwell, it is so kind of you to come before our 
Committee and answer questions.
    Secretary Blackwell. Good to see you.
    Ms. Tubbs-Jones. It was so good to see me that you chose 
not to shake my hand in the anti-room. Is that correct, sir?
    Secretary Blackwell. I chose not to shake your hand.
    Ms. Tubbs-Jones. That is the question. You chose not to 
shake my hand in the anti-room because it was so good to see 
me. Is that right?
    Secretary Blackwell. I chose not to shake your hand until I 
see how you purport yourself in this setting.
    Ms. Tubbs-Jones. Well, you know what? Watch me, sir.
    Secretary Blackwell. I have been watching you a lot.
    Ms. Tubbs-Jones. Let me ask you this question. Could you 
answer this question for me, sir, please? A quote said, ``I 
chose not to enforce the procedures with regard to the five-
minute vote.'' Can you tell me where the five-minute vote is 
listed and how you have the option of deciding whether somebody 
has five minutes to vote or 25 minutes to vote?
    Secretary Blackwell. I said we didn't have that problem in 
this election because we basically erred on the side of the 
voter. Now, if you want me to create longer lines, if you want 
me to say Ohio is the state that harasses, the fact of the 
matter is those are local decisions. Because I only have 12 
people, we did not, in fact, encourage the enforcement of the 
five-minute rule.
    Ms. Tubbs-Jones. So you are saying there is a rule under 
Ohio law that says people only have five minutes to vote and 
when they don't vote in five minutes, you can push them out of 
the line and tell them to keep going?
    Secretary Blackwell. Unfortunately.
    Ms. Tubbs-Jones. Would you please cite that for us, please, 
the citation?
    Secretary Blackwell. We will get it for you. Before you 
leave we will have it for you.
    Ms. Tubbs-Jones. Let me also ask you, sir, you quoted--you 
seem to want to quote so many Democratic persons in support of 
your position. You quoted Don McTigue in your written statement 
and it says--let me quote a statement about the outcome. 
``Overall Ohio has a good system. Like any system if you 
scrutinize it enough, you are going to find weakness.''
    I was interested that Mr. McTigue would make such a 
statement so I called him up and asked him was there anything 
else that he said and he specifically stated to me that there 
were some deficiencies. ``If you look close enough you will see 
problems like lack of procedure, lack of leadership, and lack 
of consistency in direction from the Secretary of State.'' Just 
so the record is clear, I just wanted to add that to the 
record, sir.
    Now, let me also ask you, sir, I saw your TV ads giving 
education to people about voting. Can you tell us specifically 
what you told the voter with regard to voting location, sir?
    Secretary Blackwell. Vote in your precinct. What we, had 
instructed and in accordance with Ohio law, Boards of Elections 
were to tell voters that they must, in fact, vote in their 
precinct for their vote to count.
    Ms. Tubbs-Jones. Did you tell them in their ad that if they 
couldn't vote in your precinct they could go vote at the Board 
of Elections?
    Secretary Blackwell. No, the Boards of Elections did.
    Ms. Tubbs-Jones. No, but you were the one spent $2.5 
million doing a TV ad for people who, in fact, have the 
opportunity to do punch card voting because 70 percent of the 
people in Ohio do punch card voting.
    Secretary Blackwell. Absolutely.
    Ms. Tubbs-Jones. In this ad you said, ``Vote your 
precinct,'' but you never told them that if they couldn't vote 
in precinct, they could go the Board of Elections and vote. Did 
you, sir?
    Secretary Blackwell. I sure didn't.
    Ms. Tubbs-Jones. Excuse me?
    Secretary Blackwell. Can't you hear? I said I sure didn't.
    Ms. Tubbs-Jones. And you did not why?
    Secretary Blackwell. Because you can only get so much 
information in a 30-second ad which is the most----
    Ms. Tubbs-Jones. That was important information because you 
just gave that to all of us for the world to see, sir, that 
either you go vote at a designated voting location, you vote in 
your precinct, or you go to the Board of Elections.
    Secretary Blackwell. Absolutely. And that is what they were 
told. We made sure that those 50,000 election officials and 
poll workers understood that was an option for someone who was 
in the wrong precinct but was insisting on----
    Ms. Tubbs-Jones. But you did an ad statewide.
    Secretary Blackwell. Just----
    Ms. Tubbs-Jones. You did an ad statewide that you spent 
$2.5 million on and you didn't tell them.
    Secretary Blackwell. And it worked.
    Ms. Tubbs-Jones. Except----
    Secretary Blackwell. It worked. It worked. It worked.
    Ms. Tubbs-Jones. When you get through saying ``it worked'' 
let me go on. How many more times are you going to say it 
    Secretary Blackwell. It worked. It worked and I will say it 
worked every time you ask the question. The education program 
worked and if you want the details on it, you can have them, 
but it worked. The fact of the matter is that we have--among 
popular states, we had the best validation rate and that meant 
that those folks counted.
    Ms. Tubbs-Jones. But you----
    Secretary Blackwell. And our campaign was----
    Ms. Tubbs-Jones. Just let me know when you are done.
    Secretary Blackwell. I sure will. Our campaign was Make 
Your Vote Count. The surest way to make your vote count was to 
vote your precinct. What I don't have in here--let me tell you 
what I don't have in here. We went into a million households by 
phone and they were essentially urban households and they were 
disproportionately in your district and in Cleveland. We told 
people there how to vote their provisional ballot. We told them 
to call their Board of Elections and we had a system that 
allowed for that. Let me tell you, as much as you want----
    Ms. Tubbs-Jones. Mr. Chairman, I can't let you use all my 
time answering the questions you have already answered.
    Secretary Blackwell. As much as you want to create a third-
world situation in the United States, most households, even in 
your district, have telephones and we, in fact, called them. We 
called them. I want you to know that we paid particular 
attention to your constituents. We called in and told them how 
to vote that provisional ballot to make their votes count 
because what I wanted was as many votes to count as humanly 
    Ms. Tubbs-Jones. Are you done, sir?
    Secretary Blackwell. For right now.
    Ms. Tubbs-Jones. So you specifically said--you called into 
my district and you told people to go vote their precinct but 
you never told them they could go vote at the Board of 
    Secretary Blackwell. No, we told them----
    Ms. Tubbs-Jones. The answer is yes or no, sir.
    Secretary Blackwell. No, it is not yes or no. We told them 
to call the Board of Elections so that they would, have the 
option of where to go.
    Ms. Tubbs-Jones. But you could have told them. Let us count 
the words. Vote in your precinct or vote at the Board of 
Elections. Call the Board of Elections. Same number of words. 
You could have said to them vote at the Board of Elections. 
Could you have not, sir?
    Secretary Blackwell. But given that I was elected Secretary 
of State with a constituency much larger than yours, I chose 
the language for that ad.
    Ms. Tubbs-Jones. And in the ad you specifically excluded 
you could vote at the Board of Elections.
    Secretary Blackwell. Right. Look, let me just say, all you 
had to do was go back and look at that ad. We told them where 
to call. We got them to our website. That information was right 
there so they got that information. We, in fact, made sure that 
coworkers understood to give them that information. I will tell 
you what. I refuse to sit here and be harangued by you.
