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

    VOTING RIGHTS ACT: SECTIONS 6 AND 8--THE FEDERAL EXAMINER AND OBSERVER
                                    PROGRAM

    =======================================================================

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                   __________

                               NOVEMBER 15, 2005

                                   __________

                               Serial No. 109-77

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

                                     ______

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                           COMMITTEE ON THE JUDICIARY

                F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
    HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
    HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
    LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
    ELTON GALLEGLY, California           JERROLD NADLER, New York
    BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
    STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
    DANIEL E. LUNGREN, California        ZOE LOFGREN, California
    WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
    CHRIS CANNON, Utah                   MAXINE WATERS, California
    SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
    BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
    JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
    MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
    RIC KELLER, Florida                  ADAM B. SCHIFF, California
    DARRELL ISSA, California             LINDA T. SANCHEZ, California
    JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
    MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
    J. RANDY FORBES, Virginia
    STEVE KING, Iowa
    TOM FEENEY, Florida
    TRENT FRANKS, Arizona
    LOUIE GOHMERT, Texas

                 Philip G. Kiko, General Counsel-Chief of Staff
                   Perry H. Apelbaum, Minority Chief Counsel
                                     ------

                        Subcommittee on the Constitution

                          STEVE CHABOT, Ohio, Chairman

    TRENT FRANKS, Arizona                JERROLD NADLER, New York
    WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
    SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
    JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
    MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland
    STEVE KING, Iowa
    TOM FEENEY, Florida

                         Paul B. Taylor, Chief Counsel

                          E. Stewart Jeffries, Counsel

                              Hilary Funk, Counsel

                     Kimberly Betz, Full Committee Counsel

               David Lachmann, Minority Professional Staff Member

                                C O N T E N T S

                                  ----------

                               NOVEMBER 15, 2005

                               OPENING STATEMENT

                                                                       Page
    The Honorable Steve Chabot, a Representative in Congress from the
      State of Ohio, and Chairman, Subcommittee on the Constitution..     1
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, Ranking Member, Committee on the
      Judiciary, and Member, Subcommittee on the Constitution........     2
    The Honorable Robert C. Scott, a Representative in Congress from
      the State of Virginia, and Member, Subcommittee on the
      Constitution...................................................     4
    The Honorable Melvin L. Watt, a Representative in Congress from
      the State of North Carolina, and Member, Subcommittee on the
      Constitution...................................................     5
    The Honorable David Scott, a Representative in Congress from the
      State of Georgia...............................................     7

                                   WITNESSES

    Ms. Nancy Randa, Deputy Associate Director for Human Resources
      Products and Services, U.S. Office of Personnel Management
      Oral Testimony.................................................     9
      Prepared Statement.............................................    10
    Ms. Penny L. Pew, Elections Director, Apache County, Arizona
      Oral Testimony.................................................    12
      Prepared Statement.............................................    13
    Mr. Barry H. Weinberg, former Deputy Chief and Acting Chief,
      Voting Section, Civil Rights Division, U.S. Department of
      Justice
      Oral Testimony.................................................    17
      Prepared Statement.............................................    20

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John Conyers, Jr. a
      Representative in Congress from the State if Michigan and
      Member, Subcommittee on the Constitution.......................    63
    Appendix to the Statement of Penny Pew: Election Materials.......    65
    Appendix to the Statement of Penny Pew: Prepared Statement of
      Penny Pew submitted to the National Commission on the Voting
      Rights Act.....................................................   145
    Appendix to the Statement of Barry Weinberg: Problems in
      America's Polling Places: How They Can Be Stopped; Temple
      Political and Civil Rights Law Review, Spring 2002.............   146
    Prepared Statement of the Honorable Bradley J. Schlozman,
      Principal Deputy Assistant Attorney General, Civil Rights
      Division, Department of Justice, Concerning The Voting Rights
      Act: Sections 6 and 8, Federal Examiner and Observer Programs..   194
    Inserted into the Record by Congressman Watt during the hearing:
      Letter from William Jenkins, Director, Homeland Security and
      Justice Issues, Government Accountability Office, to the
      Honorables Joseph Lieberman, Henry Wazman, and John Conyers,
      Jr. regarding the Department of Justice's activities to address
      past election-related voting irregularities....................   197

