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

                  HEARING ON OVERSIGHT OF HAVA IMPLEMENTATION

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

                                    HEARING

                                   before the

                       COMMITTEE ON HOUSE ADMINISTRATION
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                   __________

                HEARING HELD IN WASHINGTON, DC, FEBRUARY 9, 2005

                                   __________

          Printed for the Use of the Committee on House Administration
                       COMMITTEE ON HOUSE ADMINISTRATION

                            BOB NEY, Ohio, Chairman
    VERNON J. EHLERS, Michigan           JUANITA MILLENDER-McDONALD,
    JOHN L. MICA, Florida                    California
    CANDICE MILLER, Michigan               Ranking Minority Member
    JOHN T. DOOLITTLE, California        ROBERT A. BRADY, Pennsylvania
    THOMAS M. REYNOLDS, New York         ZOE LOFGREN, California

                               Professional Staff

                         Paul Vinovich, Staff Director
                    George Shevlin, Minority Staff Director

                        OVERSIGHT OF HAVA IMPLEMENTATION

                                  ----------

                          WEDNESDAY, FEBRUARY 9, 2005

                              House of Representatives,
                             Committee on House Administration,
                                                        Washington, DC.
        The committee met, pursuant to call, at 10:10 a.m., in room
    1310, Longworth House Office Building, Hon. Robert W. Ney
    (chairman of the committee) presiding.
        Present: Representatives Ney, Ehlers, Mica, Doolittle,
    Miller of Michigan, Millender-McDonald and Brady.
        Also Present: Representatives Hoyer, Holt, Jones of Ohio
    and Lofgren.
        Staff Present: Paul Vinovich, Staff Director; Matt
    Peterson, Counsel; Chris Otillio, Legislative Director; Jeff
    Janas, Professional Staff Member; George Shevlin, Minority
    Staff Director; Charles Howell, Minority Chief Counsel; Matt
    Pinkus, Minority Professional Staff Member; and Tom Hicks,
    Minority Professional Staff Member.
        The Chairman. The Committee will come to order.
        The Committee is meeting today to look back at the 2004
    elections and learn more about what went well with our election
    system and what needs to be improved. By gaining a greater
    understanding about what happened in the recent past, we
    hopefully will be able to ensure the effective administration
    and successful operation of our elections in the future.
        On November 2 of 2004, our nation conducted the first
    Federal general election governed by the requirements and
    instructions set forth in the Help America Vote Act of 2002,
    HAVA, the landmark election reform law that established new
    election administration standards that each state must meet
    and, number two, provided crucial federal dollars to assist
    states and localities in updating and improving their voting
    system so as to avoid an unfunded mandate.
        Mr. Hoyer is here and was the driving force behind HAVA and
    was correct in what he pursued. We had a wonderful working
    partnership with others, too many to name, but Mr. Blunt, Mr.
    Conyers and many other Members in the House and in the Senate,
    with Senators Dodd and McConnell and Bond, and had honest, real
    conference committees where we actually read these things 30 or
    40 some times. Wonderful staff both sides of the aisle.
        But HAVA went way beyond punch cards and went into a
    serious look at ways to tackle issues of disenfranchisement,
    tackle the issues of persons who have a form of a disability
    and what we can do to help them vote in secret for sometimes
    the first time in their lives; also, the college program, the
    high school program and created the Elections Commission. I
    have done this many times, but I thank Mr. Hoyer for remarkable
    work. There were people who told both of us, why are you doing
    this or you shouldn't be doing this, but we all continued on
    and I think really passed a remarkable bill.
        As Election Day 2004 approached, election officials faced
    numerous logistical challenges. First, aggressive voter
    registration drives resulted in election officials having to
    process and handle a greater than usual number of voter
    registration forms, many of which were submitted at or just
    before the prescribed deadlines and several of which were
    fraudulent.
        In addition, during the just-concluded election cycle,
    thousands of jurisdictions rolled out new voting equipment for
    the first time and thus had to provide extensive operational
    training to poll workers as well as instructions to millions of
    voters on how to properly use it.
        Finally, election officials confronted the highest rates of
    voter turnout since 1968. The Committee for the Study of the
    America Electorate estimates that roughly 120 million citizens
    cast ballots in the most recent Federal election, nearly 15
    million more voters than in 2000.
        In the weeks and months leading up to the Election Day, we
    heard stories of gloomy predictions about impending electoral
    meltdowns that would make the difficulties experienced in
    Florida in the 2000 Presidential election look minor in
    comparison. We were told voting equipment malfunctions would be
    widespread, delaying the report of election returns and
    potentially losing or stealing thousands upon thousands of
    votes. There were also allegations that a massive intimidation
    and suppression effort would disenfranchise many voters. Some
    forecasted that all these factors would combine to create a
    perfect storm in an electoral process that would paralyze the
    country's election systems.
        Yet, despite the formidable challenge faced by election
    administrators and notwithstanding the predictions of the
    skeptics, I am pleased to say that the 2004 election was
    carried out without any major problems or glitches. As the
    Associated Press reported, the big surprise of the 2004
    election was that, for the most part, the voting went smoothly.
    By the close of the polls across the country, despite heavy
    turnout, there were only scattered reports of equipment trouble
    and human error at the voting stations. And none were major.
        This was confirmed on election night by Joe Lockhart, Kerry
    campaign spokesman and strategist, who said, quote, ``We think
    the system has worked today''. There were thousands of lawyers
    deployed to make sure that no one tried to take advantage or
    unfair advantage, and by and large it has worked. I have seen
    very few reports on irregularities and even the ones we have
    seen you will find that there is not much going on, end of
    quote.
        Thus, to paraphrase Mark Twain, the rumors of the demise of
    the American election system were greatly exaggerated. For
    this, we must give enormous credit to the state and local
    election officials throughout the country for their hard work
    and extensive planning and preparation for this year's
    elections. We must also express tremendous gratitude to the
    millions of volunteer poll workers and election judges without
    whom the election process would be incapable of going forward.
    The accomplishments of those involved in the administration of
    this year's elections are especially impressive in light of the
    intense scrutiny under which they were operating in the United
    States.
        All of this is not to suggest that the 2004 election was
    completely problem free and went off without any hitches. There
    were problems. In any undertaking involving more than 100
    million people taking place on a single day in a country as
    vast as ours, there are bound to be mistakes. However, contrary
    to the overheated assertions of some, the voting problems that
    occurred did not disproportionately impact the voters of only
    one party, but rather affected voters from all political
    parties, Democrats, Republicans and Independents alike.
        There are those who have taken the scattered instances of
    irregularities and constructed out of them elaborate conspiracy
    theories about massive vote manipulation and election fraud. To
    the individuals that have put these theories out there, the
    mere fact that their candidate lost is sufficient proof that
    the election must have been stolen in some people's minds.
    These conspiracy theorists are impervious to evidence, logic
    and reason. Therefore, I don't think some people--and I am not
    referring to particular Members; I am just referring to people
    across the country--I don't think you can ever convince them
    that the candidate got beat.
        It is nothing new to the American system, I would note. It
    has happened on both sides of the aisle. We can't worry about
    trying to convince those who simply can't accept this reality.
        I am, however, much more concerned about some of the
    criticism that has been lodged by some Members, which criticism
    has gone beyond pulling out particular instances or thought
    process or administrative errors and has called into question
    the competence of state and local officials to effectively
    administer Federal elections. The individuals that have made
    these assertions obviously believe that a federal takeover of
    the voting process is the necessary solution to whatever
    election-related problems our country still faces. But I
    believe the administration of elections by a massive federal
    bureaucracy here in Washington, D.C., would represent the worst
    possible solution to the voting problems that exist.
        I happen to agree with Thomas Jefferson who once said that
    the government that governs best is the one closest to the
    people. In this instance, it is the state and local election
    officials who are closest to the actual voting process and who
    are in the best position, the locals, to understand what needs
    to be done to improve the functioning of elections in their
    respective communities. The Federal takeover of the process
    from A to Z would not improve our democracy. It would threaten
    it. It would make our system worse, I believe, not better.
        The purpose of today's hearing is to separate the facts
    from the fantasies, to begin sweeping away the innuendo and any
    attacks that are out there and begin to understand what
    actually did happen in the past election day. Moreover, it is
    my hope that today's hearings will provide us an opportunity to
    learn how well HAVA is working or not working at the grassroots
    level. We look back not to dwell on the past but to help us
    move forward so we can learn from any mistakes that have been
    made and try to avoid, obviously, repeating them. We can also
    learn from what was done right and thereby make those best
    practices more widespread.
        While the election is behind us, 2005 will be a very
    important year in terms of HAVA and its implementation. While
    the press and public tend to focus on these issues only around
    election time, the fact is work is constantly under way to make
    sure our elections run properly. It is an ongoing, endless
    process.
        I look forward to hearing from our witnesses about that
    important work. We are fortunate to have with us today a
    distinguished panel--two panels of witnesses, all of whom play
    vital roles in our election systems.
        Our first panel will consist of the current commission of
    the Election Assistance Commission, which was established by
    HAVA. And they are here to help. They are the good men and
    women of the country. The Commission was established by HAVA to
    help States and localities implement the new laws and
    requirements.
        On our second panel, there will be four Secretaries of
    State who oversaw elections during the 2004 process; and, of
    course, they have to deal with HAVA and how it is implemented.
        With that, I yield to my ranking member.
        Ms. Millender-McDonald. Thank you so much, Mr. Chairman.
        I am thankful to you for holding this hearing. I thank you
    for your sensitivity to the request of this ranking member and
    others to ask for a hearing to bring about the Secretaries of
    State, especially those where their States had quite a bit of
    difficulty. So I am very grateful to you and your sensitivity
    for that.
        I hope that this hearing will be the first of several
    hearings that will review how the Help America Vote Act, HAVA,
    was implemented and how the first post-HAVA election was
    conducted. HAVA, in my opinion, was one of the greatest
    bipartisan pieces of legislation this body has produced and
    passed.
        I am happy to have with us today the Minority Whip, the
    Congressman out of Maryland, Mr. Steny Hoyer, who was the
    architect of this piece of legislation, along with you, Mr.
    Chairman, because you two came together to try to see whether
    you could fix that which was broken in the year 2000 after that
    election. So I thank you very much.
        The 2000 Presidential election brought to light many
    problems with the election process. We heard reports of a wide
    range of voting and voter frustration. According to the 2001
    MIT CAL-TECH study, 3 million voters were turned away from the
    polls without casting a vote on Election Day 2000.
        This committee worked tirelessly to enact HAVA as a
    solution to these and other election concerns. As a result of
    HAVA, $3.5 billion were appropriated to the States to improve
    the voting process. HAVA set standards so voters are not turned
    away from the polls without casting a vote. Voters not listed
    as registered must be given a provisional ballot to be verified
    later and counted. But some very early election surveys have
    found that who is given provisional ballots and how they are
    counted vary from State to State. Unfortunately, there were
    reports of eligible voters being turned away from the polls
    without casting a provisional vote.
        Also, overseas and military voters reported problems with
    receiving absentee ballots. Now my staff has had the
    opportunity to speak with a number of Americans living abroad
    and listening to their voting experiences.
        Mr. Chairman, I am going to take a personal privilege, I
    guess, at this time, because I am deeply concerned about the
    lack of--and especially two Secretaries of State who have
    refused to come to this hearing today. And those two
    Secretaries of State have had some of the most egregious or at
    least alleged egregious irregularities of voting in their
    States.
        You know, as we celebrate Black History Month this month, I
    can't help but reflect on those whose lives were taken because
    they were not given a right to vote. They had to pay poll taxes
    back in those days and even had to learn the Constitution of
    the United States in order to vote. I am very concerned that
    today we find that some of their offspring are having some of
    the same problems. They were denied voting in some of the
    States, especially, as I have been told by data, Ohio and
    Florida.
        We witnessed about a week or so the elections in Iraq and
    how those persons were very courageous and came forth in spite
    of the threats of insurgents to vote. And when they voted they
    put up an index finger with a mark on it showing their
    solidarity and their appreciation for voting. It is really
    telling that in this country of ours, the greatest democracy on
    earth, there are some folks who cannot lift their index fingers
    to say that they had a right to vote because they were denied
    that.
        I just want to tell you, Mr. Chairman, the problems in Ohio
    were many. But the miscalculation of voting machines led to
    lines of 10 hours or more that disenfranchised scores if not
    hundreds of thousands of predominantly minority and Democratic
    voters. Ohio's Secretary of State's decision to restrict
    provisional ballots resulted in the disenfranchisement of tens
    if not hundreds of thousands of voters, again predominantly
    minorities and Democratic voters.
        This Secretary widely had a decision to reject voter
    registration applications based on paper weight. Amazingly,
    forms obtained from this Secretary of State's office did not
    comply with his own paper weight directives. The Secretary of
    State's decision to prevent voters who requested absentee
    ballots did not receive them in a timely manner and from being
    able to receive a provisional ballot. And yet the arrogance of
    this Secretary of State to not be here today is an affront to
    those persons who elected him to office.
        This is the people's House. We are here with a fiduciary
    responsibility to protect the people here in this House. Yet
    the arrogance of this Secretary of State and the one from
    Florida who refused to come is really an affront, Mr. Chairman.
        The voting problems encountered in Florida has been
    documented by the Election Protection Coalition: Improper
    requests for identification, confusion about how to implement
    provisional ballot requirements, concerns about the accuracy
    and functioning of voting machines, some poll workers who were,
    at best, untrained or at worst actively dissuading voters from
    casting votes, lack of required assistance of disabled voters.
        You know, Mr. Chairman, I am very angry, disturbed, that
    folks had to wait in line for 10 hours in this democracy and
    still had to be turned away. The disenfranchisement of the
    hundreds of thousands of folks, even with HAVA there in these
    States to be implemented, was ignored.
        So in order to restore the trust, the voters' trust, Mr.
    Chairman, and to mitigate the cynicism that is rising across
    this country with voters saying, do we really have a democracy,
    can we really vote in this great country of ours, I would
    suggest to you, Mr. Chairman, that you then take Congress to
    Ohio and Florida, if they do not have the sensitivity to come
    here. If they do not believe that they were elected by those
    voters in those two States who represent this people's House,
    that I will say to you Mr. Chairman, whether it be by subpoena
    or what have you, that we have before us in a timely manner
    these Secretaries of State who did not have the decency to come
    before us today.
        I am hearing that one is in town today and wanted to send a
    director of elections to come in his stead. That director was
    not voted by the people. He was voted by the people.
        So you can hear in my voice my deep regret that these
    Secretaries of State sought to not come today to the people's
    House to answer questions about some of the irregularities that
    took place in both the 2000 election and the 2004 election
    where in this democracy of ours we still have
    disenfranchisement of voters.
        I yield back.
        The Chairman. Thank the gentlelady.
        Mr. Holt, you are welcome to come to the dais. I would
    note, in the regular order of the Committee, I wanted to get to
    the Members of the Committee to speak and ask questions.
        Let me just say, though, and I said this on the floor of
    the House, there were certain things--my Secretary of State,
    for example, there were some allegations of some precinct
    situations in Franklin County, and I defended Mr. Blackwell on
    that because, frankly, he doesn't allocate the number of
    machines, so I did defend him on some of those points that were
    raised. And we are going to have hearings, but I don't want to
    get into case by case, county by county in Ohio.
        But, having said that, I think the Secretaries of State
    should be here. I am disappointed that they are not here. We
    will have other opportunities soon for them, but if they don't
    come here we will go there, and I don't have any problems going
    to Ohio and Florida. I don't know the rationale of why they
    aren't here, but I think this is important enough that they
    should be here.
        So that old expression, that mountain to someone or someone
    to the mountain, we can go to both states, and I have no
    problems in doing that. We can have disagreements, but, you
    know, you can't run and you can't hide. So, therefore, I have
    no problems at all to take us to the states. I commute anyway
    every week. I will go to Columbus.
        The Chairman. But I will share a terrible frustration that
    they are not here.
        Ms. Millender-McDonald. Mr. Chairman, irrespective of their
    rationality for not being here, the mere purpose that these
    States have been in the news daily shortly after the elections
    again should beckon for them to come here to answer questions
    that have not been answered by those who have that fiduciary
    responsibility, and those are the secretaries of state who
    conduct these elections. So for them not to be here, I hate to
    start off as the Ranking Member for the first time on this
    committee, I guess, being so vocal, but I don't curtail my
    thoughts on things that I feel are unjustified, and I do not
    want to even listen to any rationality that they have.
        The Chairman. I thank the gentlelady. We will work with our
    Ranking Member to have either additional hearings where they
    will come here, or we will go to the states, and maybe both.
        Any other additional opening statements by Members?
        Mrs. Jones. Mr. Chairman, I am Stephanie Tubbs Jones. I
    don't serve on the committee. I come from Ohio. I would like to
    thank you for being a man of your word. During the debate on
    the objection to the vote in Ohio, you stated that you would be
    holding hearings both in Washington and in Ohio about the
    voting activity. I just want to thank you for being a man of
    your word. I really appreciate it. When you decide to go to
    Ohio, I will be there with you. Thank you very much.
        The Chairman. Thank you. I look forward to it.
        Mr. Hoyer.
        Mr. Hoyer. Mr. Chairman, I have an opening statement, but
    if I can, I would include it in the record. I would simply say
    I thank you for holding these hearings. I thank you, as
    Stephanie Tubbs Jones has done, for being willing to confront
    in a bipartisan, nonpartisan way the issues that are raised
    with reference to ensuring that Americans not only have the
    right to vote, but they are facilitated in that vote. That is
    clearly the intent of HAVA.
        I have four or five things that I want to focus on with
    you. You and I have had the opportunity to discuss them. I look
    forward to working with you. If there is no objection, I would
    like to include my opening statement in the record.
        The Chairman. Without objection.
        Mr. Hoyer. Thank you.
        The Chairman. Mr. Brady.
        Mr. Brady. Mr. Chairman, I would love to go to Ohio. My dad
    was born there. I would never mind going to Florida, being from
    Pennsylvania. But if we have subpoena power, I would like to
    see them come here for a simple reason. I don't want to go to
    Ohio and I don't want to go to Florida and then have them not
    appear there either. There is no assurance, I don't think, if
    we go to Ohio--we have somebody that is right in town right
    now. Even though we are being in this town, in this State, can
    we be assured they will be there if we go there? This lady
    would be irate.
        The Chairman. I tried subpoena issues with kind of a
    wealthy gentleman who ran a 527 last year, and I wasn't too
    successful in getting him here. Maybe we could get him there
    with our secretary of state. That would be kind of nice. Having
    said that, we will work to get them here.
        Any other additional statements? Mr. Ehlers.
        Mr. Ehlers. Just one comment, Mr. Chairman. I have been in
    this business for probably longer than I should have been. The
    Presidential election 4 years ago and the problems that arose
    there were absolutely no surprise to me. Elections are run by
    individuals who are by and large very well-intentioned, trying
    to do a good job. Many of the poll workers do this only a few
    times a year, and they are wonderful people, they are willing
    to dedicate time and put in long days, but mistakes get made.
        In my very first election, there was a grievous error in
    one precinct in which the names were switched. In other words,
    people who thought they were voting for me were voting for my
    opponent. People who thought they were voting for my opponent
    voted for me. That is just an example of what goes on. I
    personally am still convinced that Richard Nixon won the
    election in 1960 until Mr. Daley stole it from him in Illinois,
    and that LBJ never rightfully won his first election to the
    U.S. Senate.
        A lot of things go wrong in elections, and we have to be
    aware of that. Our goal here should not be vituperative or
    accusatory, but simply saying we are doing our best to make
    sure that the system works fairly, properly, and, as Mr. Hoyer
    said, that voting not just takes place, but it is facilitated
    for the average citizen, because most citizens--and I have
    heard a lot about educating the voters. That is nonsense.
    People who do something once or twice a year, you are not going
    to educate them. You have to develop a system that really
    facilitates the proper operation. That is why when we did HAVA,
    I wrote the technical standards part and insisted that human
    factors be part of the evaluation, because I think the human
    factors are very important. When you design the system, you
    want to design it so that individuals who do this only a couple
    of times a year are not confused, and they get it right, and
    that everything is done properly and fairly. Thank you.
        The Chairman. The gentlelady?
        Mrs. Miller. Thank you, Mr. Chairman. Just a brief comment
    as well. I don't really have an opening statement. It is true.
    As you mentioned, I had been a secretary of state in Michigan
    for 8 years before I got this job. Elections are not perfect.
    In fact, what happened in the Presidential election 4 years ago
    may have shocked much of the Nation, but a lot of people that
    were involved in the elections community were aware of various
    problems that had existed, and sometimes they just didn't come
    to light to the extent that they did then.
        And so I certainly want to commend both our chairman and
    Mr. Hoyer as well for their work on HAVA and all the great work
    that came out of this committee on that, because I think every
    one of us understands that elections are the foundation, quite
    frankly, to our democracy here. If at any time there is any
    citizen that feels that their vote will not be counted
    properly, that is a problem for all of us that we have to
    address.
        I will tell you, though, as we get into the testimony, I
    think it is important that we do not have selective outrage in
    some States and perhaps not others. For instance, in some of
    the provisional balloting that was done, I was aware that I
    think in every battleground State this year, there were
    lawsuits filed to allow people to vote provisional ballots in
    any precinct even if they were not registered there. This was
    done, I believe, erroneously, because, of course, if you have
    more than one congressional district--in a lot of large areas
    they do. In a city--for instance, in a city like Detroit, in
    Michigan, we have several congressional districts drawn
    throughout the city, and so why would you want to be
    disenfranchising people not to be able to vote for their Member
    of Congress if they were in the wrong precinct? Yet those
    lawsuits were, as I say, in all the battleground States. I know
    in Ohio as well. I will speak for Mr. Blackwell. He was upheld
    by the court in the provisional balloting that he did there.
        But again I think it is very important for all of us that
    we do recognize how important it is that every single vote
    counts.
        I will also just mention since we are talking about this
    and not having people disenfranchised, I was very proud that
    when I was the secretary of state of Michigan to be recognized
    nationally by the NAACP with the highest grade in the entire
    Nation for making sure that in our urban areas, et cetera, that
    every minority, every woman, everyone had an opportunity to
    have their vote counted properly with election reforms and
    that.
        I would say that my approach to elections is the same as my
    approach to life, I think. In the largest room is always the
    room for improvement. And with all the improvements that we are
    going to be hearing about that happened under HAVA in this last
    Presidential election, it is still not a perfect system. There
    is plenty of room for improvement. I am certainly looking
    forward to working with all of you to continue to improve that
    system.
        As we talked a little bit earlier about technology, the
    technology is out there. It is unbelievable the remarkable
    technology that can be utilized for individuals to make sure
    that their vote is counted properly, quickly, in a timely
    fashion, et cetera. I am very interested to hear the testimony
    of our panelists. Thank you.
        The Chairman. Any other comments? If not, we will move on
    to our four Commissioners. We have Commissioner Gracia Hillman,
    the current EAC Chair who was recently at the swearing-in
    ceremony--I was there, it was a wonderful event, with Mr.
    Larson, also with Congresswoman Pelosi; and also Commissioner
    Paul DeGregorio, the current Vice Chair of the EAC;
    Commissioner DeForest, known as Buster, Soaries; and
    Commissioner Ray Martinez.
        I just wanted to note, and we will get on with the process
    here, but I think all four of you have served with integrity. I
    think you were wonderful appointments. You have taken your job
    seriously. I think the Commission has functioned as the law has
    set it up, in a wonderful manner. I think you have added in a
    short period of time and with some difficulties beyond your
    control of the appointment process and moneys and things of
    that nature--you just proceeded on, all four of you. I think
    you are four remarkable people that have added a lot already to
    the Commission.
        With that, we will start with the Chair.