    Ms. Tubbs-Jones. You know what, Mr. Blackwell? I am not 
trying to harangue you, sir. If you choose not to----
    Secretary Blackwell. Hold on. Let me----
    The Chairman. Time has expired.
    Secretary Blackwell. Thank you.
    Ms. Millender-McDonald. Mr. Blackwell, Mr. Chairman, just 
one thing, though. Not every voter has a master's degree. Not 
every voter has a bachelor's degree. We tend to want to make 
sure that information is on a level where everyone understand. 
Now, had you said that you vote this way or that way or your 
vote would not be counted, that would have sparked----
    Secretary Blackwell. Madam, look. Both of us are trained 
    Ms. Millender-McDonald. I am sorry?
    Secretary Blackwell. Both of us are trained educators.
    Ms. Millender-McDonald. Yes.
    Secretary Blackwell. I, in fact, used the language that a 
bipartisan firm, and you can have the copies. These are the 
same guys that did work for Bill Clinton. We used the language 
that they recommended and they were very much familiar with the 
    Ms. Millender-McDonald. You know, bipartisan doesn't mean a 
thing when these folks speak over----
    Secretary Blackwell. But did you hear the ad? Did you hear 
the telephone message?
    Ms. Millender-McDonald. No, I did not see the ad.
    Secretary Blackwell. We will get you the--hold your 
judgment on the complexity of the message on the telephone.
    Ms. Millender-McDonald. I am wide open to anything.
    Secretary Blackwell. We will get you that.
    Ms. Millender-McDonald. The last thing I want to say to you 
is one of you local county folks said that 30 days--in fact, it 
was Mr. Andrews or Anthony.
    Secretary Blackwell. Anthony.
    Ms. Millender-McDonald. Thirty days out there was a map 
outlining where the precinct would be and it was a change of 
venue. Three weeks from the election the misinformation was 
disseminated which means it became absolute chaos so says Mr. 
Anthony. Now, those were also problems and issues why many were 
concerned about the disenfranchisement of voters.
    Mr. Walch, do you want to answer?
    Mr. Walch. If I could, Mr. Chairman, Congresswoman. That, 
again, was a case of folks making calls. We have no idea who 
was making those calls or who they were making them to that 
were calling folks in Gahanna and telling them that they were 
now supposed to go vote in Canal Winchester. I don't know the 
specific jurisdictions. Those were not made by election 
officials or anything like that. I felt the Franklin County 
Board of Elections when this came to light that somebody was 
out making these types of phone calls, Franklin County Board of 
Elections did a very good job of getting it in the newspaper, 
that if anybody had any question of where they were to go to 
vote, they would contact the Board of Elections.
    Ms. Millender-McDonald. Mr. Walch, do you find that is 
possibly trying to disenfranchise others?
    Mr. Walch. Absolutely. No question about it but it was not 
done, again, by election officials or anybody like that. We 
have no idea who did it. Somebody with an agenda of some sort. 
That would be very hard to determine.
    Ms. Millender-McDonald. If you did not know who did it, it 
could very well have been done by some elected folks who were 
on either side of the spectrum. Let us be fair about this. You 
cannot say it was not done given that you don't know who did 
    Secretary Blackwell. Right. I can say this. In fact, until 
proven with hard evidence otherwise, we will defend the 
professionalism and the integrity of the 50,000 election 
officials and poll workers in this state. I would defend them 
to the teeth.
    Here for your record, and let me just say to the 
gentlewoman from California, California taught me the fact that 
we have an obligation to be bilingual.
    Ms. Millender-McDonald. I am sorry? An obligation to what?
    Secretary Blackwell. To be bilingual.
    Ms. Millender-McDonald. Oh, yes.
    Secretary Blackwell. Because we have the fourth highest 
migrant worker population in the country after California, 
Texas, and Florida. A lot of those folks just migrate, but some 
families stay around. The Spanish-speaking population has 
exploded in portions of our state. The outline of how every 
dollar was spent, the accounting firm, and our report to the 
controlling board and the legislature is in this document.
    We, Mr. Chairman, will make sure that you get that. We will 
also make sure that the citing for the gentlewoman from 
Cleveland will be granted to the Committee so there is no 
misunderstanding about it. I wrestled with it in 2000 because 
it was a real problem right again here in Franklin County, 
where people were forced out of the voting booth because they 
were taking too long.
    This is not a perfect science, but if you are standing in 
line and you have to be at work or you have to go to the 
babysitter and somebody is taking 15 minutes in that booth and 
that adds to your line, you now see the human dilemma. Do you 
rush that person in the booth or do you inconvenience that 
person who is ready to vote and standing in line?
    Those are the on-site decisions that local election 
officials have to make and that is what we try to do from our 
historical experience in 2000. We first try to go to the 
legislature and say, ``Look, that makes sense.'' I would 
suggest this to you, Mr. Chairman, that the DRE system is not 
necessarily a quick system so we have to understand what the 
tradeoffs are in these new systems. We have to understand that 
Ohio is becoming more and more a state with referendum or 
making the ballot. Citizens are speaking out on issues. That 
means that the ballot is going to become more complex.
    Ms. Millender-McDonald. That is a good thing.
    Secretary Blackwell. But it is going to be more complex and 
it is going to require greater voter education at the county 
level. Hopefully in 2006, we will not have the punch card 
dilemma in the state of Ohio or any place in this country.
    The Chairman. Secretary of State, if you are done, there is 
a question for Mr. Walch by the gentlelady from Cuyahoga 
County. I would conclude with a brief question to the subject 
of our hearing today, HAVA. Mr. Secretary, are there any areas 
in particular that you think we need to readdress or look at on 
HAVA, or should we let it go to the EAC for a while? Is there 
anything in general?
    Secretary Blackwell. Here is the dilemma that we have. It 
is an age-old dilemma and American federalism. You see it going 
on now with a case in Florida. Where do federal rights to 
protect human dignity and human rights and civil rights start 
versus state rights? You have this issue as to whether or not 
there is a state requirement of a VVPAT and there is no 
national requirement.
    The question is: Are you willing to take a risk on a 
machine that has gone through, and we will give it to you, the 
most comprehensive vetting process in the country but it still 
has some security issues? Does the Congress? Does this 
Committee? Any of us want to own that by putting a machine that 
has not met security concerns? If our search is for the perfect 
system, it does not exist. We have to make some decisions based 
on money that is available.
    I know why this committee has every intention to try to get 
us more money. I have to work from the fight that we have $150 
million in the bank and that cannot buy an infinite number of 
machines. It can only by a finite number of machines. The VVPAT 
increases, at minimum, the cost of the machines, as we 
understand the design right now, about 25 percent.
    If, in fact, one of the things that we want to do is to buy 
more machines to reduce the voter-to-machine ratio, then we 
don't have enough money so there has to be some understanding 
and some tradeoff on functionality of machines, vote security, 
and dollars available. You have a state government that is 
talking about a $5 billion deficit. I can't imagine with the 
prosecution of the war that you are going to get any more money 
through the Congress.