    VOTING RIGHTS ACT: SECTIONS 6 AND 8--THE FEDERAL EXAMINER AND OBSERVER
                                    PROGRAM

                                  ----------

                           TUESDAY, NOVEMBER 15, 2005

                      House of Representatives,
                      Subcommittee on the Constitution,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 12:38 p.m., in
    Room 2141, Rayburn House Office Building, the Honorable Steve
    Chabot (Chair of the Subcommittee) presiding.
        Mr. Chabot. Every Chairman should have a gavel when it was
    missing. So now we have it, we can get started.
        This is the Subcommittee on the Constitution. I'm Steve
    Chabot, the Chairman.
        I want to thank you all for attending this afternoon. This
    is the Subcommittee, as I said, on the Constitution, and the
    ninth in a series of hearings this Committee has held in the
    last several weeks examining the impact and effectiveness of
    the Voting Rights Act.
        I'd like to thank all my colleagues again for their
    assistance in making each of these hearings informative and
    thought provoking, as we continue our efforts to look closely
    at those provisions of the Voting Rights Act which are set to
    expire in 2007.
        Today, we will focus our attention on sections 6, 7, and 8
    of the Voting Rights Act, each of which is set, as I said, to
    expire in 2 years, in 2007, unless Congress acts otherwise and
    reauthorizes.
        Section 6 authorizes the Attorney General to send Federal
    examiners to cover jurisdictions to register new voters.
        Section 7 outlines the procedures to be followed by these
    examiners when registering new voters.
        And section 8 authorizes the Attorney General to send
    Federal observers into these covered jurisdictions to ensure
    that the rights afforded by Federal law are protected.
        We have another distinguished panel of witnesses with us
    here this afternoon, and we want to thank them all for being
    here, and we look very much forward to their testimony.
        The assistance provided by Federal examiners and observers
    in the election process has played an instrumental role in
    increasing minority voter participation.
        After almost a century of racial discrimination in voting
    and several unsuccessful attempts to curtail these pervasive
    practices, Congress enacted the Voting Rights Act back in 1965.
        Among the many different tools provided by Congress is the
    intervention of Federal examiners and observers. This Federal
    oversight was deemed necessary as result of the failure on the
    part of covered jurisdictions to openly accept minority voters
    in the political process.
        In the initial years after enactment of the Voting Rights
    Act, Federal examiners and observers were used in record
    numbers. The impact these provisions have had on minority
    voters is reflected in the increasing number of minority voters
    registering to vote.
        Over 112,000 minority voters have been registered by
    Federal examiners over the life of the Voting Rights Act.
        And while the number of examiners sent to jurisdictions has
    decreased in recent years, the importance of Federal oversight
    in protecting minority voters has not diminished.
        In the last 25 years, Federal observers have been sent to
    over 98 covered counties to ensure that minority voters are
    protected.
        In fact, the Department of Justice just last week sent
    Federal observers to 16 jurisdictions in 7 States to monitor
    elections, to ensure compliance with the Voting Rights Act and
    other Federal voting and election statutes.
        Today, we will examine the impact that Federal examiners
    and observers have had on increasing minority participation in
    the political process and the continued need for these
    provisions in the future.
        Again, we look forward to hearing from all our witnesses
    here this afternoon.
        And at this time, I will recognize the distinguished
    Ranking Member of the full Committee, Mr. Conyers of Michigan,
    if he would like to make an opening statement.
        Mr. Conyers. Thank you, Mr. Chairman.
        Before I begin, could I ask the Chair a question about the
    absence or withdrawal of the Department of Justice witness that
    was scheduled to have been here?
        Mr. Chabot. Yes. If the gentleman will yield?
        Mr. Conyers. And I'll yield.
        Mr. Chabot. We've been informed, and, in fact, I would note
    that the Department of Justice was scheduled to be our fourth
    witness today, but due to a scheduling conflict, they couldn't
    be here. They have submitted written testimony, and it's been
    made available to us, and they've offered to make themselves
    available at a later date, and to respond to any written
    questions that this Committee might have.
        Mr. Conyers. Thank you very much for making that clear
    because their presence is very critical in how many of us will
    proceed under these--this very important consideration.
        Mr. Chabot. Would the gentleman yield one more time,
    please?
        Mr. Conyers. Of course.
        Mr. Chabot. I thank the gentleman for yielding. I might
    note that Mr. Weinberg is a former attorney with the Justice
    Department, and may be able to answer some of the questions
    that would be answered if the Justice Department were here.
        But again, they--we will be able to provide those questions
    to them in writing and maybe an appearance down the road as
    well.
        Thank you.
        Mr. Conyers. Oh, you're more than welcome.
        This is a very important part of extending the Voting
    Rights Act of 1965, and I'm very interested from hearing--in
    hearing from the witnesses about the relationships between the
    examiners and the observers.
        We're--it seems to me, frankly, Mr. Chairman and Members of
    the Committee, that we may need to resort to a little rewriting
    of this section to clear up some parts of it.
        The one thing I would love to hear commented on and maybe
    we'll do it in the questions is that we have a sent Members in
    for--we have sent either observers--people have been certified
    to come in to monitor elections, but it's usually about
    language barriers. It's not about racial exclusion or
    harassment or coercion or discouraging the vote.
        For example, in the city--my city of Hamtramck, Michigan,
    in which there were some problems with Arab-Americans being
    harassed at the polls, and they--we sent in Federal observers,
    but in many parts of the country, where we really need somebody
    looking at some very fundamental questions, which leave it
    unnecessary for me to even discuss why we have to justify this
    extending and improving on these provisions 3 and 6 and 8.
    Every election cycle in our offices, we field numerous
    complaints involving election day mischief and worse from
    around the country--plenty of it.
        As a matter of fact, we should write a report about it or
    Mr. Weinberg or Ms. Pew should write a book about it.
    Baltimore, 2002--intentions to confuse and suppress the voter
    turnout, where flyers misstated the date of the election and
    implied that overdue parking tickets, moving violations, behind
    in your rent were qualifications that could preclude you being
    allowed to vote.
        Kentucky gubernatorial election, 2003--59 precincts with
    significant African-American populations targeted for vote
    challenges by local campaign officials.
        May I have an additional minute, sir?
        Mr. Chabot. Without objection, so ordered.
        Mr. Conyers. Thank you.
        In North Carolina, in 1990, the Department sued over
    postcards mailed to African-American voters designed to
    discourage them from coming to polls by providing
    misinformation about the voter requirements.
        They finally--there was a consent decree.
        Now, the failure--one of the problems that were corrected
    from 1957 to 1965 is that we were giving retrospective relief
    for interference with the right to vote.
        What we needed was prospective relief, and that's what's up
    for renewal now, and I hope we can gather a hardcore
    congressional group of Members that realize that that's the
    heart of this--one of the hearts of the hearing that we're
    holding here today.
        We've had an election day last week. The Department sent
    Federal observers and personnel into 16 jurisdictions in 7
    States.
        In 2004, the Department coordinated and sent 1,463 Federal
    observers and 533 Department personnel to monitor 163 elections
    in 105 jurisdictions and 29 States.
        So we're here about something that is really fundamental to
    improving the voter process in America.
        I cannot get it out of my head that we have had two
    presidential elections in a row where one State in each
    election determined the outcome of the election, and each time
    more election violations and accusations of violations occurred
    in they State that provided the winner of the election with the
    presidency.
        And so I ask unanimous consent to revise and extend my
    remarks and to include it in the record.
        Mr. Chabot. The gentleman's time has expired, and so
    ordered.
        I would just note--the Chairman would just take a very
    brief not necessarily rebuttal, but I would just note that in
    the most recent election, the State that the gentleman was
    referring to happens to be my State, the State of Ohio, and
    there were many accusations of problems at polling places and
    things, and study after study that's been done really indicated
    that it was a fair election and that the vote was accurate; and
    I believe it was 118,000 was the margin in Ohio. So it wasn't
    like Florida, where there were 500 or something that made the
    difference.
        So, for the record, Mr. Conyers.
        Mr. Conyers. Well, for the record----
        Mr. Chabot. Yeah.
        Mr. Conyers. --there is a book out called ``What Went Wrong
    in Ohio,'' based on a report by the minority staff of the
    Judiciary Committee that has not been rebutted to my knowledge.
        Mr. Chabot. Yeah. I would just note that I believe that's
    the minority's opinion on that particular book and isn't--so
    I'd. But we could get on and on about that. But I--the one
    thing we do agree on is that the Voting Rights Act is very
    important and has been significant in protecting the rights to
    vote for many people in this country, and we're looking
    seriously at reauthorizing this, and so I think we agree on
    most of what the gentleman said in his opening statement.
        And so I thank the gentleman for that.
        Mr. Conyers. Thank you, Mr. Chairman.
        Mr. Chabot. The gentleman from Virginia, Mr. Scott, is
    recognized for five minutes.
        Mr. Scott of Virginia. Thank you, Mr. Chairman.
        Mr. Chairman, sections 6 through 8 of the Voting Rights Act
    contain the Federal Examiner and Observer provisions of the
    act, which allow Federal employees to observe polling place and
    voter counting activities and serve to document and deter
    inappropriate conduct.
        Although these provisions are permanent, the primary way
    these provisions are utilized is through the section five
    preclearance coverage formula, which is set to expire in August
    2007.
        Federal observers have been deployed in every year, just
    about every year. From 1966 through December 8, 2003, almost
    25,000 observers have been deployed in approximately a thousand
    elections.
        While observer coverage in the early years was almost
    exclusively designed to protect the rights of Black voters in
    the Deep South, in recent years it has been approximately a 50-
    50 split between traditional election coverage and election
    coverage designed to protect the rights of minority language
    voters in various areas of the country.
        In addition, the Department has routinely deployed its own
    civil rights personnel to serve as civil rights monitors in
    jurisdictions not covered by the Voting Rights Act.
        During the 2004 election, the Department of Justice sent
    approximately 840 Federal observers and more than 250 Civil
    Rights Division personnel to 86 jurisdictions in 25 States to
    monitor general election activities to ensure voters were free
    from harassment, intimidation, and other illegal activity.
        Over the last 40 years, the nature of the Federal examiner
    has changed. The examiner now usually plays a more
    administrative role; whereas, the observer's role has become
    more central to protecting voting rights.
        Observers monitor elections in any certified jurisdiction
    for the purpose of observing whether eligible voters are
    allowed to vote, and whether votes cast by eligible voters are
    properly being counted.
        Observers essentially serve as witnesses for what occurs in
    the polling place and during the counting of the vote.
        In the case U.S. v. Berks County, that case shows the value
    of observers in documenting problems within the polls. The
    United States won the case, based upon the court-appointed
    observers' substantial evidence of hostile and unequal
    treatment of Hispanic and Spanish-speaking voters by polling
    officials.
        The Berks case also illustrates why observers have a
    deterrent effect, because poll workers, election officials, and
    others involved in the election process know that their actions
    are being observed and recorded, some individuals are going to
    be discouraged from engaging in inappropriate behavior.
        Sections 6 and 8 and other expiring provisions are
    essential to ensuring the fairness of our political process and
    equal opportunity for minorities in American politics.
        It's imperative that we work together to strengthen these
    provisions, and I look forward to the testimony of our
    witnesses.
        I yield back.
        Mr. Chabot. I thank the gentleman for yielding back.
        The gentleman from North Carolina, Mr. Watt, is recognized
    for the purpose of making an opening statement.
        Mr. Watt. Thank you, Mr. Chairman, and thank the Chairman
    again and the Chairman of the full Committee for this series of
    hearings.
        I think this is the ninth one we've had on the
    reauthorization.
        Mr. Chabot. That's correct.
        Mr. Watt. And I think we're getting close to building the
    record that we need related to the expiring provisions and the
    necessity for their extension.
        Today's hearing turns to the last set of provisions
    scheduled to expire in 2007. Although much of the media
    coverage and public interest in the Voting Rights Act has been
    focused largely on section 5 and section 203, the Federal
    Examiner and Observer Program has historically played an
    integral role in ensuring that voting rights are actually
    shielded from Election Day abuses and the violation of those
    rights are properly documented.
        While there is some question about the necessity of the
    Federal examiner provisions going forward, the role and
    continued need of well-trained Federal observers assigned to
    monitor elections in certified jurisdictions is absolutely
    critical.
        The value to the average citizen of a Federal presence at
    the polls in those jurisdictions with a pattern of voting
    irregularities and infractions is simply incalculable.
        Voters feel more at ease and confident when the Government
    places a high priority on election monitoring.
        Conversely, those who might otherwise commit fraud or
    harass or intimidate eligible voters are deterred from doing
    so.
        Despite significant gains in preventing blatant acts of
    discrimination at the polls, intentional efforts to undermine
    racial and language minority voters persist.
        Last week the Voting Rights Initiative of the University of
    Michigan Law School issued its final report entitled
    ``Documenting Discrimination in Voting: Judicial Findings Under
    Section 2 of the Voting Rights Act Since 1982.'' And I'm going
    to ask unanimous consent that we enter this report in the
    record, Mr. Chairman.
        Mr. Chabot. Without objection, so ordered.
        Mr. Watt. Combing through the over 700 court cases, the
    researchers document repeated and sometimes egregious evidence
    of intentional discrimination against Native Americans, elderly
    African-Americans, and others on election day.
        Just last year, at the request of Ranking Member Conyers,
    Congressman Waxman and Senator Lieberman, the GAO reviewed the
    Department of Justice's activities to address--acknowledged
    election-related voting irregularities, including conduct
    prohibited by the Voting Rights Act in Florida and other
    jurisdictions during Election 2000, and I would ask unanimous
    consent that that report be entered into the record also.
        Mr. Chabot. Without objection, also so ordered.
        Mr. Watt. Although a DOJ witness could not be here today,
    or at least not a current employee of the DOJ, I would
    encourage the continued deployment of DOJ attorneys and other
    professionals on a judicious and non-political basis to
    supplement, but not to replace the work of statutorily
    authorized observers.
        Federal observers have statutory rights to access not
    shared by Department of Justice attorneys.
        It is important that this access to the polling place be
    preserved to guarantee every voter's ability to cast their vote
    and to have their votes counted free of unlawful
    discrimination.
        Finally, Mr. Chairman, one final thing I want to deal
    with--that's--really we haven't had a hearing on yet, but
    there's been some testimony about over the course of our
    hearings, and that's we need to make sure that the award of
    expert fees to prevailing parties in litigation is put into the
    reauthorization.
        The fees of experts in these cases are just--have become a
    real burden for everybody. I understand that prior to the 1982
    reauthorization, there was an agreement to put this provision
    in, and because of the crunch at the last minute, the provision
    actually just never got put into the law.
        And I don't think there's really any controversy about it.
    Prior testimony has already established the incredible expense
    imposed on bona fide victims of voting rights violations to
    assemble the necessary evidence to sustain their burden of
    proof in a private action.
        By allowing expert fees to prevail in parties, we would
    bring the Voting Rights Act into conformity with other Civil
    Rights legislation and promote the continued partnership
    between individual and Government enforcement that has made the
    act the success it is today.
        I thank you, Mr. Chairman, and yield back and look forward
    to the witnesses; welcome them and thank them for being here.
        Mr. Chabot. I thank the gentleman. The gentleman's time has
    expired.
        The Chair would also note the presence of a distinguished
    Member of the House, Congressman David Scott of Georgia, whose
    attendance has been exemplary at these hearings. Not actually a
    Member of this Committee, but I'd ask unanimous consent that he
    be recognized and have all the rights of a Committee Member
    today and be allowed to make an opening statement should he
    chose to do so, and also be allowed to question witnesses.
        The gentleman is recognized, if he'd like to make an
    opening statement.
        Mr. Scott of Georgia. Well, thank you, Mr. Chairman.
        I would just like to associate my remarks with my
    distinguished Democratic colleagues who've spoken eloquently on
    the statements so far in the interest of time.
        But there is--and my Republican colleague, the Chairman,
    quite naturally. Thank you, Mr. Chairman. I also recognize you
    first.
        If it were not for your graciousness, I wouldn't be here
    with this excellent opportunity.
        Mr. Chabot. Thank you. I was listening. Thank you.
        Mr. Scott of Georgia. Well, I may add, I had already gone
    over and shaked [sic.] his hand and thanked him personally.
        Mr. Watt. I just didn't want him to engage in that
    oversight, Mr. Chairman.
        Mr. Chabot. When all this goodwill is over. Yeah.
        Mr. Scott of Georgia. And only one point that I certainly
    want to--a point that I think we would--I'm interested in is
    the why Federal observers are--you think they are--Mr.
    Weinberg, especially I was reading over your testimony earlier
    today--and your point about why Federal observers are
    necessary, but Federal examiners are not, certainly begs for
    some good discussion. So I look forward to that.
        Thank you, Mr. Chairman.
        Mr. Chabot. Thank you. The gentleman's time has expired.
        I'd like to--before I introduce the panel--note that
    without objection all Members will have 5 legislative days to
    submit additional materials for the hearing record.
        And I'd now like to introduce our very distinguished panel
    of witnesses here this afternoon. Our first witness will be Ms.
    Nancy Randa, Deputy Associate Director for Talent Services,
    Human Resources, Products, and Services Division, at the U.S.
    Department of Personnel Management.
        As Deputy Associate Director, Ms. Randa oversees the
    services and support provided to Federal agencies in staffing
    and human resources, organizational and individual assessment,
    training and management assistance, and technology services.
        Included in her responsibilities is overseeing OPM's Voting
    Rights Program, which deploys observers to designated polling
    sites to monitor elections.
        Prior to serving as Deputy Associate Director, Ms. Randa
    served as Acting Associate Director for Merit Systems Oversight
    and Effectiveness, where she spearheaded a variety of projects
    that support human capital management and accountability.
        Ms. Randa is an active supporter of human resources
    workforce transformation efforts, working on HR curriculum
    efforts at the graduate school operated out of the U.S.
    Department of Agriculture, and with the Human Resources
    Management Council.
        We welcome you here this afternoon, Ms. Randa.
        Our second witness will be Ms. Penny Pew.
        Ms. Pew has served as Apache County Elections Director
    since 2001. She has been a certified Elections Officer with the
    Arizona Secretary of State's Office since 2001, as well as
    Arizona's League of Cities and Towns.
        In 2003, Ms. Pew successfully completed the Southwest
    Leadership Program for Local and State Government from the
    University of Arizona Institute for Public Policy and
    Management.
        In 2004, Ms. Pew partnered with the Navajo Nation Office of
    the Speaker on the successful Get Out the Vote 2004 Campaign.
    She most recently served as a panelist for the National
    Commission on the Voting Rights Act. We welcome you here this
    afternoon, Ms. Pew.
        And our third and final witness will be Mr. Barry Weinberg.
        Mr. Weinberg is a former Deputy Chief and Acting Chief of
    the Voting Section at the U.S. Department of Justice.
        From 1965 until 2000, Mr. Weinberg served in many key roles
    at the Department, including supervising investigations and
    litigation under the Voting Rights Act.
        In December 1999, the Barry H. Weinberg Award was
    established by the Department of Justice, recognizing an
    individual who has made an outstanding contribution to the
    effectiveness of the Federal Observer Program for monitoring
    polling place procedures under the Voting Rights Act.
        Mr. Weinberg is the author of numerous articles on the
    Voting Rights Act, including a 2002 law review article, co-
    authored with Lynne Utrecht, titled ``Problems in America's
    Polling Places: How They Can be Stopped.''
        Welcome, Mr. Weinberg, as well, as all the panelists. And I
    would--as I had noted before, the--for the record, the
    Department of Justice was scheduled to be our fourth witness
    here today, but due to a scheduling conflict, they were unable
    to be here.
        The Department of Justice has submitted written testimony,
    which has been made available to us, and has offered to make
    themselves available at a later date and to respond to any
    written questions that this Committee might have, and those
    could be submitted to the Department of Justice.
        A couple of other items I just need to mention is some of
    you have testified before; some of you may not be aware of
    this. We have what's called a 5 minute rule. There are two sets
    of lights there. They'll go for 5 minutes. For 4 minutes,
    they'll be green. When there's 1 minute left, it'll turn
    yellow, and red light will come on when your 5 minutes is up.
        I won't gavel you down immediately at that time, but we'd
    ask within reason to try to stay within that 5 minutes as much
    as possible.
        It's also the practice of the Committee to swear in all
    witnesses appearing before it, so if you wouldn't mind, if you
    could each stand and raise your right hand.
        [Witnesses sworn.]
        Mr. Chabot. Each witness has indicated in the affirmative.
    Thank you.
        And we'll now hear from our first witness. Ms. Randa,
    you're recognized for 5 minutes.