       STATEMENTS OF GRACIA HILLMAN, CHAIR, ELECTION ASSISTANCE
     COMMISSION; PAUL DeGREGORIO, VICE CHAIR, ELECTION ASSISTANCE
      COMMISSION; RAY MARTINEZ, COMMISSIONER, ELECTION ASSISTANCE
      COMMISSION; AND DeFOREST BLAKE SOARIES, Jr., COMMISSIONER,
                     ELECTION ASSISTANCE COMMISSION

                      STATEMENT OF GRACIA HILLMAN

        Ms. Hillman. Thank you very much, Mr. Chairman.
        Good morning, Mr. Chairman and members of the committee,
    Mr. Hoyer, Mrs. Tubbs Jones, and I don't know if Mr. Holt is
    still there. Thank you very much for your kind words. I would
    say that I am absolutely delighted to be serving with the
    members of this Commission. I couldn't ask for better
    colleagues. It has been a wonderful experience.
        Vice Chairman DeGregorio and I will take just a few minutes
    this morning to review the highlights from our testimony. We
    appreciate the vested interest that this committee has in our
    work. We recognize the importance of what you have done for
    America as the authorizers of HAVA, and we look forward to
    today's discussions.
        Mr. Chairman, as you and the members of this committee
    know, HAVA represents an unprecedented effort by Congress to
    enhance the administration of Federal elections. Congress has
    matched HAVA mandates with funding and guidance through EAC
    while recognizing the important role of the States in
    conducting Federal elections.
        HAVA works, and it is off to a good beginning. EAC is
    committed to follow the prescripts of HAVA to make certain that
    the law is fully implemented in a uniform and consistent
    manner. HAVA has also provided an excellent vehicle for the
    Federal Government through EAC to work in close partnership
    with the States.
        The issues and problems that came to the forefront during
    the 2000 presidential election were significant. It is clear to
    us, Mr. Chairman, that HAVA was not contemplated as a short-
    term or partial solution to these problems. Rather, HAVA sets
    out a comprehensive program that spans the course of many
    years, and that is how it should be.
        EAC is in a very different position today than when we
    first appeared before this committee 1 year ago. We have
    established EAC as a fully functioning Federal agency. Unlike
    last year, we now have a budget that permits us to have a staff
    and enables us to conduct a modest amount of research and
    study. Let me take a moment to highlight some of the
    significant accomplishments that were achieved in 2004.
        Working with GSA, we distributed over $1.5 billion in Title
    II payments to the States. As of today, States have received
    over $2.2 billion in HAVA funding. I call your attention to the
    chart on pages 4 through 6 of our testimony.
        On the matter of provisional voting, let me note that it
    was not a new concept for all States; nonetheless, it turned
    out to be a painful exercise for many. Provisional voting in
    2004 became what was the hanging chad in 2000. Diverging
    definitions of jurisdiction drew national attention to
    provisional voting. There was litigation in at least five
    States, and while this may seem like negative and unwanted
    attention, these lawsuits produced a reasonable and workable
    rule of law regarding provisional voting.
        Having said that, let me state that provisional voting
    works. I call your attention to the chart on pages 9 and 10 of
    our testimony. In the November 2004 election, over 1 million
    votes were counted through provisional ballots. Based on a
    preliminary examination of data reported to us from 41 States,
    we find that of 1.5 million provisional ballots cast, 68
    percent were counted. Some will ask, what about the 500,000
    that weren't counted? We don't know the answer to that yet, but
    we will once we have completed our election day study and
    conducted hearings. All we know for now is that provisional
    voting identified 500,000 voters who were deemed not eligible
    to cast a ballot even though we suspect that unfortunately in
    many instances the reason was that the person appeared in the
    wrong jurisdiction.
        I have mentioned our election day 2004 study. Through EAC,
    the Federal Government will collect and study a wide range of
    data related to the November election. The data that is being
    collected on both a county and State level include information
    about ballots cast and counted, the types and numbers of voting
    systems used, military voting, and the numbers of people
    registered and purged, and methods of voter registration and
    purging. Once the final data is received by the end of March of
    this year, we will compile a comprehensive report. The
    information will help measure future progress under HAVA.
        For many years now, America has experienced a shortage of
    people to work at the polls on election day. Election officials
    depend on people to volunteer for this 1- or 2-day job, but few
    respond to the call for long hours and short pay. To assist
    with this critical problem, EAC has two components to its
    national poll worker initiative. One is the highly successful
    HAVA college poll worker program. The other component is
    targeted to engage the involvement of corporations, private
    organizations and private citizens to help election
    administrators recruit people to serve as poll workers.
        Through EAC's efforts in 2004, 1,700 college students
    worked at the polls that we know of, and 12 States reported a
    full complement of poll workers at every location. EAC's
    observations from the November election suggest that many
    things were done right, but there is still a lot to be done.
    Vice Chairman DeGregorio will discuss this a little further in
    his remarks.
        I will wrap up my presentation by quickly reviewing the key
    components of our research and guidance agenda for 2005. We are
    committed to providing the guidance, assistance and information
    necessary to aid the States in their implementation of HAVA.
    This will include guidance on voluntary voting system
    standards, provisional voting, voter identification
    requirements, voting information through signage at the polls,
    and we will review and update the national voter registration
    form and the instructions that accompany that form.
        Our priorities also include our efforts to assure that HAVA
    funds are spent properly and in compliance with the law. As
    reported earlier in my remarks, States have already received
    nearly $2.2 billion in Federal funds. EAC will monitor the use
    of these funds through regular reporting from the States and
    through annual audits.
        Mr. Chairman, I conclude my remarks by noting that HAVA is
    improving the Federal election process. Election reform is not
    a process of immediate gratification. Rather, elections are
    complex and dynamic events that require years of advance
    planning and careful thought. Changing and improving that
    process likewise takes planning, careful thought and, most
    importantly, time.
        I continue to feel privileged and honored by having the
    opportunity to serve America with my distinguished colleagues
    as a member of the Election Assistance Commission. Thank you
    for the opportunity to address this committee today.
        The Chairman. Thank you.
        The Chairman. We will move on to Commissioner DeGregorio.

                      STATEMENT OF PAUL DeGREGORIO

        Mr. DeGregorio. Good morning, Mr. Chairman, Ranking Member,
    members of the committee, Mr. Hoyer and visiting Members.
        As our Chair indicated, HAVA has been successful in
    improving the process of conducting elections in the United
    States. As one who served for 8 years as a local election
    official, I believe this Federal assistance has been long
    overdue.
        I would like to complement our Chair's remarks and also
    build on HAVA's successes in 2004 and how the EAC will expand
    that success to help foster an environment of excellence in
    election administration in America. On election day 2004, EAC
    Commissioners traveled to several States to observe firsthand
    the events, successes and problems that occurred in the polling
    places of America. While the Commissioners saw many HAVA
    successes, such as persons casting provisional ballots, we also
    witnessed poll workers who were not always so clear on when a
    provisional ballot should be offered to a voter. We saw polling
    places where informational signs were posted and polling places
    where the required signage was missing. My colleagues and I saw
    voters enjoying the benefits of upgraded and advanced voting
    machines, as well as voters who cast their ballots on devices
    that were well over 50 years old. We witnessed polling places
    that operated with the utmost of efficiency and precincts where
    voters stood in lines for hours to exercise their right to
    vote. The data that we are now collecting from the States on
    the 2004 voting process, including voting by our military men
    and women, will further inform us and others on what worked and
    what can be improved.
        In 17 States funding by HAVA further influenced the 2004
    election through the development and use of statewide voter
    registration databases. These databases are mandated under
    section 303 of HAVA and require States to develop a single,
    uniform, interactive voter registration list by 2006. Once
    implemented, such lists will go a long way toward reducing
    duplicate voter registrations, updating addresses, reducing the
    need for provisional voting and certainly help prevent fraud.
        HAVA directs the EAC to develop voluntary guidance to the
    States on these databases. We have impaneled a working group to
    work with the States to identify their questions and needs so
    that we have such guidance in place by this summer.
        One of the most important and tangible elements of HAVA is
    the Federal Government's significant financial assistance to
    the States to update and procure voting equipment. Since the
    2000 elections, about 25 percent of U.S. voters have
    experienced new voting devices. If States are to be in
    compliance with HAVA deadlines, we fully expect that another 30
    percent of U.S. voters will experience new voting equipment in
    2006. A significant number of States are now in the process of
    procuring new voting equipment, including equipment that serves
    the needs of the disabled community.
        One of the EAC's most important mandates under HAVA is the
    testing and certification of voting systems. Fundamental to
    implementing this requirement is the development of revised
    voluntary voting system standards which will prescribe the
    technical requirements for voting system performance, security,
    auditability and human factors; in addition, to identify
    testing protocols to determine how well systems meet these
    requirements. Another important element is the certification of
    testing laboratories to ensure that competent resources are
    available to perform testing. The final element is the process
    of reviewing the system test reports to validate that systems
    have met their standards and therefore can be declared
    qualified for use in Federal elections.
        Since the very first days of our existence, the EAC has
    fostered a close partnership with NIST to implement all of
    these important goals that it clearly outlined in HAVA. Our
    work on each of these elements is discussed in much more detail
    in our written submittance to this committee.
        I would like to report that our EAC technical development
    committee is well on its way to producing draft voluntary
    system guidelines that will be vetted by the EAC Standards and
    Advisory Boards and the public and ultimately adopted by this
    Commission. Our charge to the Development Committee and to NIST
    has been to build upon and strengthen the existing standards
    particularly in the area of security of voting systems and to
    do so in the 9-month period that HAVA mandates.
        We fully expect to see these draft guidelines in April of
    this year. We believe that the EAC's work will be of great
    benefit to the States as they take advantage of the significant
    Federal research and make their own determination of which of
    these guidelines and what particular voting systems might work
    for their election officials and for the voters in their
    States.
        Mr. Chairman, as we conclude today's testimony, I certainly
    concur with our Chair and my colleagues that HAVA is improving
    the election process in America. HAVA has effectuated
    substantial change in a climate of intense scrutiny. Voting
    technology has improved. More eligible voters have been able to
    cast their ballots. Voters are better informed of their rights
    and how to exercise them. However, a vast amount of work is
    left to complete. More than a half of the country is in the
    process of upgrading its voting technology, implementing
    statewide voter registration databases and perfecting their
    processes for provisional voting and voter identification.
    These States need guidance. The EAC will provide it.
        Mr. Chairman, thank you for the opportunity to address this
    committee today. It is an honor to serve on this Commission
    with these three distinguished Americans. We will be happy to
    answer any questions that you and other Members may have.
        The Chairman. Thank you.