    Maybe you will. If so, more power to you because it is 
needed. I can tell you right now that the county governments, 
there might be one or two or three or four or five or six or 
seven that might tax their own citizens for more expensive 
machines. For the present you all are the only game in town and 
the question for us in charge of election administration really 
does turn on our ability to get this thing done within that 
    Mr. Chairman, you all accommodated me and I thank you for 
that. I do think for the public because this is one of the more 
outstanding issues in front of us that the Chair said you would 
hear from Pat Wolfe. Pat Wolfe has one of the most important 
responsibilities on a day-to-day basis. As you indicated, she 
came not only from your district but she came from the ranks of 
election professionals. She was a Deputy Director of a Board of 
Elections. She was a Director. I have told you in my comments 
that she is one of the most certified election professionals in 
the country. I do think that for the record we must understand 
that while I take ownership for complying with state law in the 
paperwork standard, I think you owe it to Pat to hear why she 
recommended it to me.
    The Chairman. Let us go to Pat. I think we are finished 
with the questions. Let me also thank you for being here. Also 
the $3.9 billion, just to clear that up, people ask how much 
the feds will supply. We said $3.9 billion.
    We need to fund $3.9 billion. We don't want to live the 
next five, six, seven, 10 years knowing that we gave another 
unfunded mandate. The commitment we made to all the groups is 
that we want to provide the $3.9 billion.
    Ms. Millender-McDonald. Absolutely, Mr. Chairman. Mr. 
Blackwell, you were saying that you have $105 million in the 
    Secretary Blackwell. For machines.
    Ms. Millender-McDonald. Oh, for machines.
    Secretary Blackwell. For machines. Again, the money that 
you all have given for centralized voter registration, not only 
was it needed, it was well used and we were among the leaders 
in the country in implementing that system. It will get at some 
of the concerns that you all have talked about today.
    Congresswoman Tubbs-Jones, the citing is 305----
    Ms. Tubbs-Jones. Are you reading from that, sir?
    Secretary Blackwell. Yes.
    Ms. Tubbs-Jones. Can I read with you?
    Secretary Blackwell. 305.23. ``Occupancy of voting 
    Ms. Tubbs-Jones. Can I read with you?
    Secretary Blackwell. ``Marking and return of ballot.''
    Ms. Millender-McDonald. Is there another copy?
    Secretary Blackwell. I'll give you this for the record. 
Quite naturally I want it for the record. I have a copy, I will 
read it for the record, and I am going to submit it to you. 
``No voter shall be allowed to occupy a voting compartment or 
use a voting machine more than five minutes when all other 
voting compartments or machines are in use and voters are 
waiting to occupy.''
    Ms. Tubbs-Jones. So clearly you know that provision, 
305.23, which I haven't had an opportunity to see, sir, is 
inappropriate and probably violates the civil rights of many 
voters, etc., so you chose not to enforce it.
    Secretary Blackwell. What I chose to do is to try to get 
the legislature to change the statute because I don't think it 
is fair and I do think that it runs the chance of 
disenfranchising somebody who is not necessarily illiterate, 
but a slow reader.
    Ms. Tubbs-Jones. And that is what I just said.
    Secretary Blackwell. Okay. The answer is yes, I thought it 
was very important to change it. Nobody has challenged the 
constitution--I mean, the civil rights aspect of it, so I don't 
    Ms. Tubbs-Jones. But as the Chief Elections Officer for the 
State of Ohio you surely want to bring it to the attention of 
everybody so that would never happen to a voter because we are 
concerned about it.
    Secretary Blackwell. I already did. I already did, dear. I 
already, did. I already did. It was one of the things that I 
jumped on right away after the 2000 election, believe me.
    Ms. Tubbs-Jones. Thank you, Mr. Secretary.
    Secretary Blackwell. You are most welcome. You can come 
visit me anytime.
    The Chairman. Thank you. We will move on to Pat Wolfe.

                     STATEMENT OF PAT WOLFE

    Ms. Wolfe. I will give you the background of the voter 
registration form. I have been in election work for 21 years 
and there has always been a paper weight because it is a 
permanent record. If you are registered as I have been for 
almost 27 years or more, it is a permanent record of your 
registration. It stays with the County Board of Elections so it 
must sustain during that period of time.
    One of the other things that was encountered during the 
process of all of this, not only is it a permanent record, but 
when the National Voter Registration Act occurred and designed 
then the new form that all the boards should use, it also 
required it be a self-mailer. In order to meet the United 
States Postal Service requirements for that type of product, it 
had to meet a minimum thickness which is .007 inches. In order 
to accommodate that right now it takes an 80-pound paper 
weight. The reason the postal service has that is because of 
their new processing machines. You don't have all the hand 
stamping that you used to have in the processing many years 
ago. It is now electronic. It is very high speed. It grabs 
those cards and it will destroy voter registration cards.
    It was one of the main purposes that anything that is a 
self-mailer must meet that paper weight. Unfortunately, as with 
any election, I am sure there is not a board in this state and 
our office that those that are damaged have been on the light 
weight paper have been mailed as a self-mailer and they come 
totally shredded up.
    At times we can make out a date or make out a name or maybe 
a county, but we cannot tell who that voter is. That is what is 
occurring with voter registration forms as far as damage that 
is occurring when they are mailers. As the Secretary pointed 
out, it was brought to our attention, particularly with this 
year, were all of the hand-delivered forms that were being 
done, which was very unusual.
    It became an issue with the boards and they were saying, 
``Okay, the paper forms are coming on regular weight paper but 
they are being hand delivered.'' As soon as the Secretary was 
aware of that and the issues it was creating for the boards, we 
tried to go back out with information to allow them on regular 
weight. He did come back out and said, ``Now, we will accept 
them on that weight since they are hand delivered.''
    The Chairman. Any questions? The gentlelady from 
California, any questions?
    Ms. Millender-McDonald. No. I am sorry, Mr. Chairman. I was 
just trying to see what time I have left. I have to take a 
plane out so I have about 15 minutes.
    The Chairman. Thank you. No further questions? I want to 
thank you for being here today and for sharing your testimony. 
Thank you.
    We will move on to the last panel.

                     REGISTRATION COALITION

    Ms. Millender-McDonald. Mr. Chairman, because of the time 
constraints, can we just ask these gentlemen to just give us an 
    The Chairman. Edward Foley, Professor of Law, Ohio State 
University, Moritz College of Law. Mr. Tokaji had to leave from 
Ohio State University due to the time factor. And Mark Hearne, 
National Counsel, American Center for Voting Rights, and Norman 
Robbins, Co-Coordinator, Greater Cleveland Voter Registration 
Coalition. Starting with Mr. Hearne.

                  STATEMENT OF MR. MARK HEARNE

    Mr. Hearne. Thank you, Chairman Ney and members of the 
House Administration Committee. Because of the late hour my 
testimony has been presented and, as the Ranking Member 
requested, I will give you just a brief overview of what I did 
address in that testimony and I will be available for any 
    My name is Thor Hearne. I am a principal of the Lathrop and 
Gage Law Firm, I am a long-time advocate of voter rights and an 
attorney experienced in election law. I was asked and served on 
the Missouri HAVA implementation committee which helped 
Missouri comply with HAVA and bring Missouri into compliance. I 
was asked to serve in that capacity by Secretary of State Matt 
    Today I am here in my capacity as the counsel for the 
American Center for Voting Rights. The American Center for 
Voting Rights is a nonpartisan watchdog voting rights 
organization and legal defense organization which is committed 
to defend the rights of voters and to work to increase public 
confidence in the fairness of our election process.