     TESTIMONY OF NANCY RANDA, DEPUTY ASSOCIATE DIRECTOR FOR HUMAN
       RESOURCES PRODUCTS AND SERVICES, U.S. OFFICE OF PERSONNEL
                               MANAGEMENT

        Ms. Randa. Thank you, Mr. Chairman and Members of the
    Subcommittee. I am pleased to be here this afternoon to discuss
    the Office of Personnel Management's role in carrying out
    sections of the Voting Rights Act of 1965.
        OPM works closely with the Department of Justice,
    specifically the Voting Section of the Civil Rights Division to
    assign voting rights observers to locations designated by the
    Department.
        OPM's ultimate success with this program depends on its
    ability to recruit, train, deploy, and supervise observers of
    Election Day procedures.
        Under the Voting Rights Act, at the request of a U.S.
    District Court or the U.S. Attorney General, OPM provides for
    appointment of 1: examiners, to examine and register qualified
    individuals denied the right to register in covered
    jurisdictions; 2: hearing officers, to entertain challenges to
    the actions of examiners; 3: support staff; and 4: observers to
    monitor actual polling places on Election Day and the
    subsequent tabulation of the votes.
        Since 1966, we have deployed over 26,000 observers in a
    total of 22 States. Prior to 1976, we sent observers to only
    five States--Alabama, Georgia, Louisiana, Mississippi, and
    South Carolina.
        However, in the past 10 years, as more jurisdictions have
    been subject to coverage under the Minority Language provisions
    of the act, we sent the next largest number of observers after
    Mississippi to these States: Arizona, New Mexico, New Jersey,
    California, Michigan, Pennsylvania, and New York.
        Voting Rights observers serve as neutral monitors,
    witnesses, who do not intervene if there are violations. They
    only watch, listen, and record events that occur at particular
    polling sites on election days.
        At present, we have a pool of approximately 900
    intermittent employees, called into service on an as needed
    basis, who come from all walks of life, including Federal
    employees and retirees, students, and other public and private
    sector workers.
        We schedule 1-day classroom sessions for observers to
    provide in-depth training on the overall process, on specific
    observer responsibilities, and on administrative issues.
        We also provide refresher training during pre-briefing
    sessions on the day before the election. Whenever possible, we
    do role playing in the training to demonstrate to the observers
    the proper way of handling themselves at the polling sites.
        In brief, the deployment process works this way: Prior to
    an election, the Department of Justice notifies OPM as to when
    and where it will need observers.
        OPM then assigns a Voting Rights Coordinator to work with
    Justice's lead attorney to allocate observers to polling sites,
    coordinate logistics, and assign a captain to oversee the
    execution of the deployment.
        The day before an election, a Department attorney briefs
    the observers, specifying issues of concern and activities to
    be reported. Throughout the day, observers report such
    information to the captain, who passes this information to a
    Department attorney. Only the Department of Justice determines
    if intervention is necessary, and only the Department of
    Justice takes action.
        Toward the end of election day, the attorney determines
    when to call back the observers. The observers then return to
    their staging site and prepare a written report, one for each
    polling site, to document what they saw and heard throughout
    the day.
        This is the bulk of what OPM does. But the statute also
    calls on OPM to have an examiner for each jurisdiction where
    observers will be assigned.
        Originally, these examiners prepared a Federally-maintained
    list of voters who were denied the right to register in covered
    jurisdictions and they received calls from citizens regarding
    election day issues or incidents.
        This function, however, has changed over the years. No
    voters have been added to the Federally-maintained list since
    1983, as registration barriers have largely been eliminated.
        Moreover, since there have been no challenges to
    registration decisions in the past 30 years, there has been no
    need for hearing officers.
        Also due to advances in technology, toll-free numbers now
    allow citizens to report incidents and information to these
    examiners remotely in real time and 24 hours a day during the
    election period.
        Under the act, OPM is required to publish voter
    registration qualifications of each covered State in the
    Federal Register, as well as to publish the list of examiners,
    places for voter registration, and examiner assignments.
        However, these publications requirements may no longer be
    necessary since they are now covered nationwide by provisions
    of the Help America Vote Act and the National Voter
    Registration Act, which set out Federal standards for voter
    registration.
        That concludes my testimony, and I would be pleased to
    respond to any questions the Subcommittee may have.
        [The prepared statement of Ms. Randa follows:]

                       Prepared Statement of Nancy Randa

        Mr. Chairman and Members of the Subcommittee:
        I am pleased to be here this afternoon to discuss the Office of
    Personnel Management's (OPM) role in carrying out sections 3, 6, 7, 8,
    9, and 12 of the Voting Rights Act of 1965 (the Act).
        Currently, implementation of the Voting Rights Act at OPM is
    managed by the Division for Human Resources Products and Services in
    the Center for Talent Services. This office works closely with the
    Department of Justice (the Department), specifically the Voting Section
    of the Civil Rights Division, to assign Voting Rights observers to
    locations designated by the Department. OPM's ultimate success with
    this program depends on its ability to recruit, train, deploy, and
    supervise observers of election-day procedures.
        With regard to responsibilities assigned to OPM (prior to 1979, the
    U.S. Civil Service Commission), the Voting Rights Act provides, at the
    request of a U.S. District Court or the Attorney General of the United
    States, for the appointment of examiners to interview, ascertain
    qualifications, and register, if appropriate, qualified individuals
    denied the right to register by State and local officials in covered
    jurisdictions; hearing officers to entertain appeals and challenges to
    the actions of examiners; support staff as necessary to allow these
    individuals to perform their responsibilities; and observers to monitor
    actual polling places on election day and the subsequent tabulation of
    the votes. These provisions have not materially changed since initial
    passage of the Act in 1965. The Voting Rights Act also requires OPM to
    promulgate regulations on procedures for challenging the actions of
    examiners and to publish in the Federal Register individual State
    registration qualifications.
        Since 1966, we have deployed over 26,000 observers in a total of 22
    States. Prior to 1976, we sent observers to only 5 States: Alabama,
    Georgia, Louisiana, Mississippi, and South Carolina. In the past 10
    years, as more jurisdictions have been subject to coverage under the
    minority language provisions of the Act, we sent the next largest
    number of observers, after Mississippi, to these States (in this
    order): Arizona, New Mexico, New Jersey, California, Michigan,
    Pennsylvania, and New York.
        Voting Rights observers serve as neutral monitors, who do not
    intervene if there are violations. They only watch, listen, and record
    events that occur at particular polling sites on election days. At
    present, we have a pool of approximately 900 intermittent employees--
    called into service on an as-needed basis--who come from all walks of
    life, including Federal retirees, students, other public- and private-
    sector workers, and some full-time employees of various Federal
    agencies.
        We schedule one-day classroom sessions for observers to provide in-
    depth training on the overall process, specific observer
    responsibilities, and administrative issues. We also provide refresher
    training during pre-briefing sessions on the day before the election.
    Whenever possible, we do role-playing in the training to demonstrate to
    the observers the proper way of handling themselves at the polling
    sites.
        In brief, the deployment process works this way: Prior to an
    election, the Department notifies OPM as to when and where it will need
    observers. OPM then assigns a Voting Rights Coordinator to (1) work
    with Justice's lead attorney to allocate observers to polling sites;
    (2) coordinate logistics, such as arranging hotel meeting space and
    sleeping rooms for observers, leasing mobile phones, and making rental
    car and airline reservations to transport observers; and (3) assign a
    captain to oversee the execution of the deployment.
        The day before an election, a Department attorney briefs the
    observers, specifying issues of concern and activities to report. For
    example, if a jurisdiction has been suspected of hampering non-English
    speakers' right to have interpreters or of not providing ballots in
    other languages as directed by consent decrees or court orders, the
    Department's attorney may ask that observers witness the provided
    assistance and/or make note of how many voters received language
    assistance. Observers may also be asked to note how many non-English
    speakers were turned away from polling sites or were given provisional
    ballots. Throughout the day, observers report such information to the
    captain, who passes this information to a Department attorney. Only the
    Department determines if intervention is necessary, and only the
    Department takes action. Toward the end of an election day, the
    Department determines when to call observers back. The observers then
    return to their staging site and prepare written reports--one for each
    polling site--to document what they saw and heard throughout the day.
        That is the bulk of what OPM does. The statute also calls on OPM to
    have an examiner for each jurisdiction where observers will be
    assigned. Originally, examiners prepared a Federally maintained list of
    voters who were denied the right to register by State and local
    officials in covered jurisdictions, and they received calls from
    citizens regarding election-day issues or incidents. This function,
    however, has changed over the years. No voters have been added to the
    Federally maintained list since 1983 as registration barriers have been
    eliminated. Moreover, since there have been no challenges to
    registration decisions in the past 30 years, there has been no need for
    hearing officers. Also, due to advances in technology, toll-free
    numbers allow citizens to report incidents and information to examiners
    remotely, in real time, and 24 hours a day during the election period.
        Under the Act, OPM is required to publish voter registration
    qualifications of each covered State in the Federal Register. It has
    also been required to publish the list of examiners, places for voter
    registration, and examiner assignments. However, these publication
    requirements may no longer be necessary, since they are now covered
    nationwide by provisions of the Help America Vote Act (HAVA) and
    ``Motor-Voter'' statute (National Voter Registration Act), which set
    out Federal standards for voter registration.
        OPM's Voting Rights Program costs have ranged from under $1 million
    in earlier years to a high of $4 million in the Fiscal Year that
    included the 2004 general election. Putting aside the expected increase
    in 2004, the overall trend has been for an increase in program coverage
    and cost, particularly for minority-language coverage.
        That concludes my testimony, and I would be pleased to respond to
    any questions the subcommittee may have.

        Mr. Chabot. Thank you very much. Ms. Pew, you're recognized
    for 5 minutes.