        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Commissioner Soaries.
        Mr. Soaries. Mr. Chairman, we are going to defer to the
    committee members and allow the rest of our time to be spent
    answering questions.
        The Chairman. Thank you. Mr. Martinez?
        Mr. Martinez. Thank you, Mr. Chairman. I will defer as well
    to the statements by our Chair and Vice Chair and look forward
    to questions.
        The Chairman. Thank you. With that, let me just begin again
    by thanking all of you for being here. In the written comments,
    it includes data about provisional voting in 2004 that includes
    the numbers of provisional ballots cast and counted in each
    State as well as the corresponding acceptance rate. I noticed
    that Ohio's acceptance rate, my State, was nearly 80 percent,
    which appeared to put Ohio's rate in the top five, I think, of
    all the States. Is that correct on that, top five?
        Ms. Hillman. Yes.
        The Chairman. As one might expect, the provisional ballot
    data shows variances amongst the States. A number of factors
    could potentially affect how many provisional ballots were cast
    in a State and what the acceptance rates were. Factors such as
    whether a provisional ballot had to be cast in the assigned
    precinct in order to be counted or not, whether a statewide
    voter registration database was in place, the extensiveness of
    a State voters' education and poll worker training program, the
    rigorousness of a State's verification standards. Have you been
    able to discern any patterns so far regarding how those factors
    that I mentioned impacted the provisional ballot numbers and
    the acceptance rates in other States?
        Ms. Hillman. Mr. Chairman, I am afraid that we have not
    been able to discern that yet. We are in the process of
    analyzing the data that has been submitted. We have received
    data from 41 States. We don't know if the other States will
    submit the information, but we expect that we should have that
    analysis completed by late March or early April.
        The Chairman. I am going to be brief here because I want
    everybody to be able to get questions. Let me just go over a
    couple of things very quickly. I think also looking at the
    military issue and disenfranchisement there, I know we didn't
    hear a lot this election as we did in 2000, but I was in
    Afghanistan and in the Gulf. I talked with hundreds of our men
    and women in uniform. It was a great concern before the
    election. I know the Defense Department had a project, and they
    canceled that. So I think there are a lot of issues that even
    though we are not hearing about them, I would still like to
    know about our men and women who as we speak are sacrificing
    and giving of their lives for democracy; I would still like to
    know what was the success or not of those votes.
        Also, the staff, some of whom are here, Republican and
    Democrat, recently went over, and I went with them, to Lebanon,
    Egypt and Turkey and we talked to expats there. One lady, I
    think it was in Turkey, had mentioned that the Virginia Board
    of Elections e-mails her the ballot. She can then print it out
    and fill it out and mail it back in. I have never heard of
    that, but we had heard different cases. And other people
    couldn't get their ballots.
        Also, I think we need to look at American citizens overseas
    and how that works. I know the embassies have really been
    trying to intensify that program.
        I hope just because we are not hearing about the military
    that we will be able to explore how well that went. Have you
    heard anything? I should ask you that.
        Mr. DeGregorio. Mr. Chairman, you brought this issue up in
    our first hearing last summer. We did issue a best practices
    report for military and overseas voting in September to
    encourage the States in this area. The Commission will be
    collecting data and is collecting data right now on voting by
    military and overseas voters. This is an important issue to us
    because we know that--we want to make sure that every voter,
    including those overseas, have the opportunity to participate
    in elections.
        We have heard some anecdotal data from different States
    that there were problems. Certainly States that have late
    primaries and get their ballots out late to our citizens
    overseas is problematic in those States. The best practices
    encourages States to do something about that.
        Once we collect our data, we will have some reports to give
    you and more information that I think will be helpful to
    improve this process in future elections.
        The Chairman. Thank you.
        One other question I have would be about the new guidelines
    that will be issued this year, perhaps maybe in the spring or
    early summer. A lot of States are delaying purchasing their new
    voting equipment until these guidelines are released. Do you
    believe that such States are allowing themselves sufficient
    time to come into compliance with the voting systems by next
    year?
        Mr. Martinez. Mr. Chairman, HAVA requires a framework, if
    you will, for the EAC to work under with regard to the
    evaluation and the review and even the updating, if you will,
    of the current voting system standards, or guidelines as they
    are called actually, in the Help America Vote Act. We inherited
    the voting system standards that were promulgated by the FEC
    prior to the creation of the EAC, the Election Assistance
    Commission. So what we are trying to do is to work in a very
    timely fashion as is required by HAVA to do our due diligence
    in working with our partners, with NIST over at the Department
    of Commerce, with the Technical Guidelines Development
    Committee which was created by HAVA to ensure that we can
    review the current standards, identify gaps that exist in the
    current standards, and put forward a work product in as timely
    a fashion as possible to the States so that they can have these
    guidelines when they make procurement decisions about voting
    systems.
        Those deadlines are happening for States. It is upon the
    States now so that the work product that we need to produce is
    needed by States. There is no question about that. We are
    working again with our partners, TGDC, NIST, as well as State
    and local governments, to try to produce a work product as
    quickly as possible, but in keeping with the framework that was
    developed under the Help America Vote Act.
        The Chairman. And I think it is incumbent upon us--as
    officeholders I am going to put out a letter in Ohio to also
    clarify how this process works, and if they have questions,
    they should call the EAC. There are a lot of myths in my own
    State. We are sitting on top of $132 million that is sitting
    there.
        Now, local boards of elections, Democrat and Republican
    members, in my own county, Bill Shubert is a great election
    official down there, a Democrat; Frankie Lee Karnes--I can name
    good Democrats and Republicans--she is a Republican. They
    pursue the fact from the fiction, but there is a lot of
    information in my own State that is put out there that we
    didn't provide enough money. We do have $900 million to go. But
    Steny Hoyer and the Speaker and the Minority Leader Ms. Pelosi
    and a lot of people, Chairman Young, the previous Chair of
    Appropriations, have worked very hard to get to that $3
    billion. But when officials, including in my own State, say,
    well, the Feds didn't pay for everything, well, we had an
    agreement, $3.9 billion fully funds, and we are going to get
    that other $900 million. But my own State is sitting there with
    $132 million sitting.
        I would hope that a lot of these myths are worked through
    by our officials with the local boards, and that way we can get
    beyond that and try to come into compliance so that States like
    mine are not going to head into a train wreck.
        With that, I am going to ask one brief question, if you
    want to comment, and move on to our Ranking Member. On February
    6 of 2005, the National Association of Secretaries of State
    passed a resolution urging Congress not to fund or authorize
    the EAC beyond the 2006 Federal elections. Any reaction to
    that?
        Ms. Hillman. Yes. But before responding, I would just like
    to call to the committee's attention that on pages 7 and 8 of
    the testimony, there is a chart that shows where each State is
    with respect to voting system procurements. Some have gone
    ahead. Some are in the process. And some, as you have
    indicated, have not yet begun.
        With respect to the resolution that was passed by the
    National Association of Secretaries of State, I suppose the
    best way to describe our feeling about it is that it is a
    curious thing that was done. We all have worked, the four
    Commissioners, in government, whether at the local, State or
    Federal level. We are aware of the inherent and sometimes
    healthy tension between the States and the Federal Government
    and where the line begins and where it ends. I have observed
    through the work that I did on renewal of the Voting Rights Act
    in 1982 and on passage of motor voter in 1992 pushback from
    some of the States not wanting to continue under the oversight
    of the Federal Voting Rights Act and wanting to resist Federal
    imposition of the components of the Motor Voter Act. This is, I
    must say, the first time that I have experienced the shove
    personally.
        So it doesn't surprise us that the States would feel that
    way, the sentiments that were expressed in the resolution. We
    absolutely respect the right of the secretaries of state to
    express their opinion as they see fit. What was surprising to
    us was the way that it was done. We have had many occasions
    throughout the past year to meet with secretaries of state, to
    meet with the secretaries of state individually, to interact
    with NASS as an organization. They serve on our Standards
    Board, members do. Secretaries of state serve on our Board of
    Advisers. They have all along the way had opportunities to
    comment on and respond to the various documents that we have
    issued, the best practices.
        Up until Sunday of this week, we did not hear from NASS
    that it was so concerned about the sentiment expressed in its
    resolution that it was preparing to take that kind of action.
    Even as late as last week, we were with several secretaries of
    state at a 2-day meeting of our Standards Board. We were on the
    agenda of the NASS midwinter conference for several weeks, if
    not months, so they knew we were coming. And I guess we thought
    that there would have been a dialogue, an exchange, between the
    Election Assistance Commission and NASS. If following the
    dialogue they felt that they wanted to proceed with such a
    resolution, well, then so be it, we would have respected that.
    But we did not have that opportunity to have the discussion.
        There are two specific allegations, if you will, that have
    been made. One was about the EAC performing--overstepping its
    boundaries and beginning to act as a regulatory agency. We know
    that our record is complete, and any examination of any of our
    documents, our meetings, our hearings would indicate that we
    have, in fact, gone out of our way to respect HAVA. We are
    guided by the Help America Vote Act. We know the language
    guidance and guidelines were very carefully crafted and put
    into HAVA for specific reasons.
        The one area where we do have regulatory authority, the
    National Voter Registration Act, is, in fact, one area that we
    haven't been able to get to yet in part because of the overload
    of work and the lack of resources, but it certainly is
    something we will get to this year.
        And then the other was a suggestion that we apparently
    publicly stated we didn't know when the draft guidelines
    concerning the voting system standards would be available.
    Again, the record will show at various of our meetings, the
    Technical Guidelines Development Committee meetings and other
    correspondence, we have always said we fully expected to
    receive the draft standards from the Technical Guidelines
    Development Committee and the National Institute of Standards
    and Technology by the end of March, early April, which is the
    9-month process prescribed in HAVA, that there is another 90-
    day process that we have to go through, again prescribed in
    HAVA, but that draft standards would be available in the
    spring, and that we would work very hard to complete that
    process and issue the first set of guidelines in the summer of
    this year.
        The Chairman. I just wanted to note, and we will move on to
    the Ranking Member--I just wanted to note when we crafted HAVA,
    Congressman Hoyer and I were very, very careful to not create
    an EPA of elections where people were grabbing rules every 3
    hours and throwing them out, turn the light switches on at the
    Board of Election in Belmont County at 9 o'clock, or the
    Secretary of State has to have a yellow tie or a blue blazer,
    square footage. We were really careful not to do that. On the
    other hand, we made it very clear, too, that we weren't going
    to create something that was toothless; that we were going to
    create something that had some teeth in it.
        So I think the balance and the blend that we wrote into
    that law after a long process of consideration, I think it
    worked, and there are some standards and some things that EAC
    can do. So I think it was a good blend, and I haven't seen
    anything that you have done that has exceeded that or altered
    from the course.
        Ms. Hillman. Mr. Chairman, if I might say, we also
    recognize that we have a tremendous amount of work to be done
    under HAVA. We fully intend to do that. We look forward to
    working with NASS as an organization and the secretaries of
    state throughout the country as we have done for the past year.
        The Chairman. Thank you.
        We have been joined by the gentlelady from California
    Congresswoman Lofgren. Welcome.
        I will yield to our Ranking Member.
        Ms. Millender-McDonald. Thank you so much, Mr. Chairman.
    Indeed we are joined by this outstanding, extraordinary woman
    out of the great State of California, Congresswoman Zoe
    Lofgren. I am told that she has come to us unofficial yet, but
    to be official soon, and so with unanimous consent, can she
    participate in the committee? And we welcome her.
        The Chairman. Welcome.
        Ms. Millender-McDonald. Mr. Chairman, when I was here on
    the committee in the 108th Congress, I was the only woman,
    female, sitting on this dais, and now there are two who are
    joining us. I must say, help is on the way.
        Ms. Lofgren. If I may, Ranking Member, Mr. Chairman, I am
    unofficial as of yet, but I did tell our Leader that I would be
    happy to serve. I very much look forward to working with the
    committee on the important issues that face us.
        The Chairman. Welcome. We are glad to have you.
        Ms. Millender-McDonald. Thank you, Mr. Chairman.
        I was indeed very touched by your annual report that I
    received and your title Preparing America to Vote. That is just
    an extraordinary, impressive title of your report, as you
    prepare America to vote. We are so absolutely privileged to
    have the Election Assistance Commission to provide the type of
    leadership for that to take place.
        I agree with the chairman that when they developed HAVA,
    they carefully ensured that it would not become a regulatory
    agency. This is indeed what you have not done, and you have
    tiptoed around all of that to circumvent you from doing that.
    We appreciate that.
        As I looked at your report, in light of your having 10
    months later coming on, required by HAVA to get started, the
    major accomplishments that you have had are really very telling
    of the hard work you have already done, and that is including
    the release of HAVA funding to the States, local election
    administrators, enhance their processes, various guidance and
    outreach projects to assist State and local governments in
    implementing HAVA mandates. And you have developed a
    comprehensive best practice that has been shared by the
    secretaries of states. I think that is to be commended. You
    have disbursed approximately $1.3 billion in HAVA's fund to 44
    States, so that that will give the election officials across
    the country the opportunity to implement the various
    administrative mandates contained in HAVA.
        And so we applaud your work and applaud the many times that
    I called on you, especially when the previous Chair--the
    Reverend Dr. Soaries was the Chair, every time I called, he
    says, I am coming, yes, what is it? But he provided the type of
    leadership to train those persons who were asking to be poll
    workers.
        I am thankful to you for providing the funding through
    grant to the California University of Long Beach. They have
    done a tremendous job.
        My question to you, to any of you who wish to answer, the
    chairman touched on ensuring voter system standards and
    guidelines. Given that 44 States asked for waivers on
    implementing these guidelines for the 2004 elections, what
    progress have States made toward achieving this mandate in
    2006?
        Mr. DeGregorio. Thank you, Ms. Ranking Member.
        As you see, and you will see in our report, many States
    have worked towards achieving the HAVA requirements that will
    come into play in 2006, but the fact of the matter is that
    many--most States are in the process of complying with the
    element of developing a statewide voter registration database
    and procuring election systems, voting systems. Many States
    implemented systems in 2004 on a partial basis. The State of
    Pennsylvania was 60 percent compliant with the statewide voter
    registration database. They made an attempt to see how it would
    work. But there is a lot of work to be done.
        This Commission is committed to provide guidance on the
    statewide voter registration database and, as our Chair has
    stated, to provide voting system guidelines by this spring, the
    initial draft set, and then by this summer the final set. We
    think that that will help the States as they move in the
    process of complying with HAVA, as they purchase new equipment
    and comply with the statewide voter registration database
    requirements.
        Ms. Millender-McDonald. So that gives them adequate time,
    then, to set up for the 2006 election, do you think?
        Mr. DeGregorio. As a former election official, I know that
    you like to have more time than that because you want to
    certainly--whenever you introduce a new system, there is voter
    education that has to come into play to make sure voters are
    educated about a new system, and you want to make sure that
    your poll workers are trained. We have found in many States
    that have gone to electronic voting, that some of the older
    poll workers just don't want to deal with it, and they quit.
    That is why we made a major effort in 2004 to help recruit new
    poll workers. The program you spoke about in your district was
    one that helped get younger people involved. I think that
    effort needs to be continued and certainly enhanced in 2006 as
    the States move towards new equipment and dealing with the new
    equipment on a sustainable basis.
        Ms. Millender-McDonald. In turning to your chart in your
    presentation here today, it states here that in Alaska there
    were 96.6 percent provisional ballots counted. Conversely, in
    Hawaii, it was only 6.9 provisional ballots counted. The
    variances in the percentage of ballots counted from State to
    State is reflective of a number of factors including the
    definition of the jurisdiction. Is that one of the core factors
    in this type of variances? And what can we do to ensure that we
    close that gap, if any?
        Mr. Martinez. I will be happy to address that,
    Congresswoman. I think the Chair actually spoke about this as
    well a while ago, and that is the various factors that we see
    in implementing provisional voting.
        Many States, at least 17 States, had no experience prior to
    the passage of this Federal law with implementing any type of
    provisional voting, whether it was called challenge ballots or
    affidavit ballots which many States had prior to HAVA making
    this a requirement for all Federal elections across the
    country. So I think you had many factors, just inexperience in
    implementing a new procedure.
        What we are seeing is that the business of election
    administration becomes more complex every election cycle for
    various factors. New technology, as the vice chairman just said
    a little while ago, makes it a little bit more complicated. So
    you have to have poll workers that are better trained or at
    least retrained pretty much for every election cycle when
    changes are made. Provisional voting was one major change. But
    you also had States that had a lot of experience in provisional
    voting as well, like California, that had been doing
    provisional voting for a number of years so it wasn't new.
        So what I think we are seeing, we have to go and take a
    look at what happened and take a look at those States that
    implemented this law for the first time and find out what their
    experience was; go back to States that have been doing this for
    a while, talk to them and see how it went in their experience.
    In other words, I think what we will find is that States that
    had clear and uniform procedures, written procedures, and did
    an adequate job of informing their voters, here is how we are
    going to conduct this business of provisional voting, probably
    had a better success rate, if you will.
        If your voters were informed, if you decided in your State
    that you were going to count only those provisionals that were
    cast in the correct precinct, then it is incumbent upon you to
    make sure that your voters know this is how we do it in this
    jurisdiction, and also to take the necessary step,
    Congresswoman, to make sure your poll workers are trained and
    have the resources they need, that they are trained on your
    written policies and procedures, and that they have the
    resources they need to redirect voters appropriately if and
    when that time comes.
        Ms. Millender-McDonald. That is key. As the gentlewoman
    said out of Michigan, the former secretary of state, that there
    are still some concerns about using a provisional ballot
    outside of your jurisdictional precinct. Again, education is so
    critically needed, and uniformity is needed in terms of all of
    these secretaries of states being on the same page.
        Mr. DeGregorio. Congresswoman, if I may just add to my
    colleague's comments, though. Another element that I think is
    at play here is when we see high percentages of people where
    their ballots were legitimately counted, that indicates that
    they were legitimately registered to vote. I think what
    happened this year in some States, particularly battleground
    States, is that we saw groups bringing in thousands and tens of
    thousands of voter registrations at the last minute into the
    election office, some of these registrations going back 6, 7,
    8, 9 months past where people had actually registered in
    February but not turned in until October. I think election
    officials had trouble managing that, that last-minute surge of
    voter registrations. They didn't get them on the rolls, but
    they voted provisionally, and they found that ballot, they
    found that registration, and so that was counted.
        So you saw those high numbers in some States, particularly
    battleground States, and I think part of the issue here that we
    have to deal with is how do we deal with groups that registered
    voters not getting registrations in on a timely basis.
        Ms. Millender-McDonald. That is very true, because I heard
    from some of my election officials that there was a barrage of
    registration affidavits coming in, and they really didn't have
    the staff to process this in a timely fashion. So those are
    some of the other issues.
        A couple of more questions I have. What is EAC's position
    on developing voluntary voting system standards that cover
    voter-verified paper trails?
        Mr. Soaries. Just before answering that question, let me
    also note that Hawaii had only about 300 or more provisional
    votes cast, and so in addition to those factors, it should be
    analyzed as to why they had so few. I plan to volunteer to my
    colleagues to go to Hawaii and look into that personally.
        Ms. Millender-McDonald. I will join you there as well.
        Mr. Soaries. My colleagues can go to Alaska.
        The voter-verified paper trail and voter-verified audit
    trail issue is one that has been hotly discussed and has become
    one of the leading issues in voting for the future. On the
    front end it is a security concern. Those who are concerned
    about securing the ballot so that the voter knows that the
    person for whom they voted is the person for whom the vote was
    actually cast is critical. And then the issue of auditability.
    How do we audit an election where there is not a piece of paper
    available after the election is over for recount purposes and
    other?
        What EAC recognizes is that it is not the intent of HAVA,
    nor is it the responsibility of the Federal Government, to
    dictate to States what kind of equipment to purchase. Those
    States that are using direct recording electronic devices, the
    touch screen voting machines, have the right to use those
    machines. It is our responsibility through our standards-
    setting process to ensure that whatever equipment is used
    coheres with standards of usability, of performance and design.
        Having said that, I went to Nevada to observe the first
    election where the DRE with voter-verified paper trail
    technology was being used. I brought back to the Commission my
    observation that it is still our responsibility to ensure that
    standards are in place so that those States that are
    increasingly mandating the use of that kind of technology do so
    with the guidance of guidelines that are established at the
    Federal level.
        And so in summary, it is not our responsibility to prefer
    any particular type of technology. However, it is our mandate
    to put in place standards that govern their use so that when
    people use them, they will know that the font size is correct,
    that the paper is the right kind of paper, that the sequencing
    of the names is such that you can protect voter
    confidentiality.
        There are a number of issues that are appropriately
    addressed by standards. My understanding of my colleagues is
    that we are not prepared to mandate any particular type of
    equipment, but we are working hard on our standards process.
        Ms. Millender-McDonald. So your standards will pretty much
    be rather generic to fit all types of equipment? Is that it?
        Mr. Soaries. We have charged the Technical Guidelines
    Development Committee to bring us a recommendation inclusive of
    standards for that particular type of equipment to ensure that
    any State or jurisdiction that wants to use it can use it with
    the assistance of the guidelines that we offer.
        Ms. Millender-McDonald. I have got you.
        The last question I want to raise is one that the chairman
    brought up, this resolution that was passed by the National
    Association of Secretaries of State. In a memo that I read,
    they were asking that the duties that were assigned to you be
    perhaps transmitted to the National Institute of Standards and
    Technology. Yet in a very cursory view of that group, it
    doesn't seem like it is a compatible one, but can you tell me,
    what are the duties with this technology agency as opposed to
    what you are doing and if there is any compatibility or lack of
    compatibility?
        Ms. Hillman. The National Institute of Standards and
    Technology, which is a part of the U.S. Department of Commerce,
    is working with us specifically on the research and study and
    development of standards for voting systems, for the equipment,
    the hardware and the software systems. That is specified in
    HAVA.
        One would surmise from the resolution that what the
    secretaries of state are saying, they recognize that process
    should continue, but that would be the only part of the Help
    America Vote Act that NIST would be able to follow through on,
    and that would be the system standards. The issue of auditing,
    receiving State reports, sending out requirements payments,
    providing guidance on the very long list of issues that
    Congress has put under Title III of the act and those other
    kinds of issues are not something that are within the expertise
    of NIST.
        Mr. DeGregorio. If I may add, Madam Ranking Member, I think
    one of the beauties of HAVA in setting up the EAC was that we
    are a bipartisan commission, and that the TGDC and NIST does
    its work for the EAC. And that to make sure that whatever
    guidelines we come up with are done on a bipartisan manner to
    serve the whole country works well, I think, for this country
    to make sure that it is not just one agency of the Federal
    Government doing this, but that it is vetted through an agency
    such as ours to make sure that people have trust and confidence
    in the guidelines that they are producing.
        Ms. Millender-McDonald. I think that is absolutely key.
        Ms. Hillman. If I could also note that I believe the
    resolution referred to the work could also be completed by the
    State and local election officials who make up the Standards
    Board. The Election Assistance Commission has a 110-member
    Standards Board, two people from each State. There is balance
    so that you have got 55 State representatives, 55 local
    representatives, and they each must be from a different party
    so that there is some balance there.
        But this is a board. It is a Federal advisory board. It is
    governed under the Federal Advisory Committee Act. It has a
    nine-person Executive Committee that it just elected last week,
    but the staffing of that Standards Board is provided by the
    Election Assistance Commission.
        Ms. Millender-McDonald. So saying all of that, it certainly
    seems to me that it was a little premature in that resolution