    I am joined in this effort by almost a dozen different Ohio 
lawyers who were involved in this past election representing 
several of this state's most prestigious law firms. During the 
conduct of the last election different events were brought to 
our attention. This report of these events has been assembled 
and we presented it to the committee. I would ask, Mr. 
Chairman, that this report be included in the record.
    The Chairman. Without objection.
    Mr. Hearne. The essence of my remarks go to the role, which 
has been much discussed today that third parties played in the 
conduct of this election. You have heard it from a number of 
different witnesses. Specifically, different panelists have 
spoken of the role these third party groups played in voter 
registration, fraud and voter intimidation. I think you 
mentioned several times, Congresswoman Millender-McDonald, the 
concern about people making phone calls to deceive people as to 
the date of the election or where their polling place was. 
Those are reprehensible acts.
    Anybody who makes an effort to have an illegal vote cast is 
disenfranchising a legal voter. Similarly, any effort to try to 
prevent anyone from voting who is entitled to do so needs to be 
very severely dealt with. We are very concerned about that. 
That was one of the issues which this report goes into.
    Mr. Chairman, the questions that I believe need to be 
addressed aren't just what individuals were involved, but what 
groups were involved. As I said, there is a massive effort in 
Ohio, as you have noted Congresswoman Millender-McDonald, this 
was because of Ohio's status as a battleground state where an 
onslaught was made against the Ohio election system by third 
parties with outside interests that are seeking to try to 
influence the election result in Ohio.
    One of these means by which that was done is the type of 
voter registration fraud that we have seen. We had a reference 
earlier today to the absolutely outrageous case which happened 
in Defiance County, Ohio, in which an individual was paid by 
the NAACP Project Vote in crack cocaine to submit more than 100 
fraudulent voter registration forms including the now infamous 
Dick Tracy, Mary Poppins, Michael Jackson, and George Foreman.
    The fraudulent voter registration effort was in many ways 
only part of the onslaught that Ohio experienced. We saw also 
the concern that has been expressed because of the litigation. 
These election lawsuits caused great chaos and confusion and 
difficulty for the election officials seeking to implement Ohio 
election law and made it more difficult to have a fair and 
honest election.
    My observation, and that of those who have submitted this 
report and contributed to this report, is that Ohio election 
officials worked very hard, both Republican and Democrat, in a 
bipartisan way to make sure Ohio citizens enjoyed a fair and 
honest election.
    The concern that we present to this Committee is that 
presented by these third party groups and their role sponsoring 
the submission of fraudulent voter registration forms and 
promoting strategic litigation seeking to remove the safeguards 
that would have prevented fraudulent registrants like Dick 
Tracy from actually casting a ballot that was counted. This 
litigation seeking to eliminate safeguards against voter fraud 
is another significant point of concern that we bring forward 
to this committee at this point. I will let the balance of my 
remarks, Mr. Chairman, stand in the prepared testimony.
    The Chairman. Thank you, Mr. Hearne. Without objection.
    Mr. Foley.
    [The statement of Mr. Hearne follows:]


    Mr. Foley. Mr. Chairman and members of the Committee, thank 
you for inviting me here today. My name is Edward Foley. I am a 
professor at the Moritz College of Law at the Ohio State 
University where I also serve as the Director of the Election 
Law program at Moritz.
    I ask that my full testimony be made part of the record 
which I understand it can be at this hour. I apologize again on 
behalf of my colleague, Dan Tokaji. If it is appropriate, can I 
ask that his written testimony be made part of the record as 
    The Chairman. Without objection. Please give our apologies 
to him.
    Mr. Foley. Thank you. The basic point of my testimony is to 
say that the election system in Ohio is not sufficiently well 
designed to withstand a close election. That was true in 2004. 
It is true currently the way the legislative drafting of Ohio 
law is today.
    Ms. Millender-McDonald. Say that again, sir.
    Mr. Foley. The election laws in Ohio are not sufficiently 
well designed to withstand a close election. This is a point 
that applies to lots of other states besides Ohio. The 
Governor's race in the state of Washington is an illustration 
of what can happen in a very close election so I don't mean to 
single out Ohio in this regard.
    The reason in my judgement why Ohio did not have a severe 
crisis in November of 2004 was simply that the outcome was not 
close enough to sufficiently test the system. A well designed 
election system in my judgement would be one that can withstand 
a close election. It is like building skyscrapers to prevent 
earthquakes. You want to build the skyscraper so that it can 
withstand a 7.0 on the Richter Scale or whatever.
    I do think we have a better system than we had in 2000. I 
think HAVA helped in that regard. It was a necessary piece of 
legislation but, in my judgement, it is not sufficient. We have 
improved our ability to withstand closer elections. If the 
margin of victory, so to speak, on election night in 2004 in 
the presidential race in Ohio had been 1 percent or half a 
percent, i.e., around 30,000 votes or 60,000 votes, I think we 
would have had a terrible situation and we wouldn't be able to 
say that the state withstood the pressures.
    Ms. Millender-McDonald. Mr. Chairman, Mr. Foley, 
notwithstanding your statement, irrespective of the number of 
votes, and this is why I said earlier we were not looking at 
overturning an election. We are talking about when one voter is 
disenfranchised and that is questionable irrespective because 
we cannot have one voter disenfranchised in any state, 
California, Ohio, or whatever. When you have a multitude of 
folks saying they were disenfranchised, it becomes an issue.
    Mr. Foley. I agree completely. We had significant problems 
in the state of Ohio in terms of disenfranchisement of 
individual voters. I think a well crafted election system would 
provide remedies and redress to individual voters for those 
denial of fundamental civil rights. I also think that there is 
a social and civic statewide interest that the system be able 
to measure whether or not a close election was accurately held 
and accurately counted.
    The problem in Ohio is that we don't have the rules yet in 
place to do that. Representative DeWine mentioned some pending 
legislation in Ohio which hopefully will address many of these 
issues. I was pleased that he itemized some matters that would 
go to that. As current law stands, that is not true and it 
primarily relates not exclusively but primarily relates to the 
issue of provisional voting. Provisional voting is very 
    It is a necessary piece of the electoral system. We do not 
have in Ohio the laws for determining as enacted by the general 
assembly for determining when to count provisional votes and 
how to avoid the necessity of too many provisional votes 
because when you have over 2 percent of all ballots casts 
provisional ballots, that means that if the margin of victory 
is within 2 percent, say a half a percent or 1 percent, that 
means the outcome of the election is going to be in doubt 
because of all the number of provisional ballots that are left 
to be counted.
    When you combine this fact with the electoral college time 
table, the so-called safe harbor date which is five weeks after 
election day, there is not the time table to handle the 
counting of provisional ballots, the evaluation of provisional 
ballots in the month of November in such time to resolve that 
and to handle any contest action so that there could be----
    Ms. Millender-McDonald. How do you find too many 
provisional ballots? How do you find that? Most of the time 
provisional ballots are given to the minority population.