     TESTIMONY OF PENNY L. PEW, ELECTIONS DIRECTOR, APACHE COUNTY,
                                ARIZONA

        Ms. Pew. Thank you, Mr. Chairman, Members of the
    Subcommittee, for the opportunity to testify today for the
    reauthorization of section 6 and section 8, as they relate to
    section 203 of the Voting Rights Act.
        As stated before, my name is Penny Pew, and I've been the
    Elections Director in Apache County since 2001.
        And one of our primary focuses has been providing the
    minority and prospective voters the necessary election
    materials to ensure that each vote cast is an informed vote.
        While this education began in the 1990's as a mandate, we
    continue to provide these services to our electors so that the
    rewarding changes that we have experienced will continue.
        I would like to speak to the Federal Observer Program,
    which I believe was implemented following guidelines from the
    consent decree.
        The Observer Program has successfully functioned as a check
    and balance feature in the translator program. One of the
    three-member teams sent to the 33 precincts on the Navajo
    Nation speaks Navajo, who I view as a partner.
        During the day, these observers are able to witness poll
    workers and translators assisting the voters as they impart
    ballot information. The observers ask voters if they may
    observe the process. They do not interfere with the process and
    have never, to my knowledge, given any instruction to improve
    or to correct a process.
        The observers note different scenarios occurring during the
    course of the day to ensure that fraudulent information is not
    given to voters. In some instances, the observers report
    happenings to their DOJ central contact, who I meet with on
    each Federal Election Day.
        We are able to discuss the information relating to the
    day's events at the polling places. This is absolutely the best
    way for me to know instantaneously of situations that can be
    rectified in a very timely manner.
        I explain to those poll workers that the individuals have
    been invited to help us do our duties. Observers are greeted by
    the inspector of the polling place in an attempt to put all
    parties at ease and to assure the poll workers that the
    observers should not be viewed as hostile.
        Identification is presented and worn by each observer
    throughout the day. Due to the rural area of Apache County and
    in an attempt to minimize their presence, observers are
    requested to dress casual to better fit their surroundings.
        In follow-up post-election meetings, these notes are
    discussed, and, if necessary, changes are made in personnel or
    training procedures to ensure that no repeat incidents occur.
        As you are aware, the Navajo language is unique and could
    be very easily misinterpreted. Translators who serve on these
    election boards attend exclusive training classes, which are
    taught by full-time outreach workers, using written copies,
    flip charts, cassette recordings.
        During these classes, members are asked to read aloud the
    information together as a whole group. Open questions and
    clarifications are given by the outreach workers to ensure that
    each translator is uniform in their ballot translation, voter
    to voter, precinct to precinct.
        In 2004, Apache County extended partnership to include the
    Navajo Nation Office of the Speaker. We provided various
    educational materials through chapter meetings, community
    forums, fair booths, and frankly anywhere there were voters.
        I am pleased to report that this was a worthwhile project.
    As it turned out, Navajo Nation increased to 17,955 voters,
    comparatively to 14,277 voters in 2000. Additionally, the
    numbers increased in a precinct on the White Mountain Apache
    land from 44 voters in 2000 to 62 in 2004.
        Now, as an Election Director, I've spent untold hours
    developing a program that is indigenous to Apache County. I've
    spent time in the polls and in the communities listening to
    these voters, learning what we as election directors can do to
    ensure that the most fundamental right as citizens of this
    great nation enjoy the right to an informed vote, with the
    knowledge that it will be counted without worry of fraudulent
    actions in or out of the polling place.
        In closing, I fervently believe that is incumbent upon this
    Committee to use the expertise of each witness to further the
    Voting Rights Act, sections 6 and 8, Federal Examiner and
    Observer provision; and continuing programs such as the one
    used in Apache County.
        The observer program has proven successful for us, and has
    given us insight to the happenings at each polling place that
    would otherwise go unnoticed.
        For these and other additional reasons, which are stated in
    my written testimony, the reauthorization of these sections is
    critical to maintaining the robust program in Apache County.
        And, again, thank you for your--for this opportunity.
        [The prepared statement of Ms. Pew follows:]

                       Prepared Statement of Penny L. Pew

        Thank you Mr. Chairman and committee members for the opportunity to
    testify before you today regarding the reauthorization of Section 6 and
    Section 8 as they relate to Section 203 of the Voting Rights Act, 42
    U.S.C. 1973c.
        My name is Penny L. Pew, and I am the elections director of Apache
    County in northeastern Arizona. I have had the pleasure of this
    position since June of 2001. My primary focus has been on providing the
    minority and prospective voters, the necessary election materials to
    ensure that each vote cast is an informed vote. While this education
    began in 1982 as a mandate, we continue to provide services to our
    electors so that the rewarding changes that we have experienced will
    continue.

                            FEDERAL OBSERVER PROGRAM

        Following a lawsuit charging Apache County with discrimination
    against Native Americans, as it related to election procedures and
    materials, a 1989 Consent Decree was entered establishing the Navajo
    Language Election Information Program. A portion of this program was
    the observer program which has successfully functioned as a check and
    balance feature to this program.
        According to the 2000 census, the total population of Apache County
    is 69,423 persons, of whom 53,375 are Native American (76.9%). The
    voting age population of 42,692 persons, of whom 31,470 are Native
    American (73.7%); and that of all Native Americans of voting age, over
    one-third are limited-English proficient (11,377 persons).
        Most of the 3 member teams sent to the 33 precincts located on the
    Navajo Nation have at least one Navajo speaking member, who I view as a
    ``partner''. During the day, these observers are able to witness poll
    workers and translators assisting the voters as they impart ballot
    information. The observers ask voters if they may observe the process.
    They do not interfere with the process and have never to my knowledge
    given any instruction to correct or improve a process. The observers
    note different scenarios occurring during the course of the day to
    ensure that fraudulent information is not given to voters. In some
    instances, the observers report happenings to their DOJ central
    contact, who I meet with on Election Day. We are able to discuss the
    information relating to the days events at the polling places. This is
    absolutely the best way for me to know instantaneously of situations
    that can be rectified in a timely manner.
        I explain to the poll workers that these individuals have been
    `invited' to help us as we do our duties. Observers are greeted by the
    Inspector of the polling place in an attempt to put all parties at ease
    and assure the poll workers that the observers should not be viewed as
    hostile. Identification is presented and worn by each observer
    throughout the day. Due to the rural area of Apache County and in an
    attempt to minimize their presence, observers are requested to dress
    casual to better fit their surroundings.
        In a follow-up post election meeting, these notes are discussed and
    if necessary, changes are made in personnel or training procedures to
    ensure no repeat incidents.
        Translators who serve on the election boards attend extensive
    training classes which are taught by full-time outreach workers using
    Power Point presentations, flip charts, cassette recordings as well as
    written copies, of the ballot information. Each translator and
    Inspector (lead poll worker) are provided a cassette and also written
    ballot information. During the training classes, each member is asked
    to read aloud the information. This is accomplished in a relaxed
    atmosphere where the class participates as a whole. Open questions and
    clarification are given by the outreach workers to ensure that each
    translator is uniform in their ballot translation, voter to voter,
    precinct to precinct.

                          VOTER OUTREACH AND EDUCATION

    Advertisements
        Apache County has provided bulletin boards to each chapter house
    facility where upcoming election information is posted and kept
    current. Voters have learned to use this tool in gaining the necessary
    election information. Periodic checks are done to ensure that only
    current information is posted.
        Radio stations and newspapers have been instrumental in
    distributing the necessary election information. This was originally
    outlined in the Consent Decree 1989 with many additional measures added
    for further enrichment.

    Language Training
        As each of you are aware, the Navajo language is unique and without
    extensive linguistic training, could be misinterpreted. A Navajo
    Language Election Glossary has been developed over the years with input
    from outreach workers in Arizona, New Mexico, Utah, and the Navajo
    Nation in an effort to make the election terminology used county to
    county and state to state as uniform as possible. As times and
    technology change, the glossary is updated through proper approval.
        The outreach workers use this glossary to translate ballot issues
    in a Tri-County forum to further ensure uniformity. This is imperative,
    as many precincts lie on county lines where voters may see more than
    one county ballot, radio or newspaper ads or other informational
    materials.

    Translators/Poll workers
        Poll workers are given a detailed manual to use as a guide in
    fulfilling their obligations on Election Day, in a uniform manner.
    Additional items are distributed to ensure that the poll worker has all
    the tools necessary to assist the voter. In an effort to further
    educate, role playing was implemented and has proven to be a valuable
    tool in explaining ballot measures, as they are often very complicated.
        Due to the extensive land area of over 11,000 square miles,
    training classes are held in various locations throughout the county to
    allow the poll workers and translators easier access to training. Each
    individual is compensated for their time to attend these classes.
        After the training class, poll workers are encouraged to listen to
    their audio cassette and practice the issues. Many mentioned that they
    didn't have access to a player. So, in 2003, we established a cassette
    player library for workers to check out a player to listen and study
    the information. This was well received and the post election remarks
    indicated improvement; additionally, all cassette players were returned
    to the county library.

    State and County Monitoring of Effectiveness
        Meetings are schedules on Tri-State and Tri-County levels to
    discuss any issues that may need to be remedied. Any/all issues are
    handled by each county official to keep uniformity in the informational
    disbursement process. Tri-county personnel work closely on translations
    and exchanges of information to better ensure uniformity in the
    disbursed information. NEA officials are invited and usually attend
    these meetings with valuable input on the issues.

    NEA (Navajo Election Administration)
        All information is approved by the NEA prior to distribution
    including but not limited to announcements (radio and print), ballot
    translations, audio tapes, and any other training information. All
    training schedules are provided to the NEA and an open invitation to
    attend any/all class.
        The following is taken from a letter written to me by Kimmeth
    Yazzie, Navajo Nation Program Coordinator/Language contact:

              ``The purpose of the minority language Consent Decrees has
            generated a much greater cooperation and assistance to provide
            the necessary election and voter registration services to the
            Navajo Nation within the counties, much more than was
            anticipated from the beginning. Although the Consent Decree
            specific to Apache County expired in 1992, the county and the
            Navajo Nation continue to strive forward to this day to make
            voter registration and elections easier for the citizens in
            Apache County. Such services as situating outreach offices and
            Navajo speaking personnel in local areas with additional
            personnel when it becomes necessary, has made voting easier for
            the people of Apache County. An example, the development of the
            Navajo Glossary has opened doors to better communication with
            the Navajo Nation citizens as well as other tribes seeking
            development of the same methods of outreach. Developments of
            graphic materials and video and audio recordings provide our
            people with a better understanding of the elections. Bringing
            voter registration to the local area eliminates the long
            distance travels just to register to vote for outlying areas.
            Setting up and coordinating events together with the Navajo
            Nation and the county provides voters with two services at one
            location and a better understanding of the two distinctive
            elections. The clearance of all materials and information
            through the Navajo Election Administration provides assurance
            to the Navajo Nation that the proper and sufficient election
            information is provided to the people of the Navajo Nation,
            thus developing trust and alliance. Ideas to better provide
            services are always being exchanged between the county and the
            Navajo Nation. We learn from each other. Since the expiration
            of the Consent Decree in 1992, the relationship between the
            tribe and the county has grown and advanced beyond the bounds
            of the Consent Decree requirements.
              In closing, I can honestly say that the language program has
            been positive for our county in educating and promoting our
            most fundamental right . . . the power of our vote.''

    Outreach/Satellite Offices
        Apache County has two county district offices which are on
    Reservation Land; District I in Chinle houses a satellite office.
    District II in Ganado houses a second office. Voters and residents of
    surrounding areas visit to check voter registration and to receive any
    election updates.
        Regular meetings are scheduled and appear on agendas for the
    chapter visits at which time presentations are given using flip charts,
    PowerPoint presentations, audio aids as well as other means to convey
    the necessary information. Presentations are given in the Navajo
    language.
        All political views of the outreach workers are kept unbiased and
    neutral at all times. Implementation to `piggy-back' with the
    jurisdictions has been effective in that the outreach worker gives
    factual ballot information and the jurisdictions are available to
    answer any additional questions that the public may have.

    Deputy Registrars
        Deputy Registrars have proven valuable in assisting the voters in
    the ongoing voter registration and education process. Each Deputy
    Registrar is trained in current procedures. Each chapter office, Navajo
    Election Office and other Navajo Nation officials are trained and have
    provided further election information. Each chapter maintains a current
    voter listing, voter registration forms and during election cycles,
    early voting request forms.

    Collect Phone Calls
        Apache County happily accepts collect calls to assist the caller in
    election-related information. In an effort to better serve the people,
    an `800' number is advertised on all out-going materials and
    advertisements as well as the website.

    Voter Education
        Numerous items with voter information in distributed to spark
    interest in what has been viewed as boring in the past. Colorful
    brochures and interactive community meetings have been the focus in
    gaining voter recognition. For instance, during the Presidential
    Preference Election, February, 2004, in an effort to better explain who
    may vote, an informational brochure was produced in English, receiving
    positive input. A mirror copy was then distributed in the Navajo
    language. This helped gain further notice among the voters, with the
    outreach workers receiving community comments for further ideas in
    education. We also provide ``I Voted'' stickers in the Navajo language
    and it has been spectacular.

                                 VOTER TURNOUT

        In 2004 Apache County extended partnership to include the Navajo
    Nation Office of the Speaker in an effort known as ``Get the Vote
    Out''. Due to the low voter turnout experienced in past elections, we
    provided various educational materials at chapter meetings, community
    forums, fair booths, and anywhere there were going to be voters. I am
    pleased to report that this was a worthwhile project as turnout in
    precincts on the Navajo Nation increased to 17,955 voters casting
    ballots in 2004, comparatively 14,277 voters participated in 2000.
    Additionally, on the White Mountain Apache Lands, Apache County has one
    precinct where 44 voters participated in 2000, rising in 2004 to 62.
    This is due in part to the education at school and community meetings.