    being put out, given that you have yet a lot of work to be done
    that has been mandated by HAVA for you to do, and you have done
    an extraordinary job. So I thank you so much, and I thank the
    chairman for bringing that resolution to our attention because
    it certainly at this point, in my view, is a little premature.
    Thank you, Mr. Chairman.
        The Chairman. Gentleman from Michigan.
        Mr. Ehlers. Thank you, Mr. Chairman.
        I am very disappointed in the resolution of the secretaries
    of state. But during the writing of the bill, we had similar
    problems in dealing with the directors of elections, the
    secretaries of state and a lot of other people and local
    officials; basically wanted the Federal Government to keep
    their hands off. And we worked diligently to try and work with
    them and establish a system that was fair to everyone
    concerned. I would hope that you would get together with the
    secretaries of state soon in trying to resolve the problem
    because we need everyone working together.
        Since I was involved in writing the technical standards, I
    am very interested in how your relationship with NIST has
    worked and whether they have been helpful to you in the
    process, and has this been a fruitful partnership?
        Ms. Hillman. It has been a fruitful partnership, although
    admittedly, the Election Assistance Commission has had to do
    due diligence, if you will, to help NIST see the way that the
    work could be done within the 9 months prescribed by HAVA. I
    think NIST felt a bit overwhelmed by the size of the task. And
    particularly that portion of the time that NIST has been
    working on this, we had funding uncertainties.
        We started the technical guidelines development committee
    in July of 2004 on a gamble that the 2005 budget would provide
    the funding we needed. And, in fact, Congress did recognize the
    critical need for this funding; however, because we were under
    a continuing resolution, we didn't know for certain what the
    funding would be until December.
        NIST worked with us. And the committee did have meetings.
    By January, they were ready to adopt resolutions. We, the
    Election Assistance Commission, have been very clear and, in
    fact, very firm with NIST and the Technical Guidelines
    Development Committee that the work must be done within the 9
    months.
        Mr. Ehlers. I appreciate that. And frankly, NIST got caught
    in a bind not of their own making. It was a travesty that the
    Congress did not provide the funding for them and, in fact, cut
    their funding in other areas and made it very, very difficult.
    I appreciate that they were able to do what they were able to
    do.
        Ms. Hillman. We are also appreciative that they did undergo
    a staff change. Dr. Bement did leave in the middle of this as
    did one of their other senior staff. So they did have some
    staff changes.
        Mr. Ehlers. I would like to comment on the paper trail
    issue. Representative Holt could not stay, but he is submitting
    a bill that he would like me to cosponsor requiring development
    of a paper trail. And there are many questions involved in
    this, and I don't know what aspects you are looking at. A paper
    trail is not a magic answer. I could very easily program a
    computer to record false information and yet print out
    precisely what the voter put in and print that out for the
    voter's satisfaction, but yet record a different result in the
    memory of the computer, and as long as there is no audit later
    on, that would stand.
        The real issue--there is plenty of opportunity for fraud in
    voting and also opportunity for electronic fraud, and I think
    everybody should be aware of that and the efforts should be
    concentrated on preventing the fraud in the first place and not
    just a paper trail. I think a paper trail is nice for audit
    purposes, but I am a little concerned that we might mislead
    people into thinking that, well, if there is a paper trail,
    then automatically everything is okay. That alone doesn't
    guarantee it. So that is one reason I insisted on very strong
    technical standards to ensure the verifiability of the
    electronic record, the accuracy of the electronic record and
    the reproducibility of the electronic record in addition to
    whatever paper trail we might develop.
        It is unfortunate that there are high school students who
    are more capable of hacking the computer than the poll workers
    generally, and I am not saying this is likely to happen, but
    this is an opportunity for fraud to occur. And I just wanted to
    point that out. I don't know if any of you wish to react to
    that comment.
        Mr. Soaries. I will, Congressman. I think you are exactly
    right. When I was in Nevada, it was clear that many of the
    people who voted with the paper trail never even looked at the
    paper, which further opens the door of opportunity for
    electronic fraud. We do the math and calculate the likelihood
    of people to look at the paper.
        However, in Nevada, we found that the confidence level of
    voters, because of their perception of security, increased
    because there was paper. We think it is our job to do the
    proper research to really vet all of the issues, to inform the
    States and the policymakers, and, again, to set those
    standards, including technical standards, that will ensure that
    there are both standards for paper trail technology, but more
    importantly, standards for security in the electronic devices.
        Mr. Ehlers. Absolutely. Thank you very much. I am sorry. I
    am late for another committee meeting, but I thank you very
    much for being here, and I appreciate your work. You have had a
    tough couple of years, and I think this last election went off
    remarkably well. And there are always going to be some
    glitches, but I appreciate your efforts and hope that you will
    continue to do the same work.
        Mr. Soaries. You urged to--we started--as the Chair
    mentioned, on Monday we met with NASS and spent most of our
    time listening to their concerns. But as Yogi Berra said, he
    gets along with his wife--we get along together even when we
    are not together. While NASS and EAC are not together on this
    particular issue, we will work together as the Chair has
    committed and work through this and continue the process of
    election reform.
        Mr. Ehlers. I think it is safe to say on the part of the
    Congress that the Election Assistance Commission is not going
    away, so everyone has to work together.
        The Chairman. The gentleman from Pennsylvania.
        Mr. Brady. Just for my own knowledge, how many voting
    machines are there, do you know, in the United States of
    America? I mean, I am in the First District in Pennsylvania
    that encompasses Philadelphia and a couple of suburbs. I have
    four different voting machines. So you have to have a nightmare
    ahead of you with provisional ballots, designing them, allowing
    the State to do it. It is really tough. And I recognize that
    you do a heck of a job under some tough circumstances.
        Mr. DeGregorio. There are probably a couple of dozen
    individual type of voting devices out there throughout the
    country that vendors sell to jurisdictions throughout the
    country. And there is nearly half a million of individual
    devices that are used by voters throughout the country on
    election day in a Presidential election. So it is quite
    complicated.
        The Chairman. Gentleman from California Mr. Doolittle.
        Mr. Doolittle. Thank you, Mr. Chairman, and I appreciated
    the opportunity to meet yesterday with a couple of our
    Commissioners, and appreciate the insight that you gave me. At
    that time I expressed a preference for a paper trail, but I
    would like to revise that. What I really want is the ability to
    audit what went on, and maybe there are some ways other than a
    paper trail to do that. Would any of you care to comment on
    alternatives to a paper trail in terms of how you can track
    what actually happened?
        Mr. Martinez. I will make a quick comment. And the Vice
    Chairs also have been tracking this issue very closely.
    Certainly, there are. There are jurisdictions in this country
    that have had experience not just in one or two election
    cycles, but for a very long time in using electronic voting
    systems; the newer versions, touch screens. But there have been
    jurisdictions using them. In some of those jurisdictions, a
    chief election official, secretary of state, will step forward
    and say there is no real outcry from the voters of this State
    to move toward a paper verification, if you will. In other
    words, the management processes, the protocols that we have in
    place to ensure the integrity and the accuracy of our voting
    systems satisfies the voters in this State, generally speaking,
    that our systems are accurate.
        There are ways to achieve the accuracy and the integrity we
    all demand of our voting systems. You have jurisdictions that
    have experience, and then you have others that perhaps are
    newer to some of the technology that, for various reasons,
    including what our former Chair just articulated, and that is
    simply for the purpose that they believe in their State the
    voters demand an added layer of security, an added layer of
    verification.
        And some of those States like California, I think the
    legislature has taken a step to mandate a paper verification by
    1/1/06. And you have some secretaries of state who have done it
    on their own through regulatory authority and have taken that
    step as well, so they see paper as that added security.
        There are different ways, I think, to achieve the same
    result. I would join my former Chair and colleague in saying we
    don't want to get bogged down at the EAC right now with the
    question of whether we should mandate this or that. What we
    want to do is deal with the reality of the situation. The
    reality of the situation is we have NIST that is taking a look
    at current voting system standards, identifying gaps, one of
    which I think we all agree is security, and let us deal with
    the reality which is, in some States, mandated already. The
    question of whether you are going to have paper or not has
    already been settled by a legislature, by a chief election
    official. Let us give the assistance that those States need to
    ensure that those components have integrity and accuracy. And
    those are the types of standards you are trying to achieve at
    some point later this year.
        Ms. Hillman. Congressman, you did raise a very important
    point about the auditability of the systems, the touch screen
    and DRE systems, and that is a matter that our Technical
    Guidelines Committee and NIST are looking into for us.
        Mr. Doolittle. Thank you. As you know, we have had some
    severe problems in California with the secretary of state. He
    has now resigned, and I understand that you are auditing the
    use of the funds out there, which I very much appreciate and
    think an audit needs to go forward despite the resignation. I
    think it will shed some light on not only what has happened in
    California, but potential ways the system is perhaps being
    abused. It may exist elsewhere. I wonder if you could comment
    on how this audit will be conducted.
        Ms. Hillman. This year will be the first year that the
    Election Assistance Commission will undertake one of our
    significant responsibilities, which is receiving reports from
    the States. And because of the lateness of our cycle, we will
    be receiving reports on expenditures under both Title 1 and
    Title 2 of the Help America Vote Act.
        So we have been providing guidance about the kinds of
    information that needs to be reported to us. Upon reviewing
    those reports and looking at the single-State audits that will
    be available from the various States, we will make a
    determination as to whether we think there is anything in the
    report that warrants our further consideration of a special
    audit.
        At our meeting in January, we did adopt policy and
    procedures for special audits, and then we did vote to audit
    California based on information that we received through the
    California State auditor's office and that report. Our next
    step, we have to obtain the services of an auditing entity. We
    are considering two options. One is another Federal agency with
    experience auditing Federal grants, payments, requirements, or
    an outside firm. And as soon as we have that in place, we will
    begin the audit, and we will be looking at an audit of both
    financial and program compliance.
        We are informed by the California State auditor's report,
    and we will be informed by the single-State--I believe I am
    using the correct reference--single-State audit that will also
    come out. What we want to do is take a look at a much bigger
    percentage of the expenditures than did the California State
    audit report. So I am expecting that we will have the audit
    completed sometime late spring or early summer.
        Mr. Doolittle. Thank you.
        The Chairman. Gentlelady from California.
        Ms. Lofgren. As a temporary member, I believe I am not able
    to participate.
        The Chairman. If you would like to.
        Ms. Lofgren. Listening carefully to the paper trail
    argument and the level of confidence, I will just advance an
    opinion that part of what our mission here to do is to assure
    the integrity of the vote, but also to build confidence on the
    part of voters. And the ability to conduct a recount, I think,
    is part of that confidence building. Whether or not a recount
    is ever conducted, that it could be, I think, builds public
    confidence, and for that measure alone ought to be included.
        Is NIST addressing the issue of the multiplicity of
    technologies and the possibility of a paper trail and
    conforming to that multiplicity of technologies?
        Mr. DeGregorio. Yes, they are. We gave that charge to the
    committee when it was first instituted in July of last year,
    and just recently the committee passed resolutions to deal with
    this issue and to make sure that if a jurisdiction or a State
    mandated a paper trail, that there would be requirements and
    guidelines for the use of that paper trail, which would include
    the auditability and any kind of recount that the system may
    have to go through after an election.
        Ms. Lofgren. As a brand new member, I will limit my
    question to that, Mr. Chairman, and as I continue to be a
    member, I will have more.
        Mr. Soaries. Congresswoman, there is a very active movement
    of technologists and voting vendors who are pursuing a track of
    voter verifiability through an audit trail that does not
    include paper, and I think the exploration of that emerging
    technology will offer States options who are seeking to do
    precisely what you described, and that is to have maximum
    auditability and at the same time an option to using paper.
        Ms. Lofgren. Mr. Chairman, at some point, maybe the
    committee has already done this, but I think it would be very
    informative if we could arrange at some time to have some of
    these machines displayed for us along with some geeky types who
    hack into them so we might have an understanding. It is one
    thing to sit here and get a report, but I think it would be
    very informative if at some point we could arrange that. Just a
    suggestion.
        The Chairman. We can do that. When we were talking about
    the voting machines, we had a forum here a couple of years ago
    and had a lot of different machines. I think we had it for 2
    days, and House staff came.
        Gentlelady from Michigan.
        Mrs. Miller. Thank you, Mr. Chairman.
        I would like to revisit, I think, what was your original
    question, and I also serve on the Armed Services Committee, so
    I have a complete consternation about our military members
    whether or not they are able to vote in a timely fashion. And I
    believe that the Department of Defense has let a contract to a
    vendor to develop a system whereby the military would be able
    to download their ballots, although I am not sure with
    technology being where it is today. It could be years away,
    obviously, for a complete ballot to be downloaded. I was
    wondering as we were talking about standards if you are aware
    of this contract and to what degree the EAC was involved, if at
    all, with developing these standards. And in consultation with
    the DOD for such a contract, it would seem there would be an
    appropriate agenda for your responsibilities.
        Mr. DeGregorio. Thank you, Congresswoman.
        We are certainly aware of the agency that was given this
    contract, Omega Technologies. However, we were not brought into
    the picture, nor were we asked our opinion on the process that
    they used to select the company. And there was some controversy
    involved, because it was felt that it was let under the
    Department of Defense, and perhaps there were some partisan
    contributions given by this company in the process that tainted
    any work that they did.
        I certainly suggested to the Pentagon that anything that
    they do in this area be bipartisan, and I suggested to them
    that perhaps they contract in the future with some local
    election entity in the Washington, D.C., area; there are plenty
    of them around here that are bipartisan, so partisanship
    wouldn't come into play when we are dealing with votes that may
    come in that people may see.
        So we certainly hope that in the future we have the
    opportunity to work with the Federal Voting Assistance Program
    and the Pentagon to improve this process to keep the
    controversy to a minimum and to keep voter participation by our
    military men and women and voters overseas to a maximum.
        Mrs. Miller. I appreciate that. That was very candid to say
    so, and I would be interested to follow up myself on the way it
    is going, because it does have great potential, obviously, to
    be able to use that kind of technology. I think people on the
    submarines, people have an opportunity to download.
        Shifting gears, but continuing to talk about the standards,
    and I am, as we are all, about this resolution that NIST passed
    this last week. And the next panel, I see some of my former
    friends, secretaries of state out here, will want to address
    it. But it is my understanding that the resolution that was
    passed was overwhelming. I think it was 22 out of 24
    secretaries that were in attendance. It was a large amount. But
    perhaps some of the reason, part of the reason that they might
    have some consternation and passed a resolution is because they
    don't have the standards yet, for instance, on the statewide
    election voter registration list. And I know it was talked
    about in your testimony that you are looking perhaps at summer.
    Someone said summer. And I know the chairwoman also mentioned
    the term ``interactive.'' I have a couple of questions.
        First of all, I don't know how we define interactive. I
    would like to know your best definition of what that means.
    Interactivity obviously is going to be a critical element of
    that. And as you are developing your standards, what is your
    criteria status thus far; if there is anything we should know
    in regards to that. And it would seem--are you looking at some
    of the existing States' systems?
        And not to keep going back to Michigan, but we all have our
    personal perspectives, so I have to mention in Michigan we
    developed the qualified voter file many years ago before HAVA
    came along. And in Michigan--I don't know that we are unique in
    the Nation, but we have a very decentralized system. In most
    States where you have the county clerk maintaining the voter
    registration rolls, in Michigan it is every clerk, every
    village clerk, township clerk, city clerk, to the extent that
    we had over 1,700 municipalities maintaining their respective
    voter registration files and then to meld them all into a
    statewide computerized voter registration list was sporting;
    very challenging, but it worked out great.
        And our system is interactive in that it is Web-based.
    There also is--and I think there are a number of States that do
    this as well, that the secretaries not only have the elections,
    but they have the DMVs. So we were able to construct that
    system built off of the driver file and the State
    identification file. And that particular system I will note was
    noted in the Ford-Carter Presidential Commission as a national
    model. I am sure there are other national models.
        And I only say that by way of as you are developing your
    criteria for your standards, what is happening with that, and
    are you looking at these other systems? Because I am sure the
    secretaries have great consternation about developing a system
    now. They spend a lot of money on some system, and then in the
    summer or whenever come to find out it is not a system that is
    meeting your standards. So I ask you that.
        Ms. Hillman. Thank you for the question, Congresswoman. I
    think there were three or four dynamic components to your
    question. One is with respect to the statewide voter
    registration databases, we don't develop standards on that, but
    rather we would issue guidance. And HAVA gives us some
    requirements as to how we do the guidance, which would include
    the development of the draft guidance, hearings, publication in
    the Federal Register for a period of time for comment. So it is
    guidance on that part of the Title 3 requirements that we would
    issue.
        We did at our December 2004 meeting have presentations from
    four States about their experiences with their statewide voter
    registration databases. We note that, I believe, it is 17
    States have their statewide voter registration databases
    operational. Some States have begun that process. And the
    purpose for holding that first hearing, if you will, it wasn't
    really a hearing, but we did a panel presentation, was to
    gather early information to get a sense as to the amount of
    work that we would have to undertake to come up with the
    guidance. And some States--we had Michigan, Kentucky, South
    Carolina and North Carolina, and Kentucky and Michigan both
    have had longtime experience with this. At least one State said
    they had to go back to the drawing board--I think it was
    Kentucky--and start over again. They couldn't do that again
    now, but that as they were working through their system, they
    realized that some parts of it weren't working.
        The guidance that we will provide is voluntary, but we draw
    from the real experiences that elections administrators have
    had with the system. We know there are discussions between
    State election officials and locals about the--I won't say
    ownership of the databases, but the locals have their database
    in the States.
        With respect to interactive and real-time, that is one of
    the big challenges that we will have to give definition to that
    in a way that provides good guidance, but doesn't at all impede
    on any State's ability to set up the type of system that it can
    afford and manage over the long haul that will service its
    locals, that the locals will be able to use. For some
    jurisdictions this is going to be a major undertaking. It is
    going to require database, no hardware, and so on and so forth.
    Some States shy away from purchasing over-the-counter software,
    if you will, and want their own setup. Most States don't have
    what Michigan has in place, and that is the Department of Motor
    Vehicles and the elections responsibilities in one place. It
    has to be coordinated. Some States are having to work with
    Social Security Administration, you know, to figure out how the
    files will be able to talk to each other.
        We recognize that is a huge undertaking, and we appreciate
    the States wanting to receive the guidance from us. As you
    probably have picked up in earlier testimony, unfortunately, we
    started way behind the eight ball with respect to not only our
    being appointed late, but not having a budget in 2004 that
    permitted us to do any research last year. And we do not have
    the in-house staff capacity to do all the research. We will
    have to contract some of this out, because in the fiscal year
    appropriation, Congress did cap us at having 22 full-time
    staff. So we are having to put together the capacity to do the
    research.
        So under ideal conditions, this guidance would have gone
    out last year. We do believe we are going to be able to provide
    guidance in sufficient enough time that even for a State that
    starts the initial planning--in my remarks earlier, I talked
    about, you know, changes and improvements take thoughtful
    planning and time. So as the thought and planning process is
    going on, our guidance will be in time for any State to be able
    to revise, correct and do whatever before final implementation
    and still have several months to be able to do a trial run, if
    you will, before January 1, 2006.
        Mr. DeGregorio. If I may add, Congresswoman, because I know
    that under your leadership as secretary of state of Michigan,
    you worked closely with the 1,500 city clerks. I had the
    opportunity before the election to go to Troy, Michigan, and
    visit with Tony Bartholomew, the city clerk there, to see how
    that system worked, because I know that when HAVA was drafted,
    the State of Michigan system was an element and a very
    important element as they drafted the statute.
        As you recognized, as the former secretary of state, there
    is always a tension between the local election officials and
    the State, and in some States the tension is quite high on this
    issue, and we recognize that. And the Commission wants to try
    to help the States and locals to get together to partner and
    make this work as Congress intended.
        In the State of Illinois, the State board of elections and
    the election officials are miles apart. The State board of
    elections want all the registrations to come to Springfield,
    and the 86 county clerks and elections said no. And we want to
    provide answers for them, some guidance. They have to work it
    out themselves. We are not going to mandate anything that they
    do, we are going to try to provide some interpretation that
    helps them come together to make this work.
        Mrs. Miller. I know I am out of time here, but let me
    suggest then as you are developing guidelines, even though you
    can't mandate it, a critical element--and this is not inherent
    to Michigan, it is anywhere--is that the same address be used
    for your voter registration as it is for your driver's license.
    We passed a piece of legislation in Michigan to that effect,
    and I know some other States have.
        When we fired up the qualified voter file in Michigan and
    melded all of the lists together, we eliminated almost 10
    percent of our list. We had about 7 million, and we eliminated
    about 700,000 names. And when we passed that legislation, we
    really fine-tuned the system, and there should be no reason
    why--I mean, whatever address you want to use, okay, but you
    could only have one address in the system. That is something I
    would suggest strongly that you put in your guidelines;
    otherwise you are never going to have a clean list.
        Ms. Hillman. Thank you for that comment. And we do
    recognize that once these databases are in place, there will
    be, as you said, a 10 percent cleanup of the rolls, if you
    will. There will be significant cleanup of the rolls, and then
    will come into question the purging process. So the
    transparency of the State's activities to develop this
    database, keeping the information flowing to the groups and
    individuals that work on voter registration so that they
    understand if they are told there was a 15 percent purge once
    the database was done, then we will understand that, and we
    won't see the kind of reaction to this as we saw with
    provisional voting.
        We didn't know a year ago that provisional voting was going
    to be the subject it was, but we can anticipate now that when
    any voter group hears that a significant portion of the voting
    registration list of the State was purged, they are going to
    want to know who, what, when, where, why, how. Part of our
    guidance will be encouraging States' transparency of process,
    frequent communication with the groups, and ongoing
    information, and a visible written plan that explains step by
    step what they are doing and why they are doing it.
        The Chairman. I want to thank the panel. We are talking
    about secretaries of state coming out here, and that has been
    bandied about. But my Secretary of State Tim Blackwell was the
    first person who picked up the phone and called me with HAVA,
    and we appreciated that. And Secretary of State Thornburgh is
    here. He was the first one on the spot, too. Secretary of State
    Priest.
        So I didn't want to make a bashing statement. I will say
    probably also to defend NASS in the sense from their
    perspective, and it doesn't have as much to do with you all,
    somebody doesn't like something, there is a bill to amend HAVA
    and another bill to amend HAVA. And there were so many of them
    before the election that I think probably in the minds of
    secretary of states, you know, how far is this thing going to
    go that is kind of overdone, even though there are good issues
    and important issues. But there was such a proliferation of
    bills, and that is probably a signal from them to us also.
        With that, I want to thank you for your great work and your
    time today.
        The Chairman. And the next panel, speaking of secretaries
    of state, are here, and appreciate their patience and will move
    right on to introducing the panel.
        I want to thank the secretaries of state for being here and
    for your patience. We have Rebecca Vigil-Giron, the New Mexico
    secretary of state and also the current president of the
    National Association of Secretaries of State; Ron Thornburgh,
    who is no stranger to the committee, and who is the Kansas
    secretary of state; Chet Culver, the Iowa Secretary of State;
    and Todd Rokita, the Indiana Secretary of State. And appreciate
    your time. And we will start with our Secretary of State from
    New Mexico.