    Mr. Foley. Well, every voter--I agree with statements made 
earlier today by a number of people that every individual who 
comes to the polling place should have the opportunity to 
receive a provisional ballot. That is an essential safety net 
in the process.
    I also think it is important to figure out how they could 
have received a regular ballot if they are, indeed, a 
registered voter qualified to vote because it would be better 
for the voter and better for the election system as a whole if 
they had been able to vote a regular ballot rather than a 
provisional ballot.
    Ms. Millender-McDonald. That is true but that is in the 
aftermath, not during an election time.
    Mr. Foley. Correct, but a well designed system would be one 
that avoided the problems ahead of time. Provisional ballots 
are like a fire extinguisher some have said. You want to have 
one in your house and you use it if you need to but it would be 
better to avoid the fire in the first place. This should 
probably be done as a matter of state legislation as opposed to 
new federal legislation but we do need new legislation to come 
up with a system before election day that will verify voter 
registration lists and give voters the opportunity to see why 
their names are not on the voter legislation list when they 
should be because they are registered, because they are 
    There needs to be a process in the months of September and 
October that gives them a fair opportunity to say, ``Yeah, I 
belong on the list. I was wrongly removed from the list as 
occurred in 2000.'' That should happen in September and 
October. That should not happen in November as part of the 
evaluation of the provisional voting process. All the issues 
that were teed up to have huge litigation in Ohio in '04 if it 
had been--if the margin of victory had been within the margin 
of litigation, all of those issues about eligibility could 
actually be handled ahead of time.
    They are the same set of questions that could be addressed 
in September and October and it would be better for everybody 
if they were addressed then rather than after election day when 
people know the number of votes that they need to fight over to 
flip the election. That is the situation that I have heard in 
the Governor's race in Washington where we see both sides 
saying, ``We know what numbers we need to make up in order to 
flip the result.''
    The Chairman. Let me interrupt. The gentlelady has to leave 
for a flight. I want to thank our Ranking Member for being 
    [The statements of Mr. Foley and Mr. Tokaji follow:]

    Ms. Millender-McDonald. I have two minutes to listen to Mr. 


    Mr. Robbins. What I have to say gives information that says 
that Professor Foley is right. We have data that show that of 
the 30,000 provisional ballots that were rejected in Ohio, in 
2004, thousands could have been prevented, first by proper 
registration procedures, as detailed in my written testimony.
    Second, the exercise of Ohio law requiring voters to go 
only to their home precinct led to numerous mistakes where 
people were denied their ballot. We have the data for that from 
Cuyahoga County. We polled 16 other counties and they have 
about the same type of rejection rates. Two-thirds of 
rejections were on registration issues, and nearly one-third 
were due to wrong precinct.
    Election fraud keeps coming up here. Two legal associates 
went to their databases and found that in all the elections of 
2000 and 2002 there was not a single relevant conviction in 
Ohio that went to the appeals level. Not a single one.
    In the election of 2004 I understand from data just 
obtained today there are only two cases under investigation in 
Cuyahoga County. In 10 years there were all of five cases that 
went to the appeals court level in Ohio, so do not tell us that 
election fraud is rampant unless you have got the facts to 
prove it.
    I wanted to say some other things but that is my two-minute 
part for you before you leave.
    Ms. Millender-McDonald. Well, I did not come here with the 
intent of telling you that there was election fraud.
    Mr. Robbins. No. Many other people here mentioned that. 
That is why I wanted to get this out.
    Ms. Millender-McDonald. You have to recognize that we came 
here to get the facts.
    Mr. Robbins. Right.
    Ms. Millender-McDonald. And you have outlined those to us 
affably. Mr. Chairman, thank you so much. If I didn't have to 
catch this last flight out trying to get to California, I would 
stay here.
    The Chairman. I was just told by the sergeant of arms--
actually, your staff told me this is the first congressional 
hearing in the Ohio State House on record since 1803.
    Ms. Millender-McDonald. Oh, for Heaven's sake. Should you 
not applaud this man or what?
    The Chairman. I want to thank the gentlelady for traveling 
here and for your genuine interest in our election system.
    Ms. Millender-McDonald. We have a bipartisan kiss for you.
    The Chairman. We will continue on.
    Mr. Robbins. Thank you, Mr. Chairman, and thank you for 
inviting me. I just had to get out those two points before the 
Congresswoman left. I wanted to give you the good news which is 
that thanks to HAVA 120,000 Ohioans successfully voted 
provisional ballots. I think that is a credit to Congress and 
to HAVA. I am not just the bearer of bad news. I do think we 
need to focus as well on what we still can do, as you have 
said, to address the 30,000 Ohio of provisional ballots that 
were rejected.
    In the interest of time, I will simply enumerate very 
briefly, (this is laid out in the written testimony) that 
thousands of registrations (estimated Ohio-wide) were either 
never entered--we certainly have this data for Cuyahoga 
County--or were entered incorrectly because of clerical or 
voter errors. We point out voter errors as well as clerical 
administrative errors. Also, we have evidence in Cuyahoga 
County that voters who were legitimately on the rolls were 
suddenly dropped by the time of election.
    By the way, everything I say is not imputing any ill 
intent. I believe these were purely administrative kind of 
normal errors. As Professor Foley pointed out, when you have an 
election as in Ohio that was decided by a little over 2 percent 
of the vote between the two candidates, we need to talk about 
errors that we have studied (projected Ohio-wide) which come to 
about 1 percent.
    In other words, had the election been closer, as Professor 
Foley said, to a 1 percent level, we would have been in the 
world of Florida 2000. We do need to make changes in these 
registration procedures. We do need to have more opportunity 
for voters to get educated ahead of time.
    As Professor Foley said, again, every election official 
will tell you that it is far better to prevent provisional 
ballots by proper notification procedures, corrections, etc., 
than it is to wait until the day of election. That issue, I 
think, should be addressed and the suggested reforms are there. 
I won't go through them in the interest of time. Also, as I 
mentioned before, we estimate that about 5,000 provisional 
ballots Ohio-wide were unnecessarily rejected because of the 
home precinct rule.
    We estimate based on what we have learned in Cuyahoga 
County, and as I mentioned earlier, the reasons for rejection 
of provisional ballots are about two-thirds because of 
registration issues. They were said not to be registered. 
Almost one-third were rejected because of wrong precinct.
    The Chairman. You mean the voter ended up in the wrong 
    Mr. Foley. They were disqualified because the provisional 
ballot was found to be in the wrong precinct, yes. And then 
there are a bunch of other smaller percentage reasons. They 
don't add up to 100 but you know what I mean. So are the two 
that are worthy of major focus. What was interesting is that 
the 21 other counties that we polled had about total-wise the 
same percentage as Cuyahoga did so we think our studies in 
Cuyahoga do, indeed, apply to the rest of Ohio.
    We know, for instance, that voters were in--in Cuyahoga one 
study, not by me but by another person, found that voters were 
in their correct polling place. Many, half of those rejected, 
must have been directed to the wrong precinct table. Whether 
they went there or the poll workers sent them there is another 
matter. Others received incorrect precinct location 
information. This can be fixed. Then others voted provisionally 
in despair because they simply didn't have time to go to a 
different precinct.