    Political Protocol
        During the 2002 election cycle, a non-Native American entered
    several polling places without the proper clearance. While inside the
    polling place, he intimidated the poll workers and voters, creating
    chaos as he progressed to various polls. For this reason alone, we
    implemented a Political Protocol presentation and accompanying
    brochure. The brochure is included in each candidate packet and a
    personal invitation to attend a short meeting outlining the proper
    protocol when campaigning on Native Lands. This is sent to each
    candidate, county, state or federal. We had great success and I am
    pleased to report that during the five elections which were held in
    Apache County in 2004, we had no reported violations in or around the
    polling places.

    Early Voting
        Ballot request forms are given to the Chapter Officials, County
    District offices on the Navajo Nation, State offices and the NEA.
    Outreach workers keep forms with them at all times while traveling and
    presenting throughout the county. These forms can also be accessed
    using the website www.co.apache.az.us/recorder.
        Early Voting drives are unique in Apache County. After specified
    advertisements in newspaper and on radio, a trailer which has been
    painted in a patriotic motif travels to scheduled locations throughout
    the rural areas. This trailer can be found many places such as on fence
    lines, shopping lots, trading posts, and post offices to name a few.

    Election Day
        Apache County employs trained bilingual poll workers at each of the
    polling places on Native Lands. These poll workers are recruited with
    the help of chapter officials, postings and word of mouth.
        Where joint elections are held between the Navajo Nation and the
    County, where polling places are shared, all efforts are made to make
    certain that the poll workers are trained and that a good working
    relationship is established between the Navajo Nation and the County
    officials to provide an enjoyable election day. The NEA and the County
    exchange poll worker lists to ensure that no candidate or close
    relative appears on either ballot.
        Each polling place is monitored for effectiveness by a
    `Troubleshooter.' This person is a county employee who has received
    training in the election process and is able to identify and correct
    irregularities on-the-spot. This person is the liaison between the
    county elections director and the polling place.

                                CLOSING COMMENTS

        As election director, I have spent untold hours developing a
    program that is indigenous to Apache County. I have spent time in the
    polls and in the communities listening to the voters, learning what we
    as election directors can do to ensure that the most fundamental right
    as citizens of this great nation enjoy . . . the right to an informed
    vote with the knowledge that it will be counted without worry of
    fraudulent actions in or out of the polling place.
        In closing, I fervently believe that it is incumbent upon this
    Committee to use the expertise of each witness to further The Voting
    Rights Act: Sections 6 and 8--Federal Examiner and Observer Provisions,
    in continuing programs such as the one used in Apache County, Arizona
    as it relates to the Native Americans. The observer program has proven
    successful for us and has given us insight to the happenings at each
    polling place that may otherwise go unnoticed. For these and other
    additional reasons, which are stated in my written testimony, the
    reauthorization of these sections is critical to maintaining the robust
    program in Apache County. Again, I thank you for this opportunity.

        Mr. Chabot. Thank you very much, Ms. Pew.
        Mr. Weinberg, you're recognized for 5 minutes.

    TESTIMONY OF BARRY H. WEINBERG, FORMER DEPUTY CHIEF AND ACTING
     CHIEF, VOTING SECTION, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT
                               OF JUSTICE

        Mr. Weinberg. Thank you very much, and thank you for asking
    me to come here.
        I may be one of the few witnesses that you have who is not
    connected with any office or organization, and probably one of
    the fewer witnesses that you're going to have that was there at
    the inception of the Voting Rights Act and saw the Federal
    examiners listing people to vote and saw the Federal observers
    when they first started.
        But I know I'm the only one here among the witnesses who
    was a supervisor of the Federal Examiner and Observer Program
    in the Justice Department for 25 years, and it's from that
    vantage point that it seems to me that there are at least three
    questions that ought to be addressed now when we're thinking
    about the reauthorization of these provisions.
        The first question is whether the provisions for Federal
    observers and Federal examiners are still needed. I think that
    the answer to that question is that the provisions for the
    Federal observers are crucial to the enforcement of the Voting
    Rights Act, and need to be reauthorized, maybe even made
    permanent; but the provisions for the Federal examiners not so
    much.
        The Federal examiners' functions--most of them are
    outdated. The procedures are cumbersome and archaic, and I
    don't think they serve any real purpose anymore. And so my
    conclusion would be that they're not needed anymore in the
    Voting Rights Act as it stands today.
        The second question I think is whether there should remain
    a link between the certification of a county for Federal
    examiners and the later assignment of Federal observers to the
    county.
        Under the Voting Rights Act, the certification of a county
    for Federal examiners is a prerequisite to the assignment of
    Federal observers.
        But the functions that they perform, the link that they
    had, doesn't exist anymore. When Federal examiners first
    registered people to vote, those people had to go to polling
    places where there were hostile election officials. You had
    African-American voters facing hostile White polling place
    workers and voters for the first time in many, many rural areas
    across the South. The Federal observers were written into the
    act to watch what happened to those newly enfranchised voters
    and to allow the Justice Department to take action to assure
    their safety in the polling places. That situation just doesn't
    exist anymore, and I think the linkage is cumbersome and ought
    not to exist either.
        The third question I think is whether the Federal observers
    ought to be continued as a law enforcement function under the
    Voting Rights Act, which is what they perform; or whether it's
    possible to make the reports and information from the Federal
    observers public after the election, as is done overseas.
        I just got back last week from being an international
    observer in an election in Azerbaijan, and I've done that a few
    other times. The organizations that do that kind of work do it
    in order to publicize the information that they get from the
    polls immediately after the election.
        But I think that would be a real mistake. I think that the
    use of Federal observers in law enforcement is important and
    ought to be continued and the publication of the information
    they get immediately would be detrimental.
        All this revolves around what I consider the most important
    point, which is that the existence of Federal observers is
    crucial, and it's irreplaceable in the Voting Rights Act. After
    all, there's no other way for the law enforcement function of
    the Justice Department to be able to be performed with regard
    to harassment and intimidation and disenfranchisement of racial
    and language minority group members in the polling place on
    Election Day. And that's because State laws are written to keep
    other people, including Federal investigators out of the polls.
        State laws, almost all of them--and they vary, but
    invariably they allow in the polls on Election Day the voters
    and the polling place officials, and they keep everybody else
    out. They allow police in if there's a disturbance, but mainly
    it's to have this safe harbor for voters on Election Day. But
    the effect of that, from a law enforcement point of view, is it
    keeps the law enforcement officers out. There is no way that
    the Justice Department lawyers could know about this harassment
    and this intimidation without the Federal observers, because
    the Voting Rights Act allows the Federal observers in. Federal
    observers are witnesses. They are the eyes and the ears of the
    Justice Department attorneys in the polling places.
        Without them, the law, the enforcement of the Voting Rights
    Act would be much abused, and so I would--my conclusion is that
    the observer provision is necessary. It ought to be
    reauthorized. It ought to be continued, and I think there
    should be some consideration given to making it permanent,
    taking it out of the special provisions and making it adjunct
    to sections 2 and 203 of the Voting Rights Act.
        [The prepared statement of Mr. Weinberg follows:]