      STATEMENTS OF REBECCA VIGIL-GIRON, NEW MEXICO SECRETARY OF
    STATE; RON THORNBURGH, KANSAS SECRETARY OF STATE; TODD ROKITA,
    INDIANA SECRETARY OF STATE; AND CHET CULVER, IOWA SECRETARY OF
                                 STATE

                    STATEMENT OF REBECCA VIGIL-GIRON

        Ms. Vigil-Giron. Good morning, Chairman Ney, Congresswoman
    Millender-McDonald and distinguished members of the committee.
    Thank you for your invitation to address the committee today,
    and I bring special greetings from my Governor, Governor Bill
    Richardson, and special greetings to Congresswoman Millender-
    McDonald from him.
        My name is Rebecca Vigil-Giron, and I am the secretary of
    state for New Mexico and the president of the National
    Association of Secretaries of State. During the long run-up to
    election day 2004, we heard some critics say that it would be
    an election administration nightmare. Now looking back, the
    general consensus seems to be that the elections ran smoothly
    overall.
        My peers and I knew that we were staking our reputations on
    the success of that day, and we worked hard to comply with the
    mandates of the Help America Vote Act. In fact, we successfully
    administered free and fair elections for the most part, even
    though HAVA has not been fully funded and the Federal
    Commission it created was 9 months late taking office.
        Every State met HAVA's 2004 deadlines. Several States even
    completed reforms that could have been postponed until 2006. At
    least nine States were ready with statewide voter registration
    databases, and Americans with disabilities voted independently
    for the first time in many States.
        My colleague, Secretary Ron Thornburgh of Kansas, will
    speak more about the national picture, but I can tell you that
    in New Mexico, Federal funding for election reform helped us
    improve our electoral process. New Mexico prepared for the
    election with an unprecedented nonpartisan voter education
    program that was one of the most successful in the country. We
    produced television and radio spots in English, Spanish and
    Navajo that were aired statewide. As a direct result of that
    campaign, more than 1 million of my State's 1.9 million
    residents are registered to vote. We registered 152,000 new
    voters between January and October of 2004, an increase of more
    than 15 percent in the total number of registered voters. Voter
    turnout was 26 percent higher than in the 2000 Presidential
    election. More than 160,000 new voters cast ballots in November
    2004, thanks largely to my voter education campaign.
        For the first time ever, New Mexico offered provisional
    ballots. More than 18,000 New Mexicans voted provisionally. And
    even though not all of these provisional votes were certified,
    not a single person was disenfranchised. I do believe, though,
    that uniform statewide standards for the certification of
    provisional votes will need further refinement in New Mexico
    and in all States.
        New Mexico is the only State in the Union with a State
    constitution that requires us to provide all election materials
    in both English and Spanish statewide to all voters. This year
    we also provided written and oral election information in the
    languages of the Navajo Nation, the Mescalero and Apache
    Nations and 19 Pueblo Nations. New Mexico leads the country in
    this area now, but 37 States are now required to determine how
    to effectively reach language minority populations.
        We are also just months away from completing the
    installation of our new statewide voter registration system.
    New Mexico will be one of the first States in the country to
    have a central system in place that is in full compliance with
    HAVA. We expect that our system will be a turning point in
    election management. The system will significantly reduce
    duplicate registrations. It will help ensure that only
    legitimate voters are on our voter rolls by using our new
    statewide deceased and felon files. The system will provide a
    backup data center for disaster recovery, something that New
    Mexico counties could not have afforded on their own. My office
    will always have an accurate, up-to-date voter file and will no
    longer have to depend on monthly updates subject to human
    error.
        Advanced technologies like bar codes and document scanning
    will make public employees more efficient and save taxpayer
    dollars. The system is a significant advancement in election
    technology, and it was funded with HAVA dollars. It is a
    tribute to the foresight and vision of this committee.
        New Mexico's progress points to the fact that HAVA is
    working. I urge the members of this committee to continue to
    support HAVA in its original form and to fully fund the law. I
    have full confidence that with your support, we will finish the
    job of protecting our democracy for future generations, and I
    want to thank you, and may God bless you in the new year.
        [The statement of Ms. Vigil-Giron follows:]

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        The Chairman. Secretary Thornburgh.

                      STATEMENT OF RON THORNBURGH

        Mr. Thornburgh. Thank you, Mr. Chairman. It is a pleasure
    to be back before the committee. I appreciate the opportunity
    to spend some time with you this morning. Obviously, a lot of
    work has been done. My colleagues are going to spend time
    talking specifically about certain elements within the State. I
    hope to present a bigger national picture and paint that
    picture a little more for you.
        The November 2, 2004, election operated, in my opinion,
    just the way Congress intended in that it was--there were
    certainly scattered stories of election glitches, of equipment
    glitches. There were a few stories of poll worker errors. But
    there were no widespread claims of disenfranchisement as we saw
    in the previous Presidential election.
        Our system certainly is not perfect. There were too many
    long lines and too many provisional ballots cast, not as a
    reflection that provisional ballots are a bad thing, but we can
    do a better job in keeping the records clean so there is not a
    need for provisional ballots. However overall, last November's
    election was successful, and elections are better today than
    they were just a few years ago because of the great work of
    this committee.
        You designed HAVA several years ago with very clear goals:
    historic reform, consistency nationwide, appropriate funding,
    broad guidelines, and you left the specifics to the States. You
    created a good system that balanced Federal and State interest.
    And after HAVA only being 3 years old, the reforms are working.
        I would ask that Congress continue to stand by the system
    it created. The investment and the outcomes can only be
    realized with continued full funding with the Help America Vote
    Act. We, the States, have made significant progress. In this
    last year, every nonexempt State provided provisional voting
    for the first time in America. Nine States, and in some counts
    it is as much as 15 States, central voter registration was
    available prior to the extended deadline of the Federal
    guidelines. Thanks to HAVA funds, changes were made in a number
    of States, the way in which we educated voters, the way we
    reach out to voters, provide information about polling place
    availability. And in Kansas I am proud to say for the first
    time in our history as a State, every single polling place was
    ADA-accessible. It is an extraordinary challenge and effort by
    HAVA in order to be able to do that.
        Despite significant progress in what we believe to be a
    very short time, we are concerned by what we see as a movement
    to federalize elections. Let me just state very clearly, I
    believe, and this is my personal opinion, the biggest fear
    among the States is a continued expansion of the Federal role
    through regulatory oversight and micromanagement.
        I would assume we will have a chance to discuss the NASS
    resolution at some point, so I won't go into great details
    right now.
        President Reagan said in his 1983 State of the Union
    address that one of his goals was to restore State and local
    government to their roles as dynamic laboratories of change in
    a creative society. We certainly owe a great debt to our
    Federal partners, and we have all benefited from bold State
    experimentation: In the State of Oregon, where we have mail
    voting and 85 percent voter turnout, where nearly every vote is
    cast through the mail; in six States with election day
    registration, we had 74 percent voter turnout. And if we
    standardize everything, we lose the ability to create those
    kinds of systems that allow others to learn from that process.
        There has been great innovation and leadership. The
    ingenuity and change cost dollars. Congress has not yet
    provided full funding to provide for the long-term management
    and updates that will certainly be a part of where we go.
    Congress has clearly defined your desired outcomes. The States
    clearly must be allowed to do what we do best, and that is
    figure out what works best for our own cities. Congressman Ney,
    I think you have heard me say it before, what works for New
    York City doesn't work for Cawker City, Kansas, home of the
    world's largest ball of twine. We have to understand the
    distinctions. Congress must also clearly stand up to its
    obligation and fully fund the requirements of HAVA.
        Thank you for the opportunity to be here, and look forward
    to answering your questions.
        The Chairman. Thank you very much.
        [The statement of Mr. Thornburgh follows:]

        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Secretary of State Rokita.

                        STATEMENT OF TODD ROKITA

        Mr. Rokita. Thank you, Mr. Chairman and members of the
    committee. It is a pleasure to be invited to speak with you
    here today about the Help America Vote Act. In Indiana, we
    still say HAVA, not HAVA. So it is a little bit different for
    us.
        To speak about the Federal legislation, to me a
    constitutional point, that really was legislation to help not a
    national election, but the elections in 50 sovereign States.
    And some of those elections dealt with elections for Federal
    office where those offices are held in a stateless city. I want
    to thank you, Chairman Ney. If I understood you right from your
    comments, you still support full funding of HAVA, and you will
    get that for us, and that is very much appreciated on behalf of
    the people of Indiana and the rest of the secretaries that are
    here.
        When I first was elected secretary of state January 1,
    2003, I sent a letter out to all our 92 county clerks, and if
    you ever want to have a discussion in federalism, I invite you
    to have a hearing in Indiana, and I will bring my 92 county
    clerks and talk about government closest to the people. It is
    something they certainly believe in. But we have been working
    on this since day one, and in order to be successful with the
    Help America Vote Act, you have had to start working from day
    one and lay the foundation and do the brick building to bring
    us where we are today in Indiana. And we are at the verge of
    success with implementing Congress's intent.
        You have to bring everyone to the table. In Indiana, we
    went beyond bipartisanship. We went to tripartisanship. Where
    it was left for us to develop a plan, we brought 28 members to
    the table, all the political parties, the media, the military,
    the advocacy groups and our county clerks. And my office, my
    job has changed dramatically from my predecessor's. I can tell
    you that I spend at least 70 percent of my job as secretary of
    state on this, and that has never been done before. And I know
    that some people believe the only other thing that the
    secretary of state has to do is watch the State seal, but there
    are a lot of things going on in our statehouse.
        When Hoosiers went to the polls in 2000, over 50 percent of
    them voted on what has become the much maligned and antiquated
    equipment. As I have the honor to speak with you today, that
    number has gone down to 10 percent, and we are well on our way
    to zero percent. Everyone is on better equipment by January
    2006.
        We are on track with our statewide voter file, and that,
    again, you have got to understand the importance of foundation
    laying to get something like the statewide voter file done when
    you haven't had one in your State. In Indiana, we had 92
    separate files.
        We also have an overseas voting guide, which has been
    labeled a best practice by the Federal Voting Assistance
    Program, and our education and outreach continues to grow at
    levels that Indiana has never experienced before.
        There was some talk about provisional balloting. In
    Indiana, we have a common-sense approach to provisional
    balloting, and that is you have to be in your precinct in order
    for your ballot to be counted, and there are some very good
    public policy reasons to do that. One of them is that if you
    allow what I call poll crashing, to go anywhere you want to
    vote, you have some very large administrative headaches. It
    would be impossible to know how many provisional ballots to
    even print if that was going to be the case. You would also
    send the wrong message. You would say it is more important to
    vote for President of the United States than for mayor or city
    council. And I don't have to tell this committee that a lot of
    the decisions that affect our lives are made by those local
    races.
        And then consider the public policy of a tie vote in a
    race. In 2003, in the Frankton-Lapel School Corporation race,
    there was a tie vote. If people weren't made to vote at the
    precinct, how would that person feel if they didn't have a
    chance to cast that tie vote? That tie was actually decided by
    a court, which brings into focus a larger issue.
        At some point we have to take these elections back for
    ourselves. The Constitution, if you look through it in that
    very objective, clear lens that Thomas Jefferson prescribed for
    us, the people are to elect our leaders, not the courts. And I
    would urge this committee as it goes through its deliberations
    to keep that in mind.
        One last point as I finish up with my remarks. We have not
    had a perfect election in this country since 1776. I would
    venture to say we haven't had a perfect election in the history
    of this world. In Indiana, 30,000 people were in some way or
    another responsible for our elections. And I don't pretend to
    know the Bible better than Reverend Soaries, but I know it
    talks about the imperfection of the human, and I do say that
    what elections have to be, as we all feel, I believe, free and
    accurate, with everyone having equal opportunity and access if
    they are eligible voters to the polls. And that is what HAVA
    does, and that is what we are working for best of all at the
    State level. Thank you.
        [The statement of Mr. Rokita follows:]

        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Secretary of State Culver.