    I would like to say, and I have presented you a graph in 
the written testimony, that shows that the percentage of 
rejected ballots in the 88 counties is about the same in 
counties that voted more for Bush than for Kerry as they are in 
the counties that voted, the percentage of rejections.
    If you look at across that graph that I present to you, you 
will see by I that if the county was more than 50 percent, say, 
for Bush, their rejection rates county by county were about the 
same as those counties that were more than 50 percent for 
Kerry. In other words, this issue of rejection of provisional 
ballots is a bipartisan issue. Voters of both sides have been 
    That is not to say that it is equal across the population, 
however, and that is a longer story. I don't have time but it 
is laid out. It is common sense but it also fits with census 
data that there are certain subpopulations that move a lot. We 
all know that.
    Those are youth, people--this is just U.S. Government 
Census data--youth, people who earn less than $25,000 a year 
whether they live in Appalachia or Cleveland probably, and 
minorities, African-American and Hispanic. Those communities 
move more and we made an estimate that every time you move you 
are at a 6 percent risk--that is just a broad number--of not 
getting registered correctly because of everything you have to 
go through.
    The bottom line of everything I have to say, though, is 
that we still have practices that tend to disenfranchise 
legitimate voters. Reasonable and often inexpensive solutions 
are available. This is not rocket science. There are good 
solutions out there. Thirdly, fair-minded Americans want to 
include every eligible voter. All we need is the political 
will. Thank you.
    The Chairman. Thank you.
    [The statement of Mr. Robbins follows:]

    The Chairman. I have a question. I will ask one and then I 
will defer to the gentlelady. Provisional ballots. Not to beat 
a dead horse, but provisional ballots were the most important 
mechanism to stop disenfranchisement. Now I think what I am 
hearing today is that the Help America Vote Act, for the most 
part, by instituting this policy, did its job to make 
provisional ballots national.
    I know that a newspaper called me from Texas and said, 
``Aren't you worried you are going to hold up an election and 
it will take a few days to decide?'' You know what? I am going 
to take a few days to decide, and people want to know that 
their votes count, especially in a close election. I don't 
think it has to be decided by that evening at midnight that you 
have to have your winner. It is more important to take as long 
as you need to make sure that the winner is the proper winner, 
and it is done as fairly as possible.
    The goals of HAVA remain the same in Ohio as they are 
across the nation. It is the chief objective of HAVA to have 
provisional ballots work. What you are saying is that either 
there needs to be some fine tuning here within the state or do 
we need to have fine tuning federally within the state of Ohio 
and the other states? Both Mr. Robbins and Mr. Foley raised 
this issue.
    Mr. Foley. Mr. Chairman, yes. Thank you. I think we 
certainly need state legislation. There could be some fine 
tuning at the federal level for the following reason. HAVA uses 
the term eligibility under state law. In other words, states 
must count a provisional ballot towards the certified result if 
the voter is eligible under state law. That is subsection A.4 
of section 302.
    It does not use the term registered. That same section 302 
uses the word registered elsewhere so what we were seeing in 
Ohio in terms of the 6,000 lawyers who were coming to the state 
on both sides in preparation for possible litigation was to 
attempt to develop an argument, and there are arguments on both 
sides, as to whether eligible was different from registered or 
the same as registered as a matter of federal law.
    The most significant issue that we were lucky enough to 
avoid but we might have had was tens of thousands of ballots, 
provisional ballots, were in the category of individuals whose 
registration forms, these were new registrants who had 
submitted incomplete registration forms for one reason or 
another so they were not on the registration rolls.
    They had not been given an opportunity to correct or 
supplement the missing information but they were qualified 
voters under state law in the sense that they were citizens. 
They were not felons. They were over the age of 18. On one 
theory they were eligible to vote but they weren't registered 
so there are arguments on both sides of this issue and, 
frankly, plausible arguments.
    I could make a judgement as to which was the better 
argument but we were going to see litigation on both sides of 
that. That issue is out there for the next election as to how 
to interpret federal law. It is analogous to the question of 
meaning of jurisdiction. We did get the 6th Circuit decision on 
    We don't yet have case law on the meaning of eligibility 
because that just didn't come up. It didn't need to be tested. 
If there was a desire on the part of Congress to avoid possible 
litigation over HAVA, I would point to this language as a way 
to clarify the meaning of HAVA to avoid a potential litigation 
on that.
    The other point, if I might quickly say, I agree very much 
with the Chair that we can take more than just election night. 
It seems to me that the concept of certification is going to 
occur of necessity at least two or three weeks after an 
election. We have to wait for the overseas ballots to come in. 
What we saw in Ohio with over 150,000 provisional ballots 
statewide was a process that took more than just a couple of 
    We didn't have the counties reporting to the states until 
Monday, December 3rd. We didn't have statewide certification 
until--I am sorry, Friday, December 3rd. We had statewide 
certification Monday, December 6th. Safe harbor date this year 
was Tuesday, December 7th. There would have been no time 
whatsoever to have a recount or a contest had one been a 
necessity in terms of a close election.
    It took all of that five-week period simply to evaluate 
provisional ballot eligibility. If we, again, use the analogy 
of the Washington Governor's race, if the Washington Governor's 
race had been shut down on safe harbor date, December 7th, the 
Republican candidate Rossi would have been inaugurated because 
on that date he was still ahead after the first machine 
recount. Washington is still working through their process. 
They didn't finish their recount until New Year's Eve so we got 
a different inauguration as a result of that and----
    The Chairman. I think we have been through three recounts.
    Mr. Foley. So it is true that we can take more than a day 
or two but in a presidential race we have only got a total of 
five weeks and then Bush v. Gore tells us that the process has 
to stop because of the safe harbor.
    Mr. Robbins. I would like to respond to your question about 
federal versus state handling of provisional ballots. I do have 
detailed in my written testimony several suggestions that I do 
believe are more general. That is, they don't give specifics, 
which states could supply, but they would give general and 
uniform requirements across states for at least federal 
elections, such as that voters should really know whether or 
not they are registered properly.
    There should be websites and public instructors, for 
instance, at public libraries or elsewhere that would get out 
to voters long before the registration deadline whether or not 
they are effectively registered. If they are not, voters can 
take corrective action. That should be a general requirement 
and there should be a certain time limit so that this gets 
done, perhaps with assistance from HAVA for this. Secondly, for 
    The Chairman. I am sorry. Assistance in?
    Mr. Robbins. I think that there could be, for instance, 
advertisements, television ads, radio ads that would be 
generic, that could be adapted to states, that the federal 
funds could help supply and then at the local level would help 
get out the word. The EAC, for instance, could help states or 
counties devise websites to check registration or precinct. 
That way, each county would not have to reinvent the wheel to 
have an excellent website.
    The voter could go to the websites or to public libraries 
where noncomputer literate type people could go. The librarians 
could be trained to help people answer, ``Am I registered 
correctly?'' We did this in Cuyahoga County. We also put out 
radio ads when we found out that people's registrations 
sometimes were accidentally not even entered after they were 
handed into the Board of Elections.
    Our organization kept careful records of our registrations. 
Some never got on the rolls through clerical error, or were 
entered incorrectly, we found. We have all the numbers and data 
on this for Cuyahoga County. I am not saying that Cuyahoga 
County was any worse than the rest of the counties in Ohio. I 
don't believe so.