                    Prepared Statement of Barry H. Weinberg

        Mr. Chabot. Okay. Thank you. The gentleman's time has
    expired.
        The panel up here is bound by the same rule as the witness
    panel is, and it's a 5 minute rule, so we will each have 5
    minutes to ask questions at this time, and the Chair recognizes
    himself for that purpose.
        And the question I'm going to ask--I'll just go down the
    line and let each of you deal with it.
        And some of you have already touched on this in your
    testimonies obviously, but much of what we're doing is setting
    a record here, and so some repeating I think is probably good.
    It's been suggested in some of the written testimonies that the
    Federal Examiner Program may no longer be necessary.
        Mr. Weinberg's written testimony further suggested that
    Congress should amend section 8 to make certification for the
    deployment of Federal observers independent of Federal
    examiners. Would each of you comment on the Federal Examiner
    and Observer Program and why the assistance of Federal
    observers is still necessary or not.
        Ms. Randa?
        Ms. Randa. Thank you, Mr. Chairman. We play--we at OPM play
    a very limited support role to the Department of Justice in
    this program, and I have testified to the fact that the role of
    Examiner has evolved over the years and changed. But beyond
    that, I would think we would defer to the Department of Justice
    to make any decisions about exactly what changes should be made
    in the future.
        Mr. Chabot. Okay. Thank you. Ms. Pew?
        Ms. Pew. I can speak to the Federal Observer Program and
    believe that it is well worth the time spent. It is my--those
    are my eyes and ears inside the polling places. I have very
    limited examiner contact. But I can speak to the Federal
    Observer Program; that it has been absolutely phenomenal. It's
    been a great boon in our county.
        Mr. Chabot. Thank you. Mr. Weinberg?
        Mr. Weinberg. Thank you. I mean I think Ms. Pew's response
    is somewhat indicative. She's been intimately involved as a
    county election official with the results of the work of the
    Federal observers, and has no knowledge of what the Federal
    examiners do.
        And I think that's not her fault. It's because the Federal
    examiners just don't do much anymore. I think OPM, if we were
    being candid in the back room, would say they have to maintain
    all these lists of federally registered voters. They have to
    keep them current, keep the addresses up. Mostly now, they're
    removing people's names from those lists of federally
    registered voters, because they're dying.
        Yet, the counties can't take those voters off their voting
    rolls without an okay from the Office of Personnel Management.
    I mean I think to some extent it is now getting--what were
    protections are now getting in the way of several functions,
    and I think they're not needed.
        As far as the certification, and you know I think observers
    are important. As far as how to get them into a county the
    first time, I do think a certification procedure is important.
    I think it assures everyone that there is a need for this law
    enforcement function to go on.
        But as it stands now, the Attorney General has to
    personally sign the certifications. I think that's unnecessary.
    I think that function could be delegated to the Assistant
    Attorney General, much the same way as the Assistant Attorney
    General has authority delegated to object to voting changes
    under section 5 of the act, and I think that it could go on as
    a provision on its own.
        I think it should.
        Mr. Chabot. Thank you. And my second question, Mr. Weinberg
    and Ms. Randa, if you want to comment on it, you could as well.
        How does the Department of Justice determine whether
    Federal observers are necessary?
        Mr. Weinberg. There's sort of two tracks on that. And, you
    know, I must qualify everything I say by saying I haven't been
    at the Justice Department for almost 6 years. I don't know
    what's changed and what's not. I doubt that it has changed very
    much.
        One track is where there's an investigation before the
    election that starts 6 weeks before an election, and is
    described in some detail in my extended remarks. It's an
    investigation. It starts out with telephone calls to local
    officials, to minorities who are knowledgeable in the area
    about election matters and devolves down to field investigation
    by attorneys who relay information up to a central person in
    the Voting Section of the Civil Rights Division, who then
    combines the information; is talking with OPM; puts together a
    memorandum setting out the facts for each site, and
    recommending how many observers are needed.
        So it's a very intensive, a very detailed law enforcement
    investigation. That's how it usually works in Southern areas.
    Where the concern is with language minority provisions of the
    Voting Rights Act, it's a little bit different. There still is
    an investigation, but because the problems involved with
    violations of the Language Minority provisions of the Voting
    Rights Act usually are systemic and do not depend on any
    particular election contest in a city, county, or school
    district----
        Mr. Chabot. Do you do that before each election?
        Mr. Weinberg. Yes.
        Mr. Chabot. Okay. Thank you.
        Mr. Weinberg. In the specially covered areas.
        Mr. Chabot. Okay.
        Mr. Weinberg. Yes.
        Mr. Chabot. Thank you. You can continue.
        Mr. Weinberg. Because of the language violations of the
    Language Minority provisions usually are more systemic, an
    initial investigation is what's needed. Usually, these days,
    there's litigation that results and a court certifies the
    county. So you have everything you would have leading up to
    litigation, which is a lot of work and a very intensive effort.
        After that, the first election, however, the observers
    could be assigned again and again without repeated
    investigations. It's the information really one gets out of the
    polling places for the language minority coverage that would
    recommend going or not going again to the next election.
        Mr. Chabot. Okay. Thank you very much. My time has expired,
    but, Ms. Randa, is there anything that you want to----
        Ms. Randa. I would just confirm what Mr. Weinberg said that
    our involvement is to coordinate on the number sent to each
    polling site.
        Mr. Chabot. Okay. Thank you very much. My time has expired.
        The Ranking Member of the overall Committee, Mr. Conyers,
    is recognized for 5 minutes.
        Mr. Conyers. Thank you, Chairman Chabot.
        Three considerations. I start with Mr. Weinberg. There's
    been only one certification by the Attorney General to section
    6, Titus County, Texas. Does that mean a lot are coming through
    the courts under section 3 or does it mean there need to be a
    lot more?
        My second consideration--and I'll go over these again--is
    this linkage between certification of observers and its
    validity.
        And then finally, I had one of the witnesses tell me that
    Federal observers are kept out of the polls by State law, so
    it's frequently hard for them to see anything that's happening.
    It's hard to be an observer if you can't get into the polls
    under State law.
        Can you help put some of these things into context?
        Mr. Weinberg. I can help with some of them I think.
        Taking the last one first, State law would keep most people
    out of the polling places, but Federal observers get to in the
    polling places because the Voting Rights Act lets them. It's
    the authorization of the Voting Rights Act that lets Federal
    observers in. Otherwise, the Federal observers are like people
    off the street, and just can't walk into a polling place on
    Election Day.
        As far as the certifications go, as I haven't been involved
    in that, I don't know. I went onto the Justice Department
    website a couple days ago to see if I could tell what's been
    going on in the last few years, and there have been a lot of
    court certifications it looks like as a result of litigation
    under the Language Minority provisions of the Voting Rights
    Act. And observers are being assigned to watch elections in
    those areas.
        I don't know why there have been few, if any,
    certifications by the Attorney General of counties.
        Mr. Conyers. Well, from everything I've been hearing, you
    know we've got piles of complaints that come in. Unless all of
    them are invalid, I mean this doesn't add up, Mr. Weinberg.
        Let me put it like this: Are attorneys who are Federal
    observers precluded from coming into the voting booths?
        Mr. Weinberg. The Justice Department attorneys in most
    States would be precluded from going into the polling places
    because they're neither registered voters there nor polling
    place officials.
        The Federal observers, however, can go into polling place
    where they're assigned--any county jurisdiction that's been
    certified.
        Mr. Conyers. Ms. Pew, do you or Ms. Randa, want to add
    anything to this discussion.
        Ms. Pew. I will add that in Arizona, observers, with prior
    approval, are welcome into our polling places. We ask that they
    submit something in writing to me by the Friday prior to the
    election, so that I can send that to the poll workers.
        Given that a lot of them are non-Native American, and then
    poses a threat. We did have an incident in 2000 that prompted
    quite a chaotic sense in about 17 of our precincts, and, for
    that reason, we began a political protocol that is mandatory
    for our observers.
        Mr. Conyers. Could you get a little outdated considering
    the way the process is working now?
        Ms. Pew. I can't respond to that, because in our county the
    Recorder's Office and the Elections Office are separate. The
    Recorder's Office maintains the voter rolls, as far as purging
    those, as Mr. Weinberg has spoken to, so I can't respond to
    that.
        Mr. Chabot. Ms. Randa?
        Ms. Randa. I wouldn't want to hazard a conclusion about
    whether it should or how it should change, but I will confirm
    what Mr. Weinberg said about there having been very little
    activity other than removing names from the list of registered
    voters. So that part of the role is what has evolved.
        Mr. Conyers. Thank you, all. Thank you, Mr. Chairman.
        Mr. Chabot. Thank you. The gentleman's time has expired.
        The gentleman from Virginia, Mr. Scott, is recognized for 5
    minutes.
        Mr. Scott of Virginia. Thank you. Thank you, Mr. Chairman.
        Mr. Weinberg, let me ask you a little more specifically,
    just from a practical point of view, if a local civic
    organization suspects problems in a certain area, how do they
    get an observer into that area now, and how would you propose
    changing that mechanism?
        Mr. Weinberg. Getting in touch with the Justice Department
    about the need for Federal observers is the easiest thing on
    earth. All you need to do is call. A telephone call will do it.
        In fact, the Justice Department attorneys rely very, very
    greatly on information and input from people who are in the
    counties, whether they are victims or witnesses or just
    concerned citizens.
        We always were open to those kinds of contacts. If somebody
    has a particular problem in any county, we always encouraged to
    call us, let us know what the concern is, and we will
    investigate.
        If the investigation reveals facts that show violations of
    the Voting Rights Act and need for observers, the observers
    will be sent.
        Now, in Virginia, there are no certified counties, so that
    whole certification process we were talking about before, where
    there has to be an investigation, and then a recommendation to
    the Attorney General to sign a piece of--he actually signs a
    piece of paper that says I hereby certify, and then that's
    published in the Federal Register before Federal observers can
    be assigned.
        Mr. Scott of Virginia. And that's the process now?
        Mr. Weinberg. Yes.
        Mr. Scott of Virginia. And are you proposing any change to
    that process?
        Mr. Weinberg. Yes. I'm proposing that in my imagined the
    new process there would be an investigation and the Assistant
    Attorney General would agree to a recommendation and then sign
    a piece of paper that says that Federal observers would be
    needed to watch proceedings in the polling place in order to
    enforce the Voting Rights Act.
        Mr. Scott of Virginia. Now, how long does that
    certification stay active?
        Mr. Weinberg. Now, it stays active forever. A jurisdiction
    can petition under section 13 of the Voting Rights Act to stop
    the Federal examiner appointment. I don't think anybody ever
    has.
        Mr. Scott of Virginia. Do the observers have any specific
    qualifications?
        Mr. Weinberg. Observers, by and large, OPM, as I understand
    it tries to have observers be OPM personnel where that's
    possible; in some instances, where language minority voters are
    concerned, there may not be sufficient numbers of OPM personnel
    who speak that language, especially in Indian country. And so
    people from other agencies are taken in.
        But the Federal observers are personnel who are trained.
    There are periodic trainings through the year, and then there
    are on-site trainings that are specific and briefings of the
    observer before the election.
        Mr. Scott of Virginia. If you didn't have the observers,
    how would you investigate complaints?
        Mr. Weinberg. When I started in the Justice Department, I
    was law clerk in the summer of 1965. The Voting Rights Act
    passed in early August, but we still had many lawsuits that
    were pending. They were terribly cumbersome. They're very
    difficult to investigate. The records alone are very difficult
    to get, and I think the Court, in South Carolina v. Katzenbach,
    which found the Voting Rights Act special provisions
    constitutional, recognized how difficult it is to mount a
    standard garden variety lawsuit against violations of the
    Voting Rights Act.
        So, absent the Federal observers, it would be terribly,
    terribly difficult.
        Mr. Scott of Virginia. Thank you, Mr. Chairman.
        Mr. Chabot. Thank you. The gentleman's time has expired.
        I'd ask unanimous consent that the gentleman be given one
    additional minute, if he would yield to me for a moment?
        Would the gentleman from Virginia yield to me?
        Mr. Scott of Virginia. Yes.
        Mr. Chabot. Okay. I just wanted to follow up with one
    question, Mr. Weinberg. What criteria would you envision for
    certification of observers?
        Mr. Weinberg. I think the criteria would be that there is
    evidence of probable violations of the Voting Rights Act. I
    mean I don't know that one needs much more.
        The certification procedure now is just about that. It's--
    for examiners. It's not a detailed certification.
        Mr. Chabot. Okay.
        Mr. Weinberg. And I would think it shouldn't--certainly not
    be more detailed and possibly a little less. But it would be
    keyed to possible violations of the Voting Rights Act.
        Mr. Scott of Virginia. Well, Mr. Chairman.
        Mr. Chabot. I yield back.
        Mr. Scott of Virginia. Reclaiming my time, when do they
    certify it now?
        Mr. Weinberg. They certify--now the certification is it's
    necessary to enforce the 14th and 15th amendments.
        Mr. Chabot. If the gentleman would yield? Isn't it also or
    20 written complaints?
        Mr. Weinberg. Yes. There's an alternative that if you get
    20 written complaints. That, however, triggers the Attorney
    General's consideration. And so it all devolves pretty much to
    the same point, which is we in the Justice Department had to
    figure out that there were violations of the law that were
    probable and usually were happening and persuade the Attorney
    General of that.
        Mr. Chabot. Thank you. The gentleman's time has expired.
        The gentleman from North Carolina, Mr. Watt, is recognized
    for 5 minutes.
        Mr. Watt. Mr. Chairman, let me defer to Mr. Scott, if I
    can. I'm trying to see whether there are any things I need to
    question about.
        Mr. Chabot. Okay. All right. We'll just start from scratch
    here then, and yield to the gentleman from Georgia. Mr. Scott
    is recognized for 5 minutes, and then we'll come back to Mr.
    Watt.
        Mr. Scott of Georgia. Thank you, Mr. Chairman.
        Mr. Weinberg, I wanted just start for a moment with your
    suggestion that we move away from the Federal examiners,
    because I--given your history, you were there at the beginning.
    You understand the whole make up and need for both examiners
    and observers. I'm not quite convinced, just from my own
    preliminary investigation of this that we may need to do away
    with examiners.
        And your reason for saying we may need to modify or do away
    with the examiners was that the link doesn't exist. And I think
    your meaning of the link that I got was your quote was that
    there were no more hostile elected officials.
        Can you elaborate on that, because there is still, in my
    estimation, hostile elected officials in various pockets of the
    South, and, a matter of fact, all across this nation. And if
    that is the link that you think doesn't exist, I am here to
    assure you that it does still exist.
        I'm always of the opinion that we move with and err on the
    side of caution. In Georgia, for example, there are still
    300,000 eligible African-Americans that are unregistered to
    vote, and time after time and case after case, we have
    documented hostility. Crosses are still being burned. In some
    of these areas, voters are being intimated.
        So I'm very concerned about doing away with that, and
    especially in view of the fact that the Federal examiners are
    used as the trigger to determine whether or not to send these
    observers in. So how do we replace that trigger? But would you
    mind elaborating on that linkage?
        Mr. Weinberg. Sure. I'd be happy to.
        I agree with you a hundred percent that there are hostile
    polling place officials throughout the country, and that's one
    of the reasons that I think the Federal Observer provision is
    so important.
        The link I was talking about is it was a specific link to
    newly federally registered voters, as it existed between 1965
    and 1972 in the South. As the Voting Rights Act was
    constructed, the observers were to watch specifically to see if
    those particular voters were being hostilely treated in the
    polls. And the complaint structure of the Federal examiners was
    as to complaints as to the mistreatment of those newly
    enfranchised voters.
        The passage of time has taken care of many of those
    situations. Certainly, some of those same areas are areas where
    Federal observers still would be assigned.
        But it's not because those African-American voters have
    just been put on the roles by a Federal examiner. The problem
    is both broader and deeper than that. And I think Federal
    observers are necessary for that.
        The Federal Examiner function for registering voters,
    however, has been--it hasn't been used in 30 years. There were
    a couple of isolated instances of Federal registration in 1982
    and 1993, but apart from that, it hasn't been used since the
    1970's, in some part because of the success of the Voting
    Rights Act, but also because of the enactment of new laws that
    make voter registration a lot easier--the restrictive hours and
    locations that people were faced with in the '60's. Now, you
    can register by mail.
        So there are improvements in the voter registration
    process, and it is the voter registration process and the
    maintenance of the names of those people who were listed in
    1965 to 1972 that the examiner provisions of the Voting Rights
    Act are geared to.
        So it has nothing to do with the need for Federal observers
    to get information on violations in the polling places--
    discrimination against racial or language group members. That's
    going on nationwide, and I think the observers are necessary
    for that.
        Mr. Scott of Georgia. Mr. Weinberg, why are then--why was
    the Federal Examiner certification a prerequisite for bringing
    in the observers in the first place?
        Mr. Chabot. The gentleman's time has expired, but you can
    answer the question.
        Mr. Weinberg. All right. The Voting Rights Act after the
    Selma to Montgomery March brought everything to a head in early
    1965. The big focus was on getting people registered to vote.
    It was--we were talking total disenfranchisement. And so we
    needed to allow people to get on the voting rolls, and the way
    that the Voting Rights Act is constructed, if you read the
    sections 6 and 7, you'll see a very, very intricate pattern of
    getting people to--into the examiners, to list them, to turn
    the lists over, and this was a big deal because you were taking
    a Federal employee, a Federal examiner, and inserting that
    Federal examiner into what is a State and local process, which
    is voter registration. The principles of federalism were very,
    very strong, and this was an extraordinary remedy, the first
    time ever in this country, that you had these Federal officials
    coming in and just taking over, just taking over and without a
    court order. It was just an administrative decision. In order
    to make that administrative decision have the import that it
    needed to insert those Federal people into the State function,
    the Voting Rights Act drafters had the Attorney General
    personally sign a certification that this was necessary to
    enforce the 14th amendment and 15th amendment.
        And that's how this came to be. The reason they're linked
    is because the drafters then thought, well, we have all these
    newly enfranchised voters coming into these terribly hostile
    polling places, we can't just let them wander in there. But
    what are we going to do? They say, well, we'll have authorized
    Federal observers to watch what happens and get the information
    back to the Attorney General so the Justice Department could
    take action if it was needed.
        Mr. Scott of Georgia. Thank you, Mr. Chairman.
        Mr. Chabot. The gentleman's time has expired. The gentleman
    from North Carolina, Mr. Watt, is recognized for 5 minutes.
        Mr. Watt. Thank you, Mr. Chairman.
        Ms. Randa, when observers are sent out--have been sent out
    in the past, has there a history of anybody complaining about
    the observers. And, if so, what do those complaints normally
    consist of and who normally makes them?
        Ms. Randa. Any incidents or issues that come up during a
    given exercise or observation would be put in the report and it
    is then passed to Department of Justice, who maintains that and
    decides whether to take any action on it.
        We don't actually maintain that information, historically,
    so I couldn't speak to the record on that. I know anecdotally,
    years ago, there were sometimes issues getting access and
    getting friendly treatment. But I don't believe that's been a
    problem in recent years.
        Mr. Watt. Mr. Weinberg, to some extent, what you are
    proposing is constructing a new model for sending out
    observers, which I think probably is a reasonably good idea.
    The prior model applied that the observers to cover
    jurisdictions, select jurisdictions for sending observers to;
    isn't that right?
        Mr. Weinberg. Right. The observers in all the specially
    covered jurisdictions.
        Mr. Watt. Is there--in the construction of the new model
    that you are proposing, if you were constructing a new model
    that didn't apply only to covered jurisdictions--it applied in
    some triggering fashion that triggered based on complaints or
    suspicions, how would you articulate what the standard would
    be? You said at one point I think in your testimony that you
    thought maybe the observer provisions ought to be applied
    nationally. But how would you articulate the standards that you
    would use to trigger it?
        Mr. Weinberg. Yes. My idea would be to keep the Federal
    observers tied to the Voting Rights Act enforcement. And you
    would need a finding by the Justice Department that the
    provisions of the Voting Rights Act are being violated or
    actions are happening which would constitute violations of the
    Voting Rights Act. You need that finding before----
        Mr. Watt. Are being violated or--I mean it's too late after
    they've been violated. The election is taking place. So you'd--
    I mean you'd have to be looking at some imminent danger.
        We presumed under the old framework that there was imminent
    danger because there was a history, and we know that there is
    some imminent danger going forward, because people are engaging
    in this--or appear to be engaging in some conduct. But I'm just
    trying to figure out how you would articulate what the standard
    would be for the Justice Department to trigger the observer
    provisions?
        Mr. Weinberg. Yes. The law now talks about circumstances
    that appear to be reasonably attributed to violations of the
    14th and 15th amendments.
        All along, before a certification can be made and even now,
    before Federal observers are assigned, the Justice Department
    makes a determination that racial and language minority group
    members are facing circumstances in the polling place that
    would violate the Voting Rights Act. We get that information by
    conducting investigations, conducting interviews in the normal
    way one would investigate a possible violation of a Federal
    law.
        When you reach that conclusion, you don't have to have
    proof by a preponderance of the evidence in a structured way
    that the violations have occurred. What you need is information
    that indicates that those violations are occurring, and that's
    basically what happens.
        Mr. Watt. So it would be some kind of good faith
    determination by the Justice Department that a violation of the
    14th or 15th amendment has or is about to occur?
        Mr. Weinberg. Right.
        Mr. Chabot. The gentleman's----
        Mr. Watt. May I ask unanimous consent for one additional
    minute----
        Mr. Chabot. Without objection, so ordered.
        Mr. Watt. --just to ask one additional question of Mr.
    Weinberg.
        The reports of the observers--you testified you don't think
    they ought to be made public, published, unlike when we're
    observing elections in other countries.
        What's done with those reports now?
        Mr. Weinberg. Those reports are used by the Justice
    Department attorneys to determine whether more legal action is
    needed, if there's already a lawsuit pending or if there's no
    lawsuit, whether a legal action is needed. And I should say
    also that these reports are not always kept from public view.
    They're--the redacted versions have been released under the
    Freedom of Information Act. I mean there are ways to see them.
    Often, they're not all that illuminating since they're----
        Mr. Watt. But wouldn't it serve some deterrent effect for--
    to future voting rights violations to publish the reports of
    the observers?
        Mr. Weinberg. Yes. I think the deterrent effect is in the
    legal action by the Justice Department, and I think that's been
    shown to be very effective.
        And since these reports often are also used if a court has
    certified a county, the report goes to the court. And the
    reports are used in those instances to determine liability of
    the defendant or the county and whether the relief has been
    adequate. So they are in that sense used right away, and I
    think the deterrent effect is really adequate the way it exists
    now.
        Mr. Chabot. The gentleman's time has expired.
        The Chair, in light of the fact that this is the ninth
    hearing in this--on the Voting Rights Act and we have more to
    come at some future point has been avoiding second rounds.
    However, the Chair would like to ask one question. And it's my
    understanding the Ranking Member has an additional question as
    well, so I would recognize myself for a minute.
        And if I could, Ms. Pew, ask you a question, and this is
    again establishing--one of our principal goals here is to
    establish a record in light of the fact that this may well be
    before the Supreme Court some day.
        Let me ask you what types of discrimination do minorities
    sometimes continue to experience in polling places that you're
    aware of?
        Ms. Pew. Well, it's my experience that given the outline
    and the guideline that was given to us in the consent decree
    that we've complied with and continue to, even though it is now
    outdated and we're not made to do that, we continue to do that,
    and we're not seeing discrimination. We are--we've got a robust
    program that is reaching out and based on the numbers of the
    voters that are increasing, we're not seeing the
    discrimination.
        Mr. Chabot. Yeah. What were the discriminations based upon
    in the consent decree that you----
        Ms. Pew. They were based on denial. They weren't able to
    read the ballot. They weren't able to understand the ballot.
    Things were posted in the newspapers by statute, but they
    couldn't understand them, and that's definitely a disadvantage
    to someone who is not only maybe language non-speaking, but
    very language limited as far as even in their cultural, their
    native language. They don't read Navajo a lot of them.
        And so it is a verbal language. It is important that all of
    these things be looked at. And I believe that given the outline
    we have in the consent decree and the things that we're still
    following that it needs to continue.
        Mr. Chabot. Okay. All right. Thank you very much.
        The gentleman from Michigan is recognized for two
    additional minutes.
        Mr. Conyers. Thank you, Mr. Chairman.
        Mr. Weinberg, you've noted that there haven't been any
    complaints regarding federally listed voters over the last 20
    years. But do we need new tools to deal with the sometimes
    large-scale purges of eligible voters from the voting rolls?
    How do we keep voters on the voter rolls if we eliminate
    examiners and observers--as I understand are only at the polls
    on election day.
        Mr. Weinberg. The Federal Observer provisions don't address
    all of the violations that could occur with regard to voter
    registration and voting. It's really--it really has to do with
    what happens inside the polling places on election day. But the
    law certainly is adequate as it stands to deal with other
    discriminatory actions and that would include discriminatory
    purges of the rolls.
        Mr. Conyers. Who would do it?
        Mr. Weinberg. The Justice Department could do it.
        Mr. Conyers. But they wouldn't have to be observers?
        Mr. Weinberg. No. No.
        Mr. Conyers. They would be what kind of personnel?
        Mr. Weinberg. It would be investigations in the normal
    course of business at the Justice Department, investigations by
    attorneys, by the FBI. That's how it works.
        Mr. Conyers. Okay. Thank you, Mr. Chairman.
        Mr. Chabot. Thank you very much, Mr. Conyers.
        That concludes this hearing, and I want to thank the
    witnesses again for their testimony. It has been very, very
    helpful.
        If there's no further business to come before this
    Committee, we're adjourned. Thank you.
        [Whereupon, at 2:03 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John Conyers, Jr. a Representative
    in Congress from the State if Michigan and Member, Subcommittee on the
                                  Constitution

