[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]




 
        OVERSIGHT HEARING ON THE ELECTION ASSISTANCE COMMISSION

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON ELECTIONS

                           COMMITTEE ON HOUSE
                             ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

             MEETING HELD IN WASHINGTON, DC, AUGUST 2, 2007

                               __________

      Printed for the use of the Committee on House Administration


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                   COMMITTEE ON HOUSE ADMINISTRATION

                ROBERT A. BRADY, Pennsylvania, Chairman
ZOE LOFGREN, California,             VERNON J. EHLERS, Michigan,
  Vice-Chairwoman                      Ranking Minority Member
MICHAEL E. CAPUANO, Massachusetts    DANIEL E. LUNGREN, California
CHARLES A. GONZALEZ, Texas           KEVIN McCARTHY, California
SUSAN DAVIS, California
ARTUR DAVIS, Alabama
                                 ------                                

                       Subcommittee on Elections

                  ZOE LOFGREN, California, Chairwoman
CHARLES A. GONZALEZ, Texas           KEVIN McCARTHY, California
SUSAN DAVIS, California              VERNON J. EHLERS, Michigan
ARTUR DAVIS, Alabama


        OVERSIGHT HEARING ON THE ELECTION ASSISTANCE COMMISSION

                              ----------                              


                        THURSDAY, AUGUST 2, 2007

                          House of Representatives,
                         Committee on House Administration,
                                                    Washington, DC.
    The committee met, pursuant to call, at 2:12 p.m., in room 
1310, Longworth House Office Building, Hon. Zoe Lofgren 
presiding.
    Present: Representatives Lofgren, Gonzalez, Davis of 
Alabama, Ehlers, and McCarthy.
    Staff Present: Liz Birnbaum, Staff Director; Thomas Hicks, 
Senior Election Counsel; Janelle Hu, Election Counsel; Jennifer 
Daehn, Election Counsel; Matt Pinkus, Professional Staff/
Parliamentarian; Kristin McCowan, Chief Legislative Clerk; 
Daniel Favarulo, Staff Assistant, Elections; Kyle Anderson, 
Press Director; Gineen Beach, Minority Election Counsel; Fred 
Hay, Minority General Counsel; and Bryan T. Dorsey, Minority 
Professional Staff.
    Ms. Lofgren. The Subcommittee on Elections will come to 
order. Today's Elections Subcommittee hearing will focus on the 
standards, management, and procedures of the U.S. Election 
Assistance Commission. The EAC is an independent, bipartisan 
commission created by the Help America Vote Act of 2002, 
otherwise known as HAVA. The EAC is charged with administering 
payments to States and developing guidance to meet HAVA 
requirements, implementing election administration 
improvements, adopting voluntary voting system guidelines, 
accrediting voting system test laboratories and certifying 
voting equipment, and serving as a national clearinghouse and 
resource of information regarding election administration.
    The EAC was originally established to serve as an 
independent, bipartisan agency. However, the EAC is 
increasingly being criticized for a lack of transparency and 
partisan decisionmaking. As Chair of the Elections 
Subcommittee, I too have made my concerns known about the 
apparent politicization of this agency, which is why we are 
having this hearing today.
    Through HAVA, the EAC is required to provide thorough, 
publicly available research on various election administration 
policy initiatives. In particular, HAVA required a study on 
voter fraud and intimidation and a study on the impact of voter 
identification on voter turnout. In fulfilling this duty, the 
EAC delayed the release of the reports and altered the findings 
of the report on voter fraud.
    While both the Democratic and the Republican election 
experts contracted to conduct the research found, quote, 
``widespread but not unanimous agreement that there is little 
polling fraud,'' unquote, the EAC issued a voter fraud and 
intimidation report with alternative findings that claimed the 
pervasiveness of fraud is still open to debate.
    Adding to concern about management at the EAC was its 
refusal for months to release the voter identification report, 
which found that voter identification laws can suppress turnout 
in minority communities.
    Despite its concern with the research methodology, EAC 
eventually released the study in response to intense pressure 
from the media, the public, and Congress. The EAC's recent 
handling of the voter fraud and intimidation and voter 