    I think those election officials in general were excellent, 
and did their job as well as they could. There should be 
federal assistance and a requirement that there be this kind of 
notification and voter education. There should be uniform 
standards. For instance, we found that voters were getting 
dropped, as I mentioned before.
    We checked through computer tracing and found that some 
people who were on the rolls as of August or in October or 
November, ended up with rejected provisional ballots because of 
being not registered. They had been on the rolls.
    The Chairman. They were rejected provisional ballots?
    Mr. Robbins. Yes. That is how we located them. We did a 
computer search starting with ballots that had been rejected 
for the reason of not being registered. We started with those 
names in Cuyahoga County. We just used the Cuyahoga County 
database. Then we asked, had those people, the same people, 
been on the roll proviously. In one case we had a registration 
list from August. In another case a registration list from late 
    We asked had they been on the regular registration list 
that was given to us by the County Board of Elections. The 
answer was that we discovered over 900 people just within 
Cuyahoga County who fit this category. That is, they had been 
on the rolls in August or October and for no reason we could 
understand were rejected--they weren't dead if they showed up 
on election day and they weren't incarcerated.
    The Chairman. Just for my information, they were given a 
provisional ballot but it wasn't counted.
    Mr. Robbins. It was rejected.
    The Chairman. They were given the actual----
    Mr. Robbins. They had voted provisionally thinking that 
they were registered because they understood that they were 
registered. They had no reason to believe they were not. Over 
900 people that we found had been on the rolls at these earlier 
times. I can go into more detail on this if you would like but 
the bottom line is that we submitted all these names and 
addresses to the County Board of Elections at Cuyahoga County.
    We never got an answer. We wanted them to check our 
information. We submitted them in November, early November. We 
have not received an answer from them. We presented this to the 
Board of Elections and they did nothing with it.
    The Chairman. Due to the time, I would like to follow up 
with you.
    Mr. Robbins. By all means, sir.
    The Chairman. Gentlelady.
    Ms. Tubbs-Jones. Mr. Chairman, I just want to again echo my 
colleagues' thanks for us having this hearing today. I have to 
say for the record, Mr. Robbins and I worked very, very hard 
before the election trying to get as many people legitimately 
registered, legitimately at the right voting place. We did 
radio and we did all kinds of things working with Mr. Michael 
Vu at the Board of Elections trying to cure. There are 
accusations flying that we weren't trying to get people to do 
legitimate things. We were really working very hard and I just 
want to compliment Mr. Robbins for all the work that he did, he 
and his organization, The Greater Cleveland Voter Registration 
Coalition, as well as Mr. Vu, the Director of the Board of 
    Our claims, our efforts have been nothing but above ground 
in an effort to assure that every vote counted and I just want 
to thank him for his testimony. I am not going to ask anymore 
questions because Mr. Robbins and I have been in so many 
meetings together that I have no questions for him. I would 
offer him or Mr. Foley or Mr. Hearme--I am sorry. I don't have 
my glasses on.
    Mr. Hearne. Hearne.
    Ms. Tubbs-Jones. Hearne. I am sorry, Mr. Hearne--an 
opportunity to offer anything. In view of the time constraints 
I would hope that it would be limited. Then I am going to give 
it back to you, Mr. Chairman.
    Mr. Robbins. Can I just say one 30-second thing as a 
follow-up to what you have asked and then I am going to yield 
to everybody else. I am a scientist and from another field but, 
nonetheless, that is why I ask these questions. That is why I 
ended up doing these studies this year because that is how I 
    What struck me today and all through the last few months is 
that there have been a ton of anecdotes and almost no research. 
I think there is a desperate need. This research we did was 
done on a shoestring with volunteers and minimum resources. 
This is not NIH research yet and look what we found. Nobody 
else seems to have been doing this kind of work. We desperately 
need research on all of these many issues that have been raised 
    For instance, what are the real causes and effects of long 
lines, how many voters were actually disenfranchised, how long 
did they take to vote. That would be one set of questions. Does 
showing an ID increase the reliability of a vote or does it 
disenfranchise people? Those are answerable questions. How many 
people truly have been convicted of election fraud? What do we 
really know about this in terms of cases and convictions? Not 
anecdotes because, of course, there will always be outrageous 
things. My appeal is that you fund research on these topics so 
you are not making legislation on the basis of allegations and 
    The Chairman. Which comes to my question. In politics that 
is called, at least in Washington, there is indeed a need to 
research our legislation.
    Mr. Hearne, you reference about the calls about the date 
and place of the election. Do you reference it in your 
    Mr. Hearne. Yes, I do. Let me first address your question, 
Mr. Chairman. The report that we submitted is exactly what Mr. 
Robbins suggested. It is facts. It is not anecdotes. It is 
absolute factual document. It has first-hand news accounts. It 
has different court cases. It has different affidavits of 
different people. It is all first-hand accounts of what 
happened during this presidential election in Ohio in 2004 
dealing with the role of a third-party organization trying to 
influence the result. In answer to your question, Mr. 
    Ms. Tubbs-Jones. Can I just ask one quick question? Those 
are parties on both the Republican and Democratic side?
    Mr. Hearne. This report concerns all the litigation. It 
comes from, as I mentioned, 12 different lawyers participated 
in this. Multiple different law firms were involved in an 
overview of the conduct of the litigation.
    Mr. Chairman, to your question, the Ranking Minority Member 
this afternoon asked, and there was some discussion, back and 
forth with Secretary Blackwell about phone calls in which 
somebody was directed to the wrong polling place and people 
were told that the election would be on the 3rd of November 
instead of the 2nd. Obviously an official effort to misinform 
voters with the intention that they not vote is a great 
concern. That actually is a factual account.
    If some people didn't know about that we have provided in 
this report the court documents documenting that situation. 
What actually happened is that there was an organization in 
Marion County, it was actually the Kerry campaign, that was 
involved in making these telephone calls. This involved 
litigation in Common Pleas Court in Marion County. Phone calls 
were made by the compaign and others. A local Democrat Party 
official in Marion County said that they shouldn't be making 
those calls. We have an affidavit from an official of that 
party attesting to this process. The judge, in fact, when the 
case was first decided was one who received the call. The fact 
that this was going on isn't just an anecdote.
    One of these deceptive phone calls was received by the 
judge who was first set to hear the case. He assigned it to 
another judge because he received the call. Then that second 
judge entered an injunction against the Kerry Campaign and 
others to prevent that kind of activity. These are the kind of 
things that are documented. That is something that did, in 
fact, happen. That is not just an urban legend here in Ohio.
    Ms. Tubbs-Jones. And you have that document from someone 
verifying that the Kerry Campaign paid for those calls?
    Mr. Hearne. Congresswoman, it is an affidavit of the Marion 
County Chairman of the Democrat Party that is part of that 
court litigation as well as the people who received the calls. 
All those documents are in the report as exhibits.
    The Chairman. I don't have any additional questions.
    Ms. Tubbs-Jones. Mr. Foley, you look like you want to say 
something so go right ahead.
