[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
HEARING ON OVERSIGHT OF HAVA IMPLEMENTATION
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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
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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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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.]