identification studies have cast a shadow of partisan influence 
over the agency. I do commend the commissioners for formally 
requesting the Office of the Inspector General to review the 
contracting procedures and circumstances surrounding the 
Commission's discussion and deliberation of the two EAC 
projects.
    However, I am disturbed that it took considerable public 
outcry to prompt this request, and eagerly await the IG report. 
It is my hope that in this hearing we will learn more about how 
the EAC makes decisions, the role of senior staff of the agency 
in the process. I am concerned that the advice coming out of 
the commission is inconsistent, and is made in a unilateral 
manner, without the input or official action of the four 
commissioners.
    In addition to this, I would like to explore the role of 
the Department of Justice as a member of the EAC Advisory 
Board. As a result of my request for all correspondence and 
documents related to the two studies of concern, it became 
apparent that the Department of Justice played a significant 
role in the drafting and redrafting of at least the report on 
voter fraud and intimidation. Those 12 boxes of documents, 
which the EAC later publicly released, provide much insight 
into the operations of this agency. The EAC has limited 
authority, in light of its role as a nonpartisan research 
clearinghouse with minimal rulemaking authority. It also has a 
very limited ability to issue advisory opinions on Federal 
election law. These documents lead me to question if any of the 
EAC's actions have gone beyond the EAC's statutory mandate.
    Finally, I wish to explore why Congress has become the last 
person on the EAC call list when it takes action. The EAC has 
failed to inform Congress of important developments relating to 
the EAC's statutory responsibilities, such as accrediting our 
Nation's voting machines. Congress shouldnot learn of the EAC 
action by reading the New York Times.
    The purpose of congressional oversight of the EAC is to 
ensure that our voting system is public and transparent. While 
administrative requirements are time-consuming, they serve a 
greater purpose.
    Unfortunately, I wish I could say that the EAC is the only 
one to blame for the lack of communication with Congress. The 
Committee on House Administration, under the now minority, held 
only three hearings on the EAC since 2005, and only one of 
those was specifically an oversight hearing. We cannot continue 
to allow an agency tasked with overseeing elections to continue 
on without oversight.
    My hope is that this hearing will be the first step in 
working to see that the EAC improves their process and 
management. In 2008, we will be facing a Presidential election, 
and much of the focus of our Nation and Congress will be on the 
EAC. The EAC cannot continue down a path that results in 
reports and recommendations that restrict the right to vote of 
eligible Americans. I am encouraged that over the past few 
months the EAC has become more proactive in reporting its 
activities to Congress. I am pleased that the commissioners are 
publicly acknowledging the problems the agency has faced. 
However, these positive steps are not the end of the road. 
There is much work to be done.
    I thank the EAC for cooperating with this committee, and 
would like to stress not only my concern for the need for 
significant changes in the agency, but the concern of this 
body, and more importantly, the American voters.
    I would now like to invite our Ranking Member, Congressman 
Kevin McCarthy, for any opening statement he may have.
    [The statement of Ms. Lofgren follows:]

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    Mr. McCarthy. I appreciate the Chair for allowing me to 
make an opening statement. I am actually grateful that we are 
having an oversight hearing. And one thing I would like to 
explain during this oversight is for our ability to gather 
information, EAC has a board, has a commission. I would hate 
for this body to ever try to push their will from a political 
basis of where that commission, what they should write, what 
they should do.
    That is why I like the oversight hearings, so we gather 
information, we have a greater understanding of what is going 
on, not one that we push a political agenda.
    Madam Chair, I have some materials that are germane to this 
hearing, and I ask for unanimous consent it be entered into the 
record.
    Ms. Lofgren. We always permit such unanimous consent 
requests, although I am curious what it is. Without objection, 
it is entered.
    [The information follows:]