                        STATEMENT OF CHET CULVER

        Mr. Culver. Thank you, Chairman Ney, Ranking Member
    Millender-McDonald, Congressman Brady and Congresswoman Miller,
    and distinguished members of the committee, for your invitation
    to be here. My name is Chet Culver, and I am Iowa's secretary
    of state now serving in my second term.
        In February of 2001, I served on a special election reform
    task force created by the national secretaries of state, or
    NASS. Our goal was to provide Congress with information and
    make recommendations in an effort to solve many of the election
    administration problems revealed in the 2000 Presidential
    election. Much of this input was reflected in the legislation
    that ultimately became the Help America Vote Act, or HAVA.
        Having had the opportunity to work on HAVA since its
    inception, I want to express my appreciation to the bill's
    cosponsors, Chairman Ney and Congressman Hoyer, Members of
    Congress who supported the bill, and the congressional staff
    who have provided valuable assistance. This is an excellent
    piece of Federal legislation. I believe, properly implemented,
    HAVA will dramatically improve election administration in the
    United States and help tens of millions of Americans vote.
        Because of HAVA and the financial resources it provides,
    Iowa is positioned to lead the Nation in these critical reform
    measures. We are making real progress. Our goal is not only to
    comply with this Federal law, but to create a model for HAVA
    implementation.
        Today I was asked to report on three aspects of Iowa's HAVA
    implementation: First, our experience with HAVA. Simply put,
    our experience has been an extremely positive one. It has
    brought together Iowans in a bipartisan way, and we have made
    positive changes to the process that lies at the core of our
    democratic values: voting. Since we began implementation, we
    made it a priority to reach out in an inclusive fashion.
    Underpinning our State plan is more than 2 years' worth of
    input gained from 19 public meetings. For this effort, we
    reached out and involved voters, poll workers, elected
    officials, disability advocates, new citizens, diverse ethnic
    groups and many Iowans who have difficulty voting because of
    sight impairments or low reading skills. In addition, we
    recruited volunteers to participate on a dozen HAVA committees,
    subcommittees and user groups.
        Twenty-eight HAVA committee sessions were held in 2003, and
    25 sessions in 2004. Our objective in reaching out in such an
    extensive way was to guarantee that implementation would be
    embraced by all Iowans with the goal of helping them vote. As a
    result, Iowans will now experience HAVA's impact through better
    voting machines, a more efficient statewide voter registration
    system, improved election official and poll worker training,
    and unprecedented voter education efforts.
        The second part of my testimony relates to the impact HAVA
    had on our 2004 election. I am pleased to report that HAVA had
    an extremely beneficial impact on the recent election. HAVA
    helped more Iowans participate in our democratic process than
    ever before. For the first time in the history of our State,
    Federal funds were allocated to improve election administration
    and help Iowans vote.
        In 2004, we spent nearly 1.1 million of our $30 million in
    HAVA funds. We spent it in the following ways that led to 95
    percent voter registration and 75 percent voter turnout. We
    leased new voting machines to replace antiquated lever machines
    and hand-counted paper ballots. We made 37 more polling sites
    accessible for persons with disabilities. We conducted
    unprecedented statewide training for 127 county election
    officials. We provided a single uniform curriculum for training
    10,000 poll workers. We made 1.3 million voter guides available
    to Iowa households. In each precinct we provided information
    highlighting voting rights and responsibilities. We produced
    Braille instruction booklets for every precinct. We translated
    HAVA-specific voting rights information into multiple
    languages. We developed a toll-free assistance hotline and a
    Web-based on-line election center, and we mailed voting
    information to 10,000 Iowa National Guard and Reserve family
    members.
        All of these HAVA initiatives contributed to the highest
    level of voter participation in the history of our State. A
    record 2.1 million Iowans are registered, and a record 1.5
    million Iowans voted. Iowa's turnout ranked sixth in the Nation
    in 2004, up from the tenth spot 10 years ago.
        Finally, Mr. Chairman, let me describe our plans to ensure
    Iowa's complete and timely HAVA implementation. First of all,
    we are very proud of our HAVA State plan and the extensive
    grass-roots input that contributed to it. An EAC Commissioner
    who reviewed our plan rated it as one of the very best State
    plans submitted. Our plan is the road map to successful HAVA
    compliance.
        Voters, elected officials and technical experts will
    continue to be involved as we move forward. In addition, our
    office plans to visit each of Iowa's 99 counties over the next
    year to ensure statewide implementation.
        Just as the planning process has been open and inclusive,
    we will continue to be diligent in our efforts to provide
    ongoing information to the general public and policymakers. Our
    Iowa plan, the Iowa HAVA plan, meeting summaries, budgets and
    timelines are posted on our office Web site.
        Let me briefly outline the budget as it is divided into
    three HAVA core areas. Technology: We will use 17 million to
    purchase HAVA-compliant voting systems, and we have budgeted
    6.5 million for the development and implementation of new
    statewide voter registration systems. For voting machines, we
    are developing an efficient and cost-effective purchasing
    process. We developed an equipment funding formula that
    emphasizes equality and provides counties with up to 90 percent
    of the cost for their voting equipment. Machine replacement
    will be completed to coincide with two statewide elections in
    2005.
        In summary, I feel we have a plan in place and the
    commitment to excellence to ensure that all components of HAVA,
    technology training and education will be successfully
    implemented. We will get the job done by 2006. The changes we
    are making in Iowa's election are far-reaching, and they have
    already helped tens of thousands Iowans vote just as the Help
    America Vote Act intended. We recognize we couldn't be making
    improvement reforms if it weren't for HAVA, so I am here to
    thank you, Mr. Chairman, and Ranking Member Millender-McDonald
    and the members of this committee for your invitation to be
    here and your leadership on this critically important civil
    rights and voting rights issue, especially as we celebrate the
    40th anniversary in 2005 of the historic Voting Rights Act of
    1965.
        Thank you on behalf of the citizens of Iowa for providing
    us with this tremendous opportunity to make good election
    administration the very best in the country. It is an honor and
    privilege to testify today, and I would be happy to respond to
    your questions.
        [The statement of Mr. Culver follows:]