        Despite the optimistic tone struck by our witnesses and members of
    this Committee, racial and language minorities still face serious
    obstacles to equal participation in the electoral process. During every
    election cycle, my staff fields numerous complaints involving election
    day mischief from around the country. While many simply involve
    hardball campaign tactics, a troubling number cross the line into
    questionable race politics that raises the issue of systematic
    suppression of the minority vote.
        During the 2002 election, I referred a complaint to the Department
    of Justice concerning fliers circulated in African-American areas of
    Baltimore, Maryland, that were intended to confuse and suppress voter
    turnout in those communities. The flier misstated the date of election
    day and implied that payment of overdue parking tickets, moving
    violations and rents were qualifications for voting. Similarly, During
    the 2003 Kentucky gubernatorial election, I referred a complaint to the
    Department concerning reports that 59 precincts with significant
    African-American populations had been targeted for vote challenges by
    local campaign officials.
        These kind of tactics have been the target of injunctive relief by
    the Department under provisions of the Voting Rights Act of 1957. For
    example, in 1990, the Department sued over a so-called ``ballot
    security'' program in North Carolina, where postcards were mailed to
    African- American voters that were designed to discourage them from
    coming to the polls by providing misinformation about the requirements
    for voters. As a remedy to these allegations of voter intimidation, the
    parties entered into a consent decree, but the damage was done, with
    the major African-American candidate losing a close election./1/
    ---------------------------------------------------------------------------
        /1/ Consent Decree in United States of America v. North Carolina
    Republican Party, No. 91-161-CIV-5-F (Feb. 27, 1992).
    ---------------------------------------------------------------------------
        The failure of the 1957 Act to bring prospective relief for
    interference with the right to vote was the main reason behind the
    enactment of Sections 3, 6 & 8 for the Voting Rights Act of 1965. These
    provisions give the federal courts and the Attorney General the
    authority to monitor the procedures in polling places and at sites
    where ballots are counted to enforce the voting guarantees of the
    fourteenth or fifteenth amendments. Unlike, mere attorney coverage or
    election monitoring by the advocacy community, these provisions give
    federal monitors the legal authority to enter all polling places, and
    even the voting booths themselves, to provide the closest scrutiny of
    the elections process.
        To date, a total of 148 counties and parishes in 9 states have been
    certified by the Attorney General for election monitoring pursuant to
    Section 6./2/ In addition, 19 political subdivisions in 12 states are
    currently certified for election monitoring by federal court order,
    pursuant to Section 3./3/
    ---------------------------------------------------------------------------
        /2/ Alabama (22 counties), Arizona (3), Georgia (29), Louisiana
    (12), Mississippi (50), New York (3), North Carolina (1), South
    Carolina (11) and Texas (17).
        /3/ California (6), Illinois (1), Louisiana (1), Massachusetts (1),
    Michigan (1), New Jersey (1), New Mexico (2), New York (3),
    Pennsylvania (1), South Dakota (1), Texas (1), and Washington (1).
    ---------------------------------------------------------------------------
        On election day last week, the Department sent federal observers
    and Justice Department personnel to 16 jurisdictions in seven states to
    monitor elections, including Hamtramck, Michigan, a jurisdiction partly
    within my district which had an ugly episode of discrimination against
    Arab-Americans at th polls in 1999. In 2004, the Department coordinated
    and sent 1,463 federal observers and 533 Department personnel to
    monitor 163 elections in 105 jurisdictions in 29 states.
        I believe that the monitoring of elections by federal observers is
    an important aspect of the Voting Rights Act that should be
    reauthorized. As prior witness testimony has clearly shown,
    discrimination at the polls remains a problem. Where jurisdictions have
    a record of discrimination or current threats exist to ballot access,
    minority voters should not have to wait for federal assistance to come
    after the fact.
        Monitors play the important role of addressing concerns about
    racial discrimination and ensuring compliance, so that voters can rely
    on a fair process now, rather than waiting for litigation later.
        Given the fact that the Department has trumpeted its ``voter
    protection'' programs, I am disappointed that they did not appear today
    at today's hearing. In numerous press releases, the Department has
    appeared to express a strong commitment to the monitoring program,
    especially in the area of Section 203's bilingual election
    requirements. There are questions, however, about the rising emphasis
    on attorney coverage, the limited number of certifications under
    Section 6, and whether there has been a shift in enforcement
    priorities. While Mr. Weinberg can act as an able proxy for the
    Department in most areas, only the Department can definitively respond
    to these questions.
        Before closing, I must commend the work of the Office of Personnel
    Management, whose efforts at recruiting, training, and supervising
    election monitors is the key to the program's success. Ms. Randa, I
    look forward to your testimony and hope that you address ways of
    improving the long-term viability of the monitoring program.

