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



 
              HEARING ON OVERSIGHT OF HAVA IMPLEMENTATION

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

                                HEARING

                               before the

                   COMMITTEE ON HOUSE ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

            HEARING HELD IN WASHINGTON, DC, FEBRUARY 9, 2005

                               __________


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

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

                           Professional Staff

                     Paul Vinovich, Staff Director
                George Shevlin, Minority Staff Director












                    OVERSIGHT OF HAVA IMPLEMENTATION

                              ----------                              


                      WEDNESDAY, FEBRUARY 9, 2005

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

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

                  STATEMENT OF GRACIA HILLMAN

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

                  STATEMENT OF PAUL DeGREGORIO

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




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

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

                STATEMENT OF REBECCA VIGIL-GIRON

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



    [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.]