        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. We have to go vote, and only have one vote,
    and will return if you can stay. I do want to mention as we go,
    and, again, we will come back, but it is so critical for the
    remaining $900 million to be funded; otherwise it is an
    unfunded mandate. We promised 3.9 billion. Congressman Hoyer,
    Speaker Hastert, Leader Pelosi, at that time Bill Young now we
    have, and Jerry Lewis as the Chairman from California, and we
    have to work to get that funding, because we can't turn around
    and say we have 3 billion, and we are 900 million short. We
    have to have the whole thing. And I am hoping--and it has to be
    done this year, too; otherwise I think you are going to be
    hurting to spend the rest of the money to implement HAVA.
        So we will recess and be back.
        [Recess.]
        The Chairman. Committee will come to order. I want to thank
    the panel, the first panel and also your panel. Very impressive
    testimony.
        I want to ask a couple of generic questions, and anybody
    who wants to respond, provisional voting and any comments on,
    you know, a need for any tweaking of the system--uniformity. I
    have never believed--and I was asked this many times obviously
    this year, especially coming from Ohio, the number one
    battleground State in the Nation--but I was asked several times
    about how our State counts, whether they count the provisional
    balloting. That wasn't our role. Our role was to make sure
    people got a provisional ballot so they would not be
    disenfranchised. I don't think I can sit here and say, Ohio,
    here is how you determine whether you count that or not. So
    that was where I was coming from.
        But is there anything in the system that needs to be
    clarified on provisionals or any comments on that?
        Ms. Vigil-Giron. Mr. Chairman, I am sure my colleagues will
    have their comments as well, but I think when you left in
    general open-ended for States to decide, I think that was a
    good thing, by the way. We are now having to tweak what our
    State law and the uniformity and how we certify those envelopes
    with the information to be able to even include those ballots
    into the count. That is something that we are working on. I
    have rulemaking authority in my State and can develop
    guidelines in regards to what they are actually looking for the
    certification of those provisional envelopes.
        We are right now in the middle of a legislative session,
    and they are trying to determine if we should go and follow
    what Ohio did and just allow a voter to vote within their
    precinct only rather than what we do right now in New Mexico
    where you can vote anywhere in the county. The argument, of
    course, is that we have districted races, State legislators,
    representatives, State senators that are districted whose vote
    may not count if that voter votes outside of that line, that
    district, and therefore they will not be able to celebrate in
    achieving more votes in that election.
        I even have a proposal from my attorney general that would
    address anywhere in the State you can vote. But then, of
    course, that would leave everything else on the bottom excluded
    to count those votes. I have got that argument.
        So I don't know where my State is going to initially go in
    changing that aspect of where can I vote. Certainly the central
    data systems that we are going to be building, all of us,
    throughout the 50 States are going to assist us eventually; not
    today, probably not for the 2006 election or even the 2008. It
    is going to be very costly to have statewide voter data systems
    in place at all the polling places so that if a voter does
    present themselves, they can actually look up where you are
    registered to vote, and they can also look up if you voted
    early or absentee. It would be indicated immediately on that
    central voter data system.
        We will probably see fewer provisional voters out there
    because of our voter education aspect, that piece of it,
    because we are going to be contacting registered voters and
    making sure they know exactly what their precinct number is,
    their polling place is, House district, Senate district, and,
    of course, merging that central data system with motor vehicle
    records as they do in Representative Miller's State, and also
    taxation of revenue, tracking people to their correct
    residences.
        This central system is probably the most important piece of
    HAVA. Of course, everything works together, but that central
    voter data system is very, very important, and a lot of our
    States are very much behind in building them. So that is the
    other piece we are probably going to be asking Congress. I know
    the deadlines are set in stone, but we need to have some leeway
    in regards to building those central data systems.
        The Chairman. I have one follow-up question that I wanted
    to ask you because of the way you do vote in New Mexico. You
    can go countywide. What do you do, for example, take my home
    county of Belmont County, and I live in St. Clairsville, and
    down on the river is a town called Bellaire. If you can vote
    countywide and I go down to Bellaire to vote even though I am
    from St. Clairsville, and I sit there and vote on the Bellaire
    school levy as a nonresident, how do you pull that out and
    separate it You surely run into this in New Mexico.
        Ms. Vigil-Giron. Provisional ballots are hand-counted, and
    each one of those--after the certification of that envelope and
    that voter, and those envelopes are opened and matched to that
    voter, that precinct would be assigned to them or whatever, and
    anything that they could not take advantage of will not be
    counted, will be eliminated.
        The Chairman. Have to go through by hand? I don't know how
    you do it. Shocks me that you could. And then people would
    start to say, wait a minute, I know they voted on that school
    levy.
        Ms. Vigil-Giron. Every single one is challenged. Every
    single issue or candidate they are voting on is challenged.
        Mr. Culver. Mr. Chairman, I, as you noted, agree with you
    in terms of the question and concerns and challenges with
    respect to provisional balloting in 2004. I ended up asking the
    attorney general of Iowa for help in his interpretation of the
    Federal law. As you know, there were a lot of court cases
    across the country, and they weren't necessarily all making the
    same conclusion, although towards the end I believe they were
    getting more consistent in their rulings. But the tough part
    for me as the State commissioner of elections in Iowa was to
    try to follow the intent of the Federal law, which I believe
    was to help Americans vote.
        We cannot forget that 4- to 6 million Americans in this
    country, according to Caltech and MIT, were disenfranchised in
    2000. People that were eligible to vote, they were registered
    to vote and they showed up, and for all sorts of reasons,
    including showing up maybe at the wrong precinct or having some
    real confusion about where their precinct was, those votes
    weren't counted in 2000. So I think we were left in the States
    with an unclear understanding certainly of what your intent
    was.
        There was some effort to reach out to the Department of
    Justice for some help and some interpretation. I believe early
    on in the process as we were preparing for 2004, they were
    urging the States to kind of draw their own conclusions. But I
    think this isn't a role perhaps where the Election Assistance
    Commission could help.
        The resolution that was passed at NASS was brought up
    earlier. I personally support the continuation and authority of
    the Election Assistance Commission to establish guidelines,
    best practices and standards for--as we implement the Help
    America Vote Act. The EAC has accomplished a great deal. These
    four Commission members are uniquely gifted and talented and
    deserve enormous credit. And this is one area where I think
    they can, at a minimum, give the States some best practice
    ideas, some guidance, some direction. And I also agree that the
    States should have some rights as well in this process. But
    finally, I think it really comes down to training and voter
    education.
        I wasn't able to finish in my formal remarks on the budget
    that I laid out in the HAVA plan. We have a million dollars
    earmarked for uniform training so that in Iowa, nearly 2,000
    precincts, election officials and poll workers train people
    fairly so that they all understand the importance of ensuring
    election administration in Iowa is uniformly, fairly and
    consistently applied not only in Iowa, but I think across the
    country, because that was a problem in 2000. We didn't have
    uniformity and fairness and consistent application of State and
    Federal election law. And frankly, in 2004, we didn't have that
    with respect to provisional balloting, and it is very possible
    that as a result, tens of thousands of Americans were
    disenfranchised again. So this is an issue where we need some
    guidance.
        And finally on voter education. In Iowa, we are going to
    earmark $2.4 million in voter education that will allow us to
    put together things like this voter guide that went to 1.3
    million Iowan households that helps Iowans find their precincts
    so we don't have the provisional ballot challenges. We get them
    registered. This guide tells them how to register, when to
    register. It has a voter registration form in it. So I think
    the best practice and the solution at least initially is
    training and voter education, and that will hopefully reduce
    significantly the number of provisionals cast in the United
    States.
        The Chairman. One follow-up question I had for you. Now,
    there were lawsuits all over the country, and I didn't join any
    of them. I was asked by people. I didn't go on any of them. I
    didn't want to start down that road. And--because I believe the
    courts will act. And if we think the courts have not acted
    correctly, we can come back. You know the fire drill here in
    the legislative process. But there was a suit, wasn't there?
    And I apologize for not knowing, but there was an organization
    that filed on you and the attorney general
        Mr. Culver. That is correct, Mr. Chairman. There was a
    lawsuit filed brought by five Republican registered voters in
    Polk County against the secretary of state, a Democrat, and the
    attorney general, a Democrat, and the lawsuit was dismissed.
        The Chairman. And that was on the right of provisionals?
        Mr. Culver. That was primarily----
        The Chairman. Our secretary of state had one filed on him,
    too. Everybody did.
        Mr. Thornburgh. Badge of honor.
        Mr. Culver. Fortunately, we got through the process, and we
    were able to preserve the provisional ballots in case there was
    some sort of court challenge later and an effort would have
    been made later by a voter or a group to try to get those
    counted, but that never happened.
        Mr. Thornburgh. Mr. Chairman, if I may expand just for a
    moment on that. It is my opinion that the purpose of
    provisional balloting in the Help America Vote Act was to
    ensure that we never again disenfranchise voters. I believe
    that has occurred in that every voter, when they go to the
    polling place, now has the opportunity in which to cast a
    ballot. I also believe very strongly that it is up to the
    States to determine the qualifications of the voters within
    their own States. So I believe, in short, that we have done
    good work, and we should leave it where it is at.
        The Chairman. I think we had a case, I think it was up in
    Jefferson County in Ohio, and a young man was home from
    college, and he went in and he said, I want to vote. And they
    said, you have already voted. He said, no, I didn't, and they
    showed him where he voted, and he demanded the provisional, and
    they found out he didn't vote. Someone had voted in his name.
    Now, had he not stuck to his guns, he wouldn't have had that
    ballot. But that serves the purpose; even though they are
    saying you did vote, he didn't. And so given the provisional
    allows that to be checked out.
        Mr. Thornburgh. That is correct. And it gives us the
    ability to go back and check the facts one more time at a place
    that is not as harried as the polling places on election day.
    And through that thoughtful resolution of those very issues,
    those who have the right to vote and those who are qualified to
    vote, their votes are counted. Should you not have the
    appropriate qualifications, then it is my opinion that vote
    should not be counted.
        The Chairman. One thing we have to look past, is the actual
    deadline by midnight on election night where you have to have
    the winner or not. And I say that because some people were
    criticizing us in one of the States down South, I think it was,
    for possibly this would hold up an election for a few days or
    something. Well, you know, counting the provisionals, if it
    takes another couple of days, it takes another couple of days.
    And maybe people would not be happy with the outcome, their
    candidate didn't get elected, but at least these things were
    counted. So if it holds up an election for a few days, I don't
    think that is too much to ask.
        Ms. Vigil-Giron. Mr. Chairman, may I talk to that? Actually
    in New Mexico, we have 21 days before we certify an election.
    And the majority of the States have a number of days even
    beyond 21 days to certify elections. I believe it is either New
    York or another State has until December 2 to certify the
    results. Now, we don't--we have to talk about other paper
    ballots as well, it is not just the provisionals, and that
    certification process including or not excluding.
        We have on the front end absentee voting. In New Mexico in
    2000, we had 65,000 absentee ballots that were submitted. In
    this election we had 191,000 absentee ballots that had to be
    dealt with. That takes many, many days at the county level. It
    is not an overnight instantaneous gratification for any
    candidate or any issue that is being voted upon on election
    night. It is machine totals from that night that you can merge
    and tabulate and then begin the process of taking care of any
    other paper ballots, emergency ballots, in lieu of ballots, and
    making sure that those are either optically scanned, and if
    they are rejected from that optical scan reader, then you have
    to hand-count them. I mean, it takes many, many, many days.
        We have three audits that we perform in the State of New
    Mexico. The first one is the county canvass or audit. They
    submit all their results to us and tapes. We do the second
    audit from the secretary of state's office. And then we have an
    independent auditing firm that checks what we have done. So
    this overnight concept would be really great if that were
    possible, but not with now the introduction of the provisionals
    on top of our absentee process.
        The Chairman. I have a couple of more questions. I would
    like to ask one more question and yield to our Ranking Member
    so we can both ask questions. And it is in regards to you had
    some controversy and read about it--and I don't--I didn't
    follow up prior to this, which I should have, but you had some
    controversy in New Mexico, the ID, the implementation of the
    ID. And I think the articles had said that there was a
    technical interpretation. It was tough to implement the ID
    requirement. Did you want to comment on that?
        Ms. Vigil-Giron. Thank you very much, Chairman Ney,
    Representative Millender-McDonald. As a matter of fact, the
    controversy was the misinterpretation of a certain party to
    expand voter identification to all voters, not just to the
    minimum requirements that we finally adopted based on the Help
    America Vote Act. First-time voters who registered to vote by
    mail who did not provide an ID at the front end, in other words
    mailed a photostat copy, will be asked at the polling place to
    produce some type of identification, and I outlined in my
    advertisements on voter identification and voter education what
    type of ID would be required. You can take this or this or this
    if you registered to vote by mail and did not provide it on the
    front end. So the controversy was they were misinterpreting
    that. I mean, it was very clear. And, of course, we were able
    to keep that particular law intact all the way up to the
    Supreme Court.
        The Chairman. Because when we wrote the Help America Vote
    Act, we went on for weeks about this of what was an ID. And
    somebody said you have to have a government-approved ID. What
    if you don't drive or your State doesn't have a government ID?
    We went through this I don't know how many times, and we came
    out with the ID, or you could produce a bank slip or a wide
    variety of things.
        I am not even sure in my own State, and I have to talk to
    people on the board of elections, what we did with that,
    because one of the problems that I think we had in our State is
    all the money--and we are going to have another hearing on this
    probably in the next X amount of weeks--but all the money that
    was spent out there, particularly 527s that spent this money to
    hire people to register people to vote, and in some cases
    because--and I am not complaining about registering people to
    vote--but when it was done by groups or advocacy groups or
    political parties, they are very meticulous. When you all of a
    sudden start to hire, in Ohio's case, thousands of people, and
    you are paying money out there, then people will tend to--and,
    you know, a person who has been out of work, they get hired for
    10 bucks an hour, they are going to get as many slips as they
    can. And we had a lot of errors, as I understand, from our
    board of elections. I am not sure what we did about the IDs in
    these cases of hundreds of thousands of new registrants. I am
    not sure what we actually did about it in our own State.
        Mr. Rokita. In Indiana we had a similar issue, and it was
    resolved with a more conservative interpretation of the word
    ``mail-in.'' because of the legislative dynamics in our State,
    we weren't able to get a more liberal definition; conservative
    definition being that mail-in means only when delivered to the
    clerk by someone from the United States Postal Service.
        I can't believe that was the intent of Congress. Maybe you
    can help in this discussion today. But whether it is an
    employee of the U.S. Postal Service or a third party, it is the
    same issue, and that is no one got to see this person register
    to vote, and therein lies a huge opportunity for negligence,
    not to say that anything is intentional, but also direct fraud.
    And you saw it in some of the actions of the 527s this last
    election.
        The Chairman. Your statement was about the post office had
    to deliver--I didn't follow that.
        Mr. Rokita. If you register for the first time by mail, you
    are required to show some kind of ID. Groups in our State were
    saying, well, because these batch of voter registration forms
    weren't delivered by the U.S. Postal Service, they weren't in
    the mail. But, in fact, they were delivered in person by a
    third person, who the clerk never got to see the original
    registrant.
        It seems to me that is the intent; when you all decided
    mail-in, that that is what you wanted. But that is an issue
    that is out there, and it is a large issue because it allows
    527s and other overzealous groups like that to do some things,
    and it allows for negligence, those who might not have any
    direct intention, but may leave voter registrations in the
    trunk of a car for too long and drop them the day after.
        The Chairman. If you are a new registrant, you are supposed
    to produce some form of an ID.
        Mr. Rokita. If you are a first-time new registrant by mail.
    We couldn't resolve that issue what ``by mail'' meant.
        Ms. Millender-McDonald. Thank you, Mr. Chairman. And let me
    say that all of you are extraordinarily outstanding. Earlier
    comments did not pertain to you. I have--I do know of the
    gentlelady of New Mexico, and also send my best regards to my
    dear friend, your great Governor, along with my good friend and
    your great Governor of Iowa. Both are friends and outstanding
    Governors.
        I had an opportunity to chat a little bit with Secretary of
    State Culver, and you are outstanding yourself; and the
    gentlelady, first Latina and now the chairwoman and president
    of NASS. I congratulate all of you.
        I understand--I talked with our county register recorder,
    and she spoke of the barrage of registration affidavits that
    she received in this last election. Certainly that goes right
    to you as well as Secretary of State Vigil-Giron that you spoke
    about, your absentee ballots that were just a tremendous number
    from the last election, Presidential election. It would seem to
    me like when you speak about this overload of ballots, albeit
    absentee or provisionals, and Secretary of State Culver talking
    about the need for uniformity, and EAC gave you best practices
    because they have gone all over the place to make sure they get
    the best practices, there certainly is a need to keep EAC,
    but--all indications--because they are your feet. They can move
    into other areas that you perhaps have no time to move into.
    And so I guess I am concerned about the resolution, given that
    they are mandated to do certain things. They recognize that
    they are not a regulatory system, and they have assured the
    chairman and I that they will not by any means venture into
    that area.
        Your open letter to Members of Congress indicated that--and
    I am just reading portions--in this case, uniformity does not
    equal success, and yet Mr. Culver said we need uniformity.
    Expound on that for me in terms of your resolution, because if
    you are going to have one State doing one thing and another
    State doing another thing, it seems to me there has to be some
    semblance of uniformity so that no person--as I was going to--
    and I will speak to Secretary of State Thornburgh about
    disenfranchisement after this, but please talk to me about
    that, because it seems to me like some uniformity must be put
    in place irrespective of States, small or large, and that
    should be driven by EAC.
        Ms. Vigil-Giron. Chairman Ney and Congresswoman Millender-
    McDonald, I appreciate Congressman Ney's comments early on by
    saying that he also does not believe that we should have the
    Federal Government overseeing elections, and that should not
    happen. The reaction or the fact that so many pieces of
    legislation are being written up and possibly even introduced
    right now as we speak in regards to election reform is, quite
    frankly, also reactions to probably what some of your Members
    of Congress are seeing out there.
        Uniformity was an issue we discussed back in 2001 after the
    2000 election, and we were very, very clear when we presented
    to you during a similar House Administration Committee. And the
    four areas that we were very clear about that you all
    incorporated and made sure to incorporate in the HAVA bill was
    the issue of a uniform voter data system, uniform data systems
    and standards that had to be produced by someone. The issue of
    voter education was another issue that was very, very clear,
    and poll worker training. That is what we came to you after--
    our election task force after the 2000 election. And I thank
    you, by the way, for taking those very clear messages that had
    to be addressed.
        So uniformity is an issue, but in terms of uniformity
    across the State in regards to only the same type of voting
    machine, no, we can't have that. So that is why the standards
    right now are being created or at least partnered with what is
    already in place with the 2002 voting standards.
        To address the issues of the paper trail aspect of it, that
    has to be addressed. Now, the disabled community, of course,
    will see an optical scan voting machine that has the capability
    of listening to their ballot, but then they have to actually
    take the ballot and insert it. And so that may be a problem for
    the blind voters out there. They may not be able to place it.
    So they are going to have to require assistance to be able to
    place their ballot to be counted and tabulated. That is a
    standard of a different type of voting machine that we cannot
    create.
        And I, of course, also respect the work of the EAC and they
    are doing an excellent job. The fact that we are 9 months
    behind schedule to 11 months behind schedule, that was also
    something that was debated during the meeting where the
    resolution was presented. We were talking about the rulemaking
    aspects of the EAC, which, of course, was something that none
    of the secretaries wanted to see. It was not attacking the work
    of the EAC or the individual Commissioners. They are doing an
    excellent job. It was this reaction of all the legislation that
    is being introduced that I hope that you will, from this
    committee, and, of course, from the original sponsors of this
    legislation, keep at bay and make sure that it does not happen.
        I believe that the EAC is doing a great job, and that they
    have a real purpose as a partner with the National Association
    of Secretaries of State, and we all recognize that and do see
    their relevance, and they have got a lot of work, and they do
    need your support as well.
        Ms. Millender-McDonald. So this resolution was an
    attention-getter, and it has certainly been given our
    attention. It appears to me that when another--it says NASS
    position on funding and authorization of the U.S. Election
    Assistance Commission, it is saying that duties assigned to
    them should be deferred to the National Institute of Standards
    and Technology. So it appears to me like, in essence, you are
    trying to say they should move out and let this group take
    over, which, in fact, this group has limited capabilities of
    doing that which you are talking about, education and training,
    that was so explicitly in HAVA.
        And certainly I can see you getting a little concerned
    about the myriad of pieces of legislation that is coming before
    us as it does all the time after an election. But I will assure
    you with this chairman and this Ranking Member, we will try to
    find the nexus of amending some of--and improving upon HAVA and
    allowing you to have the flexibility that you must enjoy doing
    your job as secretaries of state.
        Mr. Culver.
        Mr. Culver. Quickly, Congresswoman Millender-McDonald. I
    believe the NASS resolution arises from frustration with the
    lack of certainty in many HAVA areas and from the concern from
    some NASS members with the Federal intervention into what has
    traditionally been State rights or State issues.
        I support funding to the EAC and the continuation of the
    EAC authority to assure American voters that every vote is
    properly counted, and everyone who is entitled under State law
    to vote has the opportunity. And so I support the continuation
    of authority for the EAC to give guidance, direction,
    guidelines and best practices along with other groups like the
    National Association of State Election Directors. This is a
    partnership. We need to bring everyone to the table, and
    Congress, to ensure that we never again have the problems that
    we had in this country in 2000.
        You know, elections, as we knew them before, it is changed.
    This is the first time since 1789 that the Federal Government
    has had a direct role in election administration. So it is no
    surprise that there is some pushback with respect to this new
    landmark piece of Federal legislation that I believe is well-
    intended and necessary to help people vote. And we can't just
    simply go back to the States rights argument. That didn't work
    in 2000. We have 46 million people in this country that were
    disenfranchised. I don't think anyone in this room thinks that
    is okay. So we have to be very careful as we implement this to
    not create the same problems potentially all over again.
        And I am not suggesting that it is necessarily a perfect
    fit either. I think this is a challenge, but we are all up to
    it. And I am glad we are having this hearing today because in
    the next 21 months in every State in this country, we better
    make darn sure that we protect voter rights in this country and
    don't repeat our past mistakes. And, Mr. Chairman, to your
    credit, I don't believe we are going to do it again, and we
    have a lot of work to do, and the EAC.
        The Chairman. I appreciate your comments and also the
    comments that you made about keeping the legislation at bay,
    even though I was shocked, because I didn't know this was
    coming by the resolution when I found out about it. I think it
    was last night, or our staff told me. Even though I was
    surprised and didn't see it coming, and even though I don't
    technically agree with it, I understand your motivations. And
    you see a lot of these things. And I cannot tell you how many
    Members, both sides of the aisle, have come to me and they say,
    you need to do this. You need to investigate that. You need to
    do it now. And this was before the November election. And we
    could have had, you know, 5 days of hearings a week, and I
    think--I don't want to speak for Congressman Hoyer, but I think
    Steny Hoyer understood, as did other Members, but I think Steny
    Hoyer understood there was a balance there, and let us not open
    everything back up. We have to be cautious. We just don't say,
    well, there is nothing more that we look at or tweak. It is a
    horrific balance, but I believe we all can work through it.
        Ms. Millender-McDonald. With this chairman, we will. The
    one thing for sure, he is committed to making sure there is a
    balance.
        We were also thrown aback that so many pieces of
    legislation came so quickly after we sat for the 109th
    Congress. So do rest assured he and I will keep our eyes open.
        When we created HAVA, of course, we couldn't put everything
    in it. We put those things that you secretaries of state talked
    to us about. We go back to the drawing board with what you have
    just outlined today, and we will continue that process of
    improvement. But we do feel, Mr. Culver, that everyone should
    come to the table with this.
        And, of course, in the 1700s we had no idea that the
    Federal Government would be putting its mighty hand in this,