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    Mr. McCarthy. Well, thank you very much, Madam Chair. And 
if I have any more time, I would like to yield some to the 
former Chair of the committee, Mr. Vern Ehlers.
    Mr. Ehlers. I have no opening statement at this time, but 
am eagerly looking forward to the results of the hearing. I 
agree with you that it is overdue. Thank you.
    Ms. Lofgren. Thank you. Other members I think would prefer 
to put their opening statements in the record.
    Ms. Lofgren. And we will turn now to our first panel. We 
have both the Chair and the Vice Chair of the EAC. Donetta 
Davidson, the EAC Chair, previously served as Colorado 
Secretary of State for 6 years before being appointed to the 
EAC by President Bush in 2005, and has held elected office as 
local county clerk and recorder and director of elections for 
the Colorado Department of State. Ms. Davidson was elected 
president of the National Association of Secretaries of State 
that same year, and is a former president of the National 
Association of State Election Directors.
    Rosemary Rodriguez is our EAC Vice Chair. Ms. Rodriguez 
briefly served as president of the Denver City Council before 
she was appointed in 2007. She was director of Boards and 
Commissions for the Mayor of Denver, Denver city clerk and 
recorder, and acting director of the Denver Election 
Commission, where she supervised city elections. She has been 
active in numerous grass-roots civic and voter advocacy 
organizations, including the Colorado Voter Initiative, where 
she co-chaired a statewide initiative to allow election day 
voter registration, and the Latina Initiative, a project to 
register Latino voters and provide nonpartisan election 
information to the Latino community. We welcome you both.
    We look forward to hearing your statements. Your complete 
statements will be made a part of our official record. We would 
ask that you summarize your statements in 5 minutes. And that 
little machine there on the desk, it has lights. And when the 
yellow light goes on, it means you have only got 1 minute left. 
And when the red light goes on, it means that your time has 
expired. And at that point we would ask you to summarize as 
quickly as you can so that we can get to our next panel.
    So Ms. Davidson, if you would begin, welcome to our 
hearing.

 STATEMENT OF DONETTA DAVIDSON, CHAIR, U.S ELECTION ASSISTANCE 
 COMMISSION; AND ROSEMARY RODRIGUEZ, VICE CHAIR, U.S. ELECTION 
                     ASSISTANCE COMMISSION

    Ms. Davidson. Thank you. Good afternoon, Chair Lofgren and 
Ranking Member McCarthy. My name is Donetta Davidson, and first 
of all, I very proudly would like to introduce my two 
granddaughters, which are visiting D.C. For the very first 
time----
    Ms. Lofgren. How wonderful.
    Ms. Davidson. Brittany and Nicole Berrich. So to get to be 
here, I think it is very special. Thank you.
    Ms. Lofgren. Would they stand up so that we can recognize 
them? It is embarrassing, but you need to be proud to have your 
family here.
    Ms. Davidson. Thank you, Madam Chair. As I said, it is an 
honor to be here, and I really appreciate being able for you to 
give us this opportunity to provide you an update about the 
U.S. Election Assistance Commission.
    Since the 2000 Presidential election, we have seen sweeping 
changes in the way we have conducted elections. The passage of 
the Help America Vote Act expanded opportunities for people 
with disabilities and those with alternative language needs. 
Provisional voting is now required in every State. Thanks to 
statewide voter registration databases, the voter rolls are 
cleaner, more accurate. Modern voting technology has been 
purchased, thanks to the more than $3 billion distributed by 
HAVA.
    HAVA also created the EAC, which opened its doors 
officially in 2004. Since then we have hit the ground running 
and we have not slowed down since. The EAC already has issued 
updates on voting system guidelines, established the Federal 
Government's first voting system test program; we have issued 
two reports on the impact of the national Voter Registration 
Act, a report on military and overseas voters, the 2004 
election day survey, a Spanish glossary, which I brought one, 
on election terms.
    And we are especially proud of our Election Management 
Project, which underneath that we have issued voting systems 
security, testing, certification, ballot preparation, and 
training for poll workers. We got started with $1.2 million in 
2004, and thanks to Congress recognizing our limitations, they 
increased the funding in our subsequent years.
    Also I want to say in public how proud I am of our staff. 
They have done a lot with very little and done it quite well.
    The other study that we have drawn a lot of fire on is our 
election crime report. This report was an initial study of 
voter fraud and voter intimidation. These topics are very 
controversial, and opinions are sharply split down partisan 
lines. We made tough decisions about the data we received from 
the consultant. If statements were not supported by the data, 
we did not adopt the statements in our final report. I know you 
will have questions about this report, and I look forward to 
setting the record straight in a public setting.
    As I said, the EAC had to get started very quickly to meet 
the obligations underneath HAVA. Unfortunately, that meant we 
put our establishing the Commission's policies and procedures 
on the back burner. Our priority was first to get the money to 
the States and help them interpret the laws.
    Now we have work to be done initially internally. As the 
Chair, I have already made some sweeping changes. Bipartisan 
committees to oversee research and all EAC operations. Contract 
procurement has been outsourced toanother entity. And I have 
asked, along with the other commissioners, for the Inspector General to 
do a review of our procedures and policies. We will take their 
recommendations very seriously, and we will make the necessary changes. 
No mistake, there is always room for improvement, but we have produced 
results and we have a great potential to continue to help election 
officials throughout the Nation. I do look forward to your questions.
    Ms. Lofgren. Thank you very much for your testimony and 
also for staying with our 5-minute rule. And now we would turn 
to you, Ms. Rodriguez. Welcome.
    Ms. Rodriguez. Thank you, Madam Chairwoman, and Mr. 
McCarthy for inviting us here today.
    Ms. Lofgren. I am not sure your microphone is on. There is 
a little button there. There you go.