    Mr. Foley. If that is okay. As an academic I would have to 
echo the notion that more research would be good. Specifically 
on the notion of what I referred to as the usage rates on 
provisional ballots. Of all the ballots in a particular state, 
absentee, regular ballots, etc., what percentage of the total 
vote ballots were provisionals?
    That is the information that has not been studied very 
well. Electionline.org did a great report that just came out a 
few days ago but they focused on some other matters. It seems 
to me that one thing that Congress may want to encourage the 
EAC to look at is why did Ohio have almost 3 percent of its 
ballots be provisional whereas other states like New Mexico and 
so forth were well under 1 percent. Pennsylvania is higher. In 
other words, the rate at which states needed to rely on 
provisional ballots varied widely across the country. It seems 
to me that is something worthy of more research.
    Ms. Tubbs-Jones. Some real quick ones. What is your 
position, Mr. Hearne, on early voting?
    Mr. Hearne. I think that is----
    Ms. Tubbs-Jones. Maybe I better not give you the 
opportunity. Do you support early voting?
    Mr. Hearne. I support whatever makes voting easier and 
    Ms. Tubbs-Jones. No-excuse registration, absentee ballots?
    Mr. Hearne. In the words of Kit Bond, it should be easy to 
vote and tough to cheat. We need to balance those two factors. 
I think that you can craft a way to respond to it.
    Ms. Tubbs-Jones. Mr. Foley, what about you?
    Mr. Foley. On early voting, yes. I would support early 
    Ms. Tubbs-Jones. I would----
    Mr. Foley. Not necessarily two weeks but some form of it.
    Ms. Tubbs-Jones. It was stated earlier that the opportunity 
that people should not--they did not support early voting 
because voters were not educated enough until the last 30 days 
of an election to be able to make a decision. You are an 
academic. What is your position on that?
    Mr. Foley. My thought is to start Saturday morning and run 
through Tuesday night. Again, I would need some more empirical 
data to support that intuition but my thought is that if you 
had four days, that would be a good balance between not doing 
it too early but giving enough people ample time to pick 
    Ms. Tubbs-Jones. The question was do you think that voters 
are not educated enough to vote earlier?
    Mr. Foley. No, I do not. I think they are informed.
    Ms. Tubbs-Jones. Mr. Robbins, I know your answer.
    Mr. Robbins. Yes, I am for early voting. I do want to point 
out that absentee voters who vote from home or a nursing home, 
can't get to either an optical scanner that gives them feedback 
or a DRE that gives them feedback. Those voters are at a 
disadvantage. In Cuyahoga County in 2000 absentee voters had a 
4 percent over/under vote rate versus the overall county rate 
of about 2 percent. Absentee voters who vote from home don't 
have the advantage of a machine with feedback of any kind, and 
are at a disadvantage and need extra education. That is a 
    The Chairman. Thank you.
    Mr. Foley. Two very quick points. One is as the centralized 
statewide registration database goes forward and it is 
implemented in '06, I think both Congress and EAC should look 
at how those lists get verified. My understanding is that 
states are in different places on this and some are in better 
place than others but however well they are doing, there has to 
be a process by which voters can say, ``Hey, a mistake was 
made. I should be on that list. I am not on that list.'' I 
don't see that yet in legislation either at the federal or 
state level. Secondly----
    The Chairman. You don't see that in legislation. You have 
    Mr. Foley. I understand the HAVA mandate is to create the 
database. I have not seen in HAVA, and correct me if I am 
wrong, a requirement that states have a process for giving 
voters the opportunity to correct mistakes in that database. I 
don't also see the states themselves putting those processes 
into place as they assemble their database.
    What I have in mind, and I would be happy to do this in any 
form that would be helpful to the Committee, is a procedure for 
notifying local boards saying, ``I think I am a registered 
voter. I submitted a form but I don't see my name on your 
list.'' If that can be done again in September and October, I 
think that would be helpful but I don't see those procedures in 
state law or in federal law.
    The Chairman. We researched some of this with Democrat and 
Republican staff. We went over and talked to seasoned voters 
and found out, some interesting things. For example, the state 
of Virginia sends you an e-mail, if you have e-mail which 
contains a ballot.
    Then you print it out in your office or the American 
Embassy. You fill it out and then mail it back. We can look 
towards the scientific side, the research side, the statistical 
side. Even though today we can't go over every aspect, I think 
it is well worth it to look at the database and how it is going 
to be implemented, which I believe addresses your point. We can 
put it in place under the law but how is it actually carried 
out? The centralized database is probably the more statistical 
part of the bill.
    Mr. Foley. Correct. Related to that, as I understand it, 
the provisional voting idea was an important idea in response 
to inaccurate purging. What we saw, unfortunately, in Ohio was 
uncertainty as to what list local officials should go back to 
to make sure people weren't purged. Some counties were simply 
going to their most current list and saying, ``If you are not 
on that list, your provisional ballot doesn't count.''
    In other words, there was lack of clarity as to what 
mechanism needed to take place when you took in that 
provisional ballot. How do you check to see whether a purge had 
occurred or not? Again, as we implement the databases, I think 
technologically one thing that can happen is there could be a 
requirement that the database preserve all historical records 
so that if you were ever on the list, that is maintained so 
even if subsequently someone is removed from the roles, there 
is an historical electronic archive of previous iterations of 
the statewide database. That would be a good measure.
    The Chairman. We seek the advice of the community. Tomorrow 
morning, if you use your ATM, you can bet that your bank knows 
your transaction amount to the penny. Not two cents or three. 
They know to the penny, and eventually you can do it with the 
voters to make sure that they know it is fair and accurate.
    Ms. Tubbs-Jones. All you have to do is send this one little 
e-mail to Iraq and Afghanistan to guarantee folks.
    The Chairman. One point on that. I can remember people 
saying, ``You've got to be kidding. $3.9 billion is too much 
money.'' For example, we spent $5 billion on overseas 
democracy. I have no quibble with that and my colleague doesn't 
either. It helps build democracy.
    If we can spend $5 billion over there, we can spend $3.9 
billion here. I don't think it is too much. People down the 
road will feel good about this, and have the confidence that 
their vote was fair and counted. As Kit Bond said, easier to 
vote and harder to cheat.
    With that I want to thank our----
    Ms. Tubbs-Jones. Before we close, Mr. Chairman, again, on 
behalf of both the Republican and Democratic side, we want to 
thank you for hosting this hearing and giving us an opportunity 
to begin query and having fun with us but being serious as well 
so thank you, Mr. Chairman. We really appreciate it.
    The Chairman. I want to thank our Ranking Member, but also 
my colleague from Cuyahoga County, Stephanie Tubbs Jones, who 
has also participated in D.C. with us on these issues. I think 
it is a good healthy thing that has happened here today. I 
appreciate all of your time. I ask for unanimous consent that 
members and witnesses have seven legislative days to submit 
material to the record, for those statements and materials to 
be entered in the appropriate place in the record. Without 
objection, the material will be entered.
    I asked for unanimous consent that the staff be authorized 
to make technical and confirming changes on all matters 
considered by the Committee for this hearing without objection. 
So ordered. Having completed our business for today, I want to 
thank you again, the last panel, for being so patient. This 
hearing is adjourned. Thank you.
    [Whereupon, at 6:35 p.m. the committee adjourned.]