    but we are doing it very cautiously because we do recognize and
    respect States rights, and Federalism is certainly the mantra
    on the Majority side. So I do appreciate that.
        Let me just say a few things here. Mr. Thornburgh, you
    mentioned that you did not see a widespread of--well, not a
    widespread--of voter disenfranchisement. However, I think you
    would agree with me in this room that when one voter is
    disenfranchised, the country is disenfranchised to a great
    degree. So let me thank you for your synthesizing all of your
    systems. I think that is what you stated in your opening
    statement. And all of your precincts are ADA-accessible. That
    is a tremendous success, and we applaud you on that.
        But the provisional ballots--let me digress for a second.
    Ten hours of persons waiting in line ultimately had to leave
    without voting. The chairman and I and other Members of
    Congress get those calls. You do not necessarily get those. So
    we have to put into place--or you do get those?
        Mr. Thornburgh. Thank you for recognizing.
        Ms. Millender-McDonald. You don't get as many as we get
    perhaps, but you get your share of those. The provisional
    ballot is when all else fails, persons divert to that. What can
    we do to enhance that And you may have spoken to that before I
    came in from voting, because I was held up on the floor talking
    to other Members about this hearing. They saw the first part of
    it on C-SPAN. But what can we do to improve upon provisional
    ballots, Mr. Thornburgh?
        Mr. Thornburgh. If I may address that very quickly, and
    thank you for the compliments. I appreciate that.
        Ms. Millender-McDonald. You have one more coming. You have
    the Kids Voting USA. Now, that I really do like.
        Mr. Thornburgh. Let me just say perhaps this may be an area
    where me and my good friend the secretary of state of Iowa may
    disagree just slightly, where I heard discussion about the need
    for more Federal uniformity in a lot of different areas. I
    believe the standards should be, you tell me what you want
    accomplished, tell me what the objective is, tell me the goal
    and the desire, what you wish to see happen, and if I don't do
    that, there is lots of oversight that DOJ can bring on board to
    make sure that I perform the task next time that you would like
    to see happen.
        I do agree with you that a single voter that is
    disenfranchised is too much. We have to do things to make sure
    that never happens again. The provisional ballot does allow--we
    have the mechanism to prevent that disenfranchisement from
    taking place right now with provisional voting. It is a blanket
    system. If there is a question about your status, you are
    allowed to cast a ballot.
        When we talk about the uniformity, it is important to note
    in the State of Kansas, like in the State of New Mexico, if a
    person shows up at any polling place within that county, then
    they cast that provisional ballot, and we will count those
    offices for which they had the ability to vote, the countywide
    or statewide or national offices. However, I don't believe that
    would work so well in districts in California, nor would it
    work well in districts in New York or perhaps in the chairman's
    Ohio.
        We have to understand those elements, and that is where the
    ability for a State to determine the appropriate qualifications
    for a voter within their boundaries, I believe, is very
    important. So while we have the uniformity of a provisional
    ballot, the way in which we apply that as qualifications of
    voters I do believe is very important to maintain at the State
    level.
        Mr. Culver. Let me just add quickly, if I could, I agree
    with Secretary Thornburgh in terms of, yes, we do have now,
    thanks to the Help America Vote Act, a system in place to give
    people a provisional ballot if there is a question about their
    eligibility. The problem is do we count them. The title of the
    bill was not to help everyone get a ballot; it was to make sure
    that people get those ballots counted. That is where some sort
    of consistency and uniformity at some level is required.
        I don't care if you live in Dade County or Des Moines. I
    wouldn't be satisfied if I were a voter in one precinct in one
    State and I had certain rights and protections, and my
    provisional may or may not be counted, and then somewhere else,
    you do the exact same thing, you don't have your ballot
    counted? That is arguably disenfranchisement.
        I think our goal here is to count the ballots to help
    people vote; not to help them show up and give them a
    provisional, but to make sure their vote is counted and counted
    accurately. It is just not okay to hand out 2 million
    provisionals. The question is, are we going to treat those
    provisional ballots consistently and fairly in Florida or
    Kansas.
        Ms. Millender-McDonald. Mr. Culver, you have just made
    millions of voters feel very good, because that is what they
    want you to do. They want you to balance States rights with the
    right to vote. And you have to do that. You just must do that.
    This is a country of immigrants, and immigrants are becoming
    more and more involved in this political process, and so we
    must make sure that those who wish to vote and those who can
    vote can vote and their vote be counted.
        The last thing I think I have here that each of you can
    speak to, what is the status--and let me just compliment Mr.
    Rokita. I haven't left you out. I wanted to compliment you on
    being one of the youngest to serve in the position of secretary
    of state. I want to give kudos to everyone today.
        What is the status of your State in implementing a
    computerized statewide voter registration database? Each of you
    can answer that.
        Mr. Rokita. We are well on our way to meeting our deadline
    of January 1, 2006. Indiana was a State that didn't have a
    statewide voter file. It had 92 separate lists. And the
    success--and we are on target to meet it again by the 2006
    deadline.
        I can attribute the success in Indiana to the fact that we
    brought everyone to the table that we could. We had 28 members
    of our Vote Indiana team. We had 42 meetings. We kept getting
    the buy-in of the county clerks. I personally visited every
    county clerk in all 92 counties in their office twice so far
    being in office, and we talk one on one. And we didn't need the
    EAC to tell us that, nor would I expect the Federal Government
    to tell me that, as a separate elected officeholder and, humbly
    say, leader. That is what leaders do, and you get the results.
        Ms. Millender-McDonald. Is it not the autonomy?
        Mr. Rokita. Statewide voter file is coming along fine. We
    have a pilot starting next week in 10 percent of our counties,
    and that is an attestation to the buy-in that we have of the
    local officials. Fifty percent of the counties wanted to be
    pilots just right out of the box.
        I do want to make one very short comment with regard to the
    last discussion, because I think there is something missing
    here. I took a constitutional oath to defend the Constitution
    of the United States and of the State of Indiana. Voters'
    rights and States rights are not in conflict. Those are not
    mutually exclusive goals at all. In Indiana, we had a very
    small amount of provisional ballots even cast. It is not
    because they were turned away. We mainstreamed them right to
    the box through fail-safe procedures that protected the
    integrity of the ballot and the integrity of the vote.
        And there is some disenfranchise that hasn't been mentioned
    here yet. It is just as equally bad to disenfranchise someone
    whose vote was cast but then stolen or diluted by someone who
    is not eligible to vote. Not only do we want to get every
    person to the polls and vote, but we only want do that when you
    are eligible to vote, when you are a citizen of the United
    States. And when we lose that distinction and lose that last
    clause of the sentence, I think we undermine the confidence of
    the voter, because there are millions of voters out there as
    well that would say, why go to the polls because they didn't
    even check to see that my signature matches. They let everyone
    else just cast their provisionals. And I heard the secretary of
    state say that he wants everyone to be able to cast provisional
    ballots. They are not connecting the eligibility factor, and I
    think that undermines confidence as well.
        Ms. Millender-McDonald. That is very true. However, you
    know there are a lot of registered voters, citizens of this
    country, who did not have that opportunity to vote. And so we
    cannot lose sight on that because irrespective--and I hear what
    you are saying and agree with what you have said, but just
    education is the key here. And I think a couple of you said
    that, education is the key, because there are many elderly
    folks who really don't know the essence of provisional voting
    if something happens at their precincts. But thank you for
    those comments.
        Ms. Vigil-Giron. Thank you.
        In New Mexico, my first term in office in 1987, we were
    able to get an automated voter registration system in 33
    counties where 33 county clerks would report all of their voter
    registrations on a quarterly basis to my office. This was back
    in 1987. In 1999, my second term in office, we decided that we
    needed to go with the new technology and start building a
    central data system that would report to my office on maybe a
    weekly time period. And so we began the process with the State
    committing $2 million of their general fund money to begin the
    building of that central voter data system.
        In 2002, when we passed the Help America Vote Act you all
    passed and signed into law in October, it became a different
    animal where it would be a real-time, on-line system. So going
    back to our vendor, we started building this new software, and
    so we have been in that process of building. We have all but
    four counties that are hooked into the central data system, and
    we will be up and running 100 percent to be able to check the
    felon files correctly, the deceased voters correctly, motor
    vehicle records. We will be able to identify 18-year-olds that
    need to be sent a voter registration application and
    instruction and application materials by April of this year.
        So I am very, very pleased that ultimately I think what we
    want to see is that all States are hooked up to a central data
    system where, across State lines, we can remove duplicate
    voters that should not remain on State lists if they are not
    living there and want to be registered to vote in their most
    current residence. So I am excited about what New Mexico is
    doing.
        Ms. Millender-McDonald. Kudos to you for an outstanding
    system.
        Mr. Thornburgh.
        Mr. Thornburgh. I would like to say that I believe the
    State of Kansas is well on its way to a central voter
    registration system. There is a great deal of work to be done
    throughout America to implement what is a very tough element on
    this.
        Just probably for my own purposes, let me explain what I
    hope is the purity of my philosophy. You may have heard
    resistance on my part to too much Federal oversight. And at the
    same time, I had that same resistance to too much State
    oversight over the counties as well. And what we have tried to
    do in the central voter registration system is to ensure that
    the counties were the ones that designed this system. They know
    what the people who are doing the keystrokes or the work they
    are actually doing on that day, so they helped us design the
    system what we needed to accomplish and do. We provided the
    broad guidelines of what needs to happen within the system. The
    counties designed it through a wonderful task force we had put
    together for that.
        The bottom line is because the counties designed the
    system, the State provided the incentives, we had all 105
    counties in the State of Kansas. Every single county
    voluntarily came on board with a county-designed election
    management system. That means they had to give up what they
    know and what they trust, buy in--not buy in, because it is
    being provided, but to become part of a statewide system
    because it was done with their ownership as well as with the
    incentives.
        I believe the State of Kansas is right on board to having a
    very uniquely designed system that will accomplish exactly what
    you set out for us to do through HAVA.
        Ms. Millender-McDonald. Mr. Culver.
        Mr. Culver. The only other comment that I have, and I want
    to state this for the record, and it goes back to what
    Congressman and--Chairman Ney said about election results. You
    know, obviously, I think we can all agree that the Associated
    Press and CNN and other organizations just didn't get it right
    in 2000. And then again in 2004, we had some questions and
    problems with exit polling and projections. So I would ask
    Congress and maybe this committee, once again, to help us solve
    this problem of overzealously trying to figure out who won or
    lost elections.
        And I agree with Chairman Ney that we have to let the
    process work. And in Iowa, along with New Mexico, we were both
    extremely competitive, two of the closest States in the Nation,
    and there were some question about was there a delay in Iowa
    with respect to reporting or calling the race. And here is what
    happened quickly. As of noon the day after the election, county
    commissioners of elections in Iowa unofficially informed us
    that over 40,000 absentee ballots were still outstanding. Also,
    10- to 15,000 provisional ballots were yet to be counted or
    sorted through. At that time, President Bush led unofficially
    by about 13,000 votes. Iowa election laws spell out the process
    and the time lines for counting these ballots. Iowa--the
    secretary of state in Iowa doesn't call the race. We count the
    ballots. We certify that the ballots were counted and counted
    accurately. And local election boards in Iowa don't start
    counting absentee ballots and provisional ballots until the
    Thursday at noon following the Tuesday election. So we all had
    to wait and see and be patient with respect to who ultimately
    won and lost.
        So Iowa's election laws specifically lay out rules with
    respect to how we handle absentee ballots by mail, and in Iowa,
    they can be counted all the way until the following Monday at
    noon as long as they are postmarked prior to election day. So
    maybe this committee, and with your leadership, Chairman Ney,
    and your leadership, Congresswoman Millender-McDonald, we can
    kind of look at that as we move into the 2006 and 2008 cycles,
    because we still have to make sure that voters across this
    country realize and this is a States rights issue, that States
    handle counting of ballots a little bit differently in terms of
    their time lines and when they count provisional ballots, when
    they count absentee ballots. But it certainly potentially could
    lead to a lot of frustration and anger, once again, if, for
    example, in 2006 or 2008 we have a few States that are too
    close to call, and voters get a little uneasy about why they
    have to wait.
        And frankly, there was some misinformation out in 2004
    about what was going on in Iowa, and it created an unnecessary
    rather political environment that Iowans certainly didn't
    deserve, Republicans, Democrats and Independents, and the 1.5
    million people who voted that day.
        Ms. Millender-McDonald. Your jobs are not easy. We
    appreciate the work that you do. We appreciate the work that
    you do, and we are here to assist you. Thank you so much.
        The Chairman. I just have a couple of quick questions. In
    our Ohio Legislature, they have basically told the secretary of
    state, you have to have a paper trail, so we are a State that
    requires that. And on the one hand--and they have bound our
    Secretary of State's hands. He is being in a way pushed towards
    a decision now on the optical scan. Of course, that makes
    another problem because there is no standard yet on optical
    scan that I know of for the issue of if a person has a form of
    disability. That means Ohio is probably going to have to have a
    bifurcated system of if they go with optical scans, and then
    one machine is going to be a DRE, and then you have to have one
    backup, because one pure mandate in HAVA is a machine per
    precinct has to be; not should be, but has to be. So if Ohio
    goes to optical scan, and you have six machines in precinct C,
    and one of them is a DRE, and that one machine breaks down,
    what are you going to do And if you have all DREs, and one
    breaks down--so that is another issue. Ohio will probably have
    to have two different types of machines.
        Was there anything done in your legislatures that the
    legislatures came back and said you must do this and mandated
    certain machines?
        Ms. Vigil-Giron. In New Mexico they are looking at this
    issue right now. My Governor seems to think that having a paper
    trail is very important. Most of our voting machines right now
    must follow the voting standards of 2002, which require them to
    have ballot image retention. I will have to remove a certain
    percentage out of my State. They were grandfathered in and
    allowed to stay in the State of New Mexico, so we are going to
    be moving those out very soon because they do not produce that
    ballot image retention.
        Paper trail can be defined many different ways. You are
    hearing the voter-verified paper trail is one system where they
    can actually scroll and see the way that they have voted. And
    it was implied here a while ago that you can manipulate
    anything for the final totals. You can go ahead and print it
    out the way they voted it, but then manipulate it so that it
    says something else. That is one system.
        Then you have the paper audit trail that is already
    produced from the majority of our machines. There are tapes,
    five tapes, that are produced at the end of the night from
    every single voting machine posted outside of the polling place
    for the public to view, and then the remainder of the tapes
    sent to the various areas where they must be verified and
    tabulated and kept as part of the inventory. And then you have
    the paper-verified paper trail that an optical scan has. I
    mean, you have a ballot that you have voted, and you have
    inserted into that optical scan reader, and if you voted right,
    it will accept it. If you overvoted, it will reject it. You
    will be given another ballot to be able to vote again with
    instructions.
        So you are looking at just different kinds of semantics, I
    guess, out there and different kinds of systems. We will have
    to have a DRE for HAVA-compliant, one per polling place. We
    will have to do that. We currently have those type of voting
    machine systems that were certified by the State Voting
    Standards Committee, and we adopt the Federal standards, and it
    is mandatory that we adopt them. For any voting machine company
    to be tested and certified by those testing authorities, they
    must get the certification in order to apply to the State of
    New Mexico, and then we test them based on our election laws.
    They must be stand-alone systems that can't be hooked up to one
    another. They cannot transmit the results through the Internet.
    That is against State law.
        We are limited to a certain number of voting machines that
    have been certified for the State of New Mexico. If we add that
    extra component of the paper-verified voting machine system, we
    will want to make sure that the standards that are being
    created that do address those different types of paper audit
    trails or verified paper trail, that we incorporate those if we
    are even going to include those in State law.
        Mr. Thornburgh. If I may add briefly to that, I believe the
    discussion of verified voter paper trails is a very important
    one to have. My concern, quite frankly, if we drive a specific
    technology through statute, if we specifically say each voter
    has to be given a piece of paper, that eliminates any future
    enhancements that may take place. If we talk about each voter
    needs to be able to verify that their vote was counted in the
    way in which it was cast, then whatever technology becomes
    available 5 years from now, we can take advantage of that great
    technology as well. I don't pretend to know a great deal of
    technology, but I know there are great minds out there that are
    thinking of ways to achieve this. If you tie our hands by
    saying it has to be a piece of paper that we give to that
    particular voter, I think you really have tied our hands.
        The Chairman. I am sorry I brought up the word ``paper
    trail.'' Linda Lamone is here from Maryland, director of
    elections, who helped us in the beginning, too, with HAVA to
    get us to where we are at today, and Maryland addressed this
    issue of checking the machines. So that can be addressed, and I
    think you went about that the right way.
        I have talked with Congressman Larson about the fact that--
    you know, of what they do with the casino equipment. But I did
    argue at the time on the paper trail, if you can fix the
    machine, then you can fix the machine to fix the paper trail.
    So the issue is making sure the machine has its integrity, I
    think, is a critical part to it.
        But the other thing, too, and you hit something on the head
    that really had scared me. I went over to see Senator Enzi, and
    he showed me the machine where it is all encased. If you have
    that paper laying out there, and the next person says, that is
    mine, I want to take that with me, then you are going to have
    that kind of argument, and also the issue of how secret does
    the ballot then become. And if you take this, and somebody is
    standing outside the door and has some type of authority over
    you to say, how did you vote, let me see what you did, those
    are all issues that arose about the paper issue. Who handles
    the paper? What do you do with it afterwards? But that doesn't
    mean you still shouldn't have verification of machines. We have
    to be obviously prudent about that so that nothing is fixed at
    the point of a company being able to rig it.
        Mr. Culver. Mr. Chairman, I think that people of this
    country and the voters of the United States should decide what
    type of voting machines they want. We have up to $4 billion on
    the table thanks to you and members of this committee and the
    House and the Senate. We need to listen closely to what the
    voters in our States want, and this isn't a problem. The
    manufacturers, the vendors, I guarantee you, with $4 billion
    available, they will provide what their customers and voters
    want.
        I think we ought to go out in the field in every county and
    cities across our States and listen to what the voters want. We
    need to restore voter confidence in this country. It is
    critically important. Look what happened in Washington State,
    for example, in the Governor's race. This is important. They
    did a machine recount with precinct count optical ballots. The
    machine recount said pretty much the same thing that the
    unofficial results concluded. It wasn't until there was a hand
    recount that they picked up a--hundreds of votes, because
    marks, ovals, were not darkened enough. They were circled. They
    were checked. And so the election recount board in Washington
    State, to their credit, and Secretary of State Reed did, I
    think, a very honorable job; it wasn't until they went through
    each and every one of those hand paper ballots, those optical
    precinct count ballots, that they realized that they were wrong
    and they didn't count eligible votes.
        So I am not sure precisely what the answer is, but we need
    to, again, make sure that we count every vote as it was
    intended, and that is sometimes very hard when it comes to
    human error or faulty equipment or pencils that aren't
    sharpened enough or misinformation about the instructions. I
    mean, we see a lot of voter errors, but we also see errors on
    the side of--sometimes on the election official side of the
    equation. So this is critically important, and I am glad we are
    having the discussion today. And I think we should do exactly
    what the voters of this country demand with respect to a paper
    trail or not a paper trail.
        The Chairman. On the other side of the aisle, with respect
    to Washington State, Republicans will tell you that votes were
    counted and then recounted, and then votes were added until the
    Democrats achieved what they wanted. I am giving the other side
    of this. I don't pretend to know the whole story there, but I
    am just saying that, and I am not saying whether that is all
    correct or not.
        Having said that, though, let's use that as an example, and
    forget what I said for a second, but use it as an example that
    if this was clarified in the beginning whether those 600 votes
    or 700 should have been--in the first place should have been
    counted, there wouldn't even be an argument. Maybe those 537
    votes should have been counted and weren't. But if we can
    continue to keep during these controversies--keep clarifying
    this and work now to clarify in the future the magic 537 or 600
    votes or whatever it is in the state, we can hopefully avoid
    some of these controversies.
        The one thing that I wanted to say, and I imagine down the
    road in the future, you know, it will be like an ATM machine in
    a sense--you know, we can go over to Italy. And in Rome I can
    insert my card, and the gentlelady can insert her card, and we
    feel secure and confident to get our money, and it knows who I
    am with my code and things. Down the road, I could see the
    possibility of voting statewide because you are going to a
    machine, you know, you do the iris scan, and then it says Bob
    Ney. And you happen to be in Cleveland, Ohio, but you can vote
    in St. Clairsville for the school race, and that would work.
        Because we are not to that point, the one thing I wanted to
    again say that confuses me, I don't know how we would do it, to
    your point, Secretary of State Culver. I don't know how we as a
    Federal Government tell you how to count that provisional
    ballot. But I don't know how we would go in and write one rule
    for every state, because when do people register to vote in
    your state versus New Mexico? It is worth discussing, but I am
    not sure how we do it.
        My last question. I asked about two controversies you all
    had. How about the other two secretaries of state? Did you have
    anything that was--I didn't read anything on the wire service,
    but did you have something that was horrific?
        Mr. Thornburgh. Let me just say I really love good boring
    Kansas elections. There were no major controversies in the
    State of Kansas. We had local issues, and there were recounts,
    and there were a number of races decided by a handful of votes,
    but the process in place ensured that everyone who was eligible
    to vote had the right to vote. Those who cast provisional
    ballots, those ballots were counted, and we ultimately came to
    the right decision based upon the vote of the people.
        Mr. Rokita. Mr. Chairman, Indiana had a very good election
    process. In my original comments, we have not had anywhere in
    this country or this world a perfect election, but people had
    equal access and opportunity to vote. We haven't had lawsuits.
    We haven't had planeloads of lawyers or media. And we are not a
    battleground State.
        It goes to a larger point, but again, we are kind of
    glossing over the constitutional aspects of this. We are coming
    to a point in this Republic, in this democratic process, where
    there is so much power to be retained or gained that people are
    getting to the point where anything can be said or done to gain
    an electoral advantage. We, as leaders at the State level, and
    this Congress, and everywhere who support to defend the
    Constitution need to remember what Congressman Ehlers said
    about the Nixon race. At some point, there was a dispute, and
    it was a very close race, but for the good of the country and
    confidence of voters, it was amicably decided, and the business
    of the land went on. And we have to get back as a group to that
    concept, and it can't necessarily come from Washington, DC.
        The Chairman. I hope one of you are the battleground next
    time instead of us, although we did appreciate 50 some thousand
    people of both sides of the aisle that visited our state for 6
    months and fed our economy. I knew there was something wrong
    when I was down in St. Clairsville with Bob Evans, and I walked
    in, and this guy had a hat on, and it said, ``Coal is Dirty,''
    and considering that we are the highest coal-producing county.
    And I said, what are you doing He said, I am here campaigning
    for Kerry. And I said, ``That is a good hat, keep wearing
    that.'' But we had people from both sides of the aisle visiting
    our state.
        Ms. Millender-McDonald. Mr. Chairman, let me just say that
    this has been absolutely an excellent hearing. We thank you so
    much for convening this hearing because this hearing has really
    enlightened me to a lot of things. This committee, and I think
    I can speak for the Members of Congress, we are not by any
    means trying to usurp the authority of the States. We are
    trying to see whether we can answer to the call of voters those
    who have been disenfranchised, and the operative word is
    access. Let us not forget that. Thank you so much.
        The Chairman. I want to thank the gentlelady and close by
    thanking again the first panel and also you for your wonderful
    testimony and great job you all are doing. And I really believe
    this brought a lot to the process today. And thank the
    gentlelady.
        I ask unanimous consent that Members and witnesses have 7
    legislative days to submit material into the record, and for
    those statements and materials to be entered into the
    appropriate place in the record. Without objection, the
    material will be so entered.
        The Chairman. I ask unanimous consent that staff be
    authorized to make technical and conforming changes on all
    matters considered by the Committee at today's hearing. Without
    objection, so ordered.
        Having completed our business for today and for this
    hearing, the Committee is hereby adjourned.
        [Whereupon, at 2 p.m., the committee was adjourned.]