[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




                                 
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