                STATEMENT OF ROSEMARY RODRIGUEZ

    Ms. Rodriguez. Thank you, Madam Chair, and Ranking Member 
McCarthy for inviting me to give comments today. As a new 
member of the Election Assistance Commission, I believe it is 
an important and necessary agency. Our primary goal must be to 
ensure that every eligible American has the best chance to cast 
a ballot and see it counted. While we must work with election 
officials to ensure that they have the tools to do their job, 
our first allegiance must always be to the voters. Conflicts 
between these interests are exceedingly rare, but when an issue 
arises that creates tension, we have a duty to come down on the 
side of the voter.
    I emphasize that the EAC has accomplished much since 
Congress enabled it, and I commend current commissioners and 
those who preceded me for their diligence and hard work. But to 
fulfill our mandates, we need to do more.
    First, the Commission must become fully transparent and 
accountable. Any hint of secrecy, political motivation, or 
political litmus in those who administer elections is anathema 
to all Americans. Therefore, the EAC must disavow any 
procedures that suggest a hidden agenda and invite cynicism. At 
my first commission meeting, I recommended that the EAC conduct 
staff briefings and make policy decisions in sunshine, limiting 
the tally vote to only the most routine decisions. And as long 
as I am a commissioner, I will continue to urge it to adopt 
these and other policies and procedures, and to memorialize 
them in written documents that are available to the public. 
Only then can the public see the decisions the EAC is making, 
understand the reasons for them, and know they are being made 
to benefit the election process for voters, rather than for 
partisan gain.
    Second, the Commission must become transparent and 
accountable in its accounting procedures and research 
protocols. We have already begun this, and my Chair did discuss 
her request to the Inspector General to conduct a thorough 
review. I mentioned this review specifically because I know 
that our handling of the research projects created confusion 
and speculation. We should accept well-founded criticism on 
their handling, and take steps to ensure that the errors we 
made do not happen again. We expect the IG's report soon, and I 
anticipate that the Commission will make its recommendations 
the keystone of our future work plan.
    Finally, we should better inform our oversight committees 
and all interested Members of Congress of our activities.
    Let me briefly mention two other items. States are 
establishing statewide voter databases required by HAVA. I am 
hopeful that when they are completed we will be able to say 
with confidence to you and to the American people that they are 
accurate and efficient. That is not a foregone conclusion. The 
databases are difficult to build and maintain, and you may want 
to invite us back to report on their progress.
    Congressional staff members have asked about provisional 
ballots. The Congress authorized the use of the provisional 
ballot to make sure that voters were provided with every 
opportunity that their ballot would count. They should never be 
used as a tool to disenfranchise voters, and I believe we 
should continually monitor their usage.
    I am having a series of meetings with voters and voter 
advocates in anticipation of the 2008 election, and it will be 
my goal to make sure that the issues they identify are those 
considered and addressed by the EAC as the country prepares for 
2008.
    In conclusion, the EAC commissioners and staff want to see 
the promise of HAVA fulfilled. We want voters in America to be 
confident in equipment that we certify. We want election 
officials to adopt our guidelines because they are thorough and 
reasonable. We want the States to implement voter databases 
that guarantee voter access, not impede it. And finally, we 
want to see Americans believe and trust the results of our 
elections. Thank you.
    [The statement of Ms. Davidson and Ms. Rodriguez follows:]