                                  ----------

           Appendix to the Statement of Penny Pew: Election Materials

                                  ----------

    Appendix to the Statement of Penny Pew: Prepared Statement of Penny Pew
         submitted to the National Commission on the Voting Rights Act

                                  ----------

      Appendix to the Statement of Barry Weinberg: Problems in America's
      Polling Places: How They Can Be Stopped; Temple Political and Civil
                         Rights Law Review, Spring 2002

                                  ----------

      Prepared Statement of the Honorable Bradley J. Schlozman, Principal
    Deputy Assistant Attorney General, Civil Rights Division, Department of
     Justice, Concerning The Voting Rights Act: Sections 6 and 8, Federal
                         Examiner and Observer Programs

        Chairman Chabot, Ranking Member Nadler, distinguished members of
    the Subcommittee:
        I am Bradley Schlozman, the Principal Deputy Assistant Attorney
    General of the Civil Rights Division at the Department of Justice. As I
    have underscored in previous testimony before this Subcommittee, the
    President has directed the full power and might of the Justice
    Department to enforcing the Voting Rights Act and preserving the
    integrity of our voting process. This Administration looks forward to
    working with Congress on the reauthorization of this important
    legislation.
        It is my privilege today to provide you with an overview of the
    Justice Department's use of sections 6 and 8 of the Voting Rights
    Act,\1\ which pertain to Federal examiners and Federal observers. As
    you know, these provisions, like section 5,\2\ are slated to expire in
    August 2007.
    ---------------------------------------------------------------------------
        \1\ 42 U.S.C. 1973d, 1973f.
        \2\ 42 U.S.C. 1973c.
    ---------------------------------------------------------------------------
                               FEDERAL EXAMINERS

        Let me begin by explaining what ``federal examiners'' are within
    the meaning of the Voting Rights Act. Federal examiners are essentially
    officials assigned to a particular political subdivision to whom
    certain complaints of voting discrimination can be made. Governed by
    section 6 of the Act, the authority to appoint Federal examiners was
    first designed as a congressional response to the racially
    discriminatory voter registration practices that existed throughout the
    South at the time of the Act's original passage in 1965. Examiners are
    charged with processing (or ``examining'') applicants for voter
    registration and making a list of those applicants who meet State
    eligibility rules; the list is then given to the local county
    registrar, who is required to put those names on the county's voter
    registration rolls. Those on the examiner's list are commonly called
    ``federally registered voters.'' The Voting Rights Act also requires
    the examiners to be available during each of the jurisdiction's
    elections, and for two days afterward, to take complaints from any
    federally registered voter claiming that he/she had not been allowed to
    vote.
        Federal examiners can be appointed in two separate ways. The first
    route is through section 6's empowerment of the Attorney General to
    ``certify'' for the appointment of Federal examiners any jurisdiction
    falling within the coverage of the Voting Rights Act in which there is
    reason to believe that voters have been denied the right to vote on
    account of their race or status as a language minority. In particular,
    the Attorney General must certify that either: (i) he has received
    complaints in writing from twenty or more residents alleging that they
    have been denied the right to vote under color of law on account of
    race or color or because they are a member of a language minority and
    he believes such complaints to be meritorious; or (ii) in his judgment,
    the appointment of examiners is necessary to enforce the guarantees of
    the 14th or 15th Amendments. The second method by which Federal
    examiners may be appointed is for a Federal court to do so pursuant to
    section 3(a) as part of an order of equitable relief in a voting rights
    lawsuit to remedy violations of the 14th or 15th Amendment. Judicial
    certifications, unlike those of the Attorney General, are not
    restricted to those political subdivisions covered by section 4 of the
    Voting Rights Act. Regardless of who makes the formal certification,
    once the determination is made, the actual selection of the examiner is
    undertaken by the Director of the Office of Personnel Management (OPM),
    who then oversees the examiner's activities.
        The Voting Rights Act's ban on literacy tests and other
    discriminatory practices has mitigated many of the voter registration
    problems that made examiners so important. As a result, the need for,
    and role of, Federal examiners has greatly diminished over time.
    Although there are still 148 counties and parishes in 9 States that the
    Attorney General has certified for Federal examiners,\3\ nearly all of
    these certifications were certified shortly after the Voting Rights Act
    was passed in 1965 when conditions were radically different from
    today.\4\ Moreover, many of the counties/parishes have not been the
    source of any race-based voting registration complaints for decades.
    ---------------------------------------------------------------------------
        \3\ There are also 19 political subdivisions in 12 States currently
    certified by court order. With two exceptions, all of these
    certifications pertain to language-minority issues. An additional 14
    jurisdictions in eight States previously were certified for Federal
    examiners by Federal courts under section 3(a), but the designations
    have since expired.
        \4\ The complete list of counties certified by the Attorney
    General, along with dates of certification, can be found on the website
    of the Department of Justice's Voting Section. See http://
    www.usdoj.gov/crt/voting/examine/activ--exam.htm.
    ---------------------------------------------------------------------------
        According to OPM, there have been no new ``federally registered
    voters'' (i.e., voters registered by Federal examiners) added in any
    jurisdiction throughout the country since 1983. Nor has the Department
    of Justice received any complaints about covered jurisdictions refusing
    to register Federal voters in decades.
        In addition to the great advances in minority access to the
    franchise today as compared to 30-40 years ago, the decline in
    registration-related complaints is also attributable to the passage of
    the National Voter Registration Act of 1993 (NVRA), which made voter
    registration dramatically more accessible.\5\ Prior to this 1993 Act,
    there were few Federal standards for voter registration. Through the
    NVRA, however, Congress established specific, uniform requirements for
    voter registration and State maintenance of voter registration lists.
    All of these requirements are applicable across the United States, not
    just in those jurisdictions certified for Federal examiners or
    otherwise covered by the Voting Rights Act. The reality today is that
    the only real importance of the Federal examiner provision from a
    practical standpoint is its function as a statutory prerequisite to the
    Attorney General's ability to call upon OPM to assign Federal observers
    to monitor particular elections in certified jurisdictions.
    ---------------------------------------------------------------------------
        \5\ 42 U.S.C. 1973gg et seq.
    ---------------------------------------------------------------------------
                               FEDERAL OBSERVERS

        At any time after a Federal examiner has been appointed to a
    particular jurisdiction, the Attorney General may request under section
    8 that the Director of OPM assign Federal observers to monitor
    elections in that jurisdiction.\6\ These observers are Federal
    employees who are recruited and supervised by OPM. They are authorized
    by statute to enter polling places and vote-tabulation rooms in order
    to observe whether eligible voters are being permitted to vote and
    whether votes casts by eligible voters are being properly counted.
    ---------------------------------------------------------------------------
        \6\ 42 U.S.C.1973f.
    ---------------------------------------------------------------------------
        The OPM observers work in conjunction with attorneys from the
    Justice Department's Civil Rights Division. Department of Justice
    attorneys assist OPM with the observers' training,
        brief the observers on relevant issues prior to the election, and
    work closely with them on election day. Federal observers are
    instructed to watch, listen, and take careful notes of everything that
    happens inside the polling place/vote-tabulation room during an
    election. They are also trained not to interfere with the election in
    any way. After the election, Justice Department attorneys debrief the
    observers, and the observers usually complete written reports on their
    observations. These reports are sent on to the Civil Rights Division
    and can be used in court if necessary.
        Most Federal observers dispatched to cover elections find no
    irregularities. Still, problems occur. Over at least the last decade,
    most of these have related to compliance with the language minority
    requirements of section 203.\7\ Where problems are discovered, a
    variety of actions may be taken depending on the relevant
    circumstances. On occasion, Justice Department personnel will assess
    the situation and work with county/parish officials on election day to
    clarify Federal legal requirements and immediately resolve the
    identified problem. Other times, the Department will send a letter to
    the jurisdiction following the election in which we identify certain
    incidents or practices that should be addressed or improved in the
    future (e.g., removal of certain poll workers, additional training for
    election-day officials, etc.). Department attorneys likewise may
    recommend further investigation. If no Federal issues are identified,
    the matter may be referred to State authorities. If necessary, the
    Department will commence a civil action (or contempt motion if
    applicable) to enforce the protections of the Voting Rights Act.
    ---------------------------------------------------------------------------
        \7\ 42 U.S.C. 1973aa-1a.
    ---------------------------------------------------------------------------
        Notwithstanding the general overall compliance with the Voting
    Rights Act, the Department of Justice has taken full advantage of the
    Federal observer provisions to help avoid slippage or complacency by
    covered jurisdictions. In 2004, for example, the Civil Rights Division
    worked with OPM to send 1,463 observers to cover 55 elections in 30
    jurisdictions in 10 different States. Meanwhile, already in 2005,
    Federal observers have been dispatched to 21 elections in 17
    jurisdictions in 10 different States.
        In areas of the country where Federal observers cannot be sent, the
    Civil Rights Division will send it own staff lawyers to monitor
    elections if it has received complaints or has uncovered credible
    evidence of possible violations of the Voting Rights Act. In fact, the
    great bulk of our recent enforcement cases since, say, 1993, have
    involved jurisdictions (e.g., Massachusetts, California, New York, New
    Jersey, Florida, Washington, and Pennsylvania) where there is no
    statutory authority to send Federal observers. We have expended
    substantial resources in this endeavor. For example, in 2004, the
    Department of Justice sent 533 departmental personnel to monitor 108
    elections in 80 jurisdictions in 27 different States. So far in 2005,
    the Department has sent 186 personnel to cover 24 elections in 21
    jurisdictions in 9 different States. Those monitors helped account for
    the record-setting work we have done in enforcing the Voting Rights Act
    in recent years.
        As I have said before to this Subcommittee, the Civil Rights
    Division has made the vigorous enforcement of voting rights a primary
    objective, and we have been very successful in doing so. Our election
    monitoring and observer coverage is just one small part of that effort.
    I thank the committee for the opportunity to submit this statement.

                                  ----------

    Inserted into the Record by Congressman Watt during the hearing: Letter
     from William Jenkins, Director, Homeland Security and Justice Issues,
     Government Accountability Office, to the Honorables Joseph Lieberman,
        Henry Wazman, and John Conyers, Jr. regarding the Department of
         Justice's activities to address past election-related voting
                                 irregularities