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    Ms. Lofgren. Thank you both very much for that testimony. 
We will now engage in questions that we may have under the 5-
minute rule, and I am going to turn first to our Ranking 
Member, Mr. McCarthy, for any questions he may have.
    Mr. McCarthy. I would gladly let you go first.
    Ms. Lofgren. Trying to be bipartisan and gracious here. You 
want to stop me?
    Mr. McCarthy. Thank you, Chairwoman. To Chairwoman 
Davidson, can you explain exactly what kind of research Ms. 
Wang and Mr. Serebrov were conducted to do for the EAC?
    Ms. Davidson. Thank you. The research that was conducted, 
we asked in the contract for two major things. Definitely it is 
a very important subject, and we want to make sure that it is 
addressed right. We asked for a definition of voter fraud and 
voter intimidation, because they both, if there is a crime, 
voter intimidation is just as important as voter fraud. So we 
wanted to make sure that we had a definition that included both 
of those subjects.
    The other thing that we really wanted is a road map of how 
we proceed forward, because we feel that in getting a 
determination of what is out there, the data will support 
whatever is there, because we won't have to make any 
conclusions. The data will provide that for us. We really 
feel--and we took their suggestions.
    There was a couple, three really, is surveilling the States 
on to find out how many complaints have been filed, 
investigated and resolved. Also do the same with election crime 
units and also law enforcements, because we feel if we have 
good data from all of those individuals, as I said, the 
documentation will support any type of problems that is there. 
We won't have to make any conclusions at the EAC. The data can 
do that for the report.
    Mr. McCarthy. Now, there has been some talk out there or 
discussion about the voter fraud and voter intimidation study 
being partisan. Knowing your Commission is bipartisan, 
Republicans and Democrats, how did the Republicans and 
Democrats vote when it came to adopting the final fraud report? 
What was the vote?
    Ms. Davidson. The fraud report was unanimous, and to issue 
the fraud report as has been issued, and that you can see; it 
was a unanimous decision by all three. And it was done at a 
public meeting in December.
    Mr. McCarthy. So Republicans and Democrats all voted 
unanimously for it?
    Ms. Davidson. That is correct.
    Mr. McCarthy. Okay. The EAC has been accused of political 
motivation when it adopted and issued its fraud report. If you 
got that same draft delivered by the same consultants today 
would you vote to accept it?
    Ms. Davidson. Absolutely. I would vote to accept the one 
that we did.
    Mr. McCarthy. Exactly what you did prior?
    Ms. Davidson. That is right.
    Mr. McCarthy. Okay. Voter fraud is a highly partisan issue. 
Did you or your staff try to manipulate the Wang or Serebrov 
studies so they would have a partisan slant?
    Ms. Davidson. Absolutely not.
    Mr. McCarthy. What are some of--you talked of some of the 
changes you have made. Maybe you can elaborate, because knowing 
the birth of the EAC and where we have come, and the 
bipartisanship and continual improvement, what do you think are 
some of the improvements that you have made that we should 
focus on?
    Ms. Davidson. We are evolving. And since the last reports 
that you have actually--you know, the controversy in the 
December report--we have started putting out all of the reports 
on a virtual Web site to our committees, the Standard Board, 
and the Advisory Board for them to give comments to. And that 
is public information. At the same time, anybody can review 
that. It is put in a register and made aware that--the Federal 
Register--and made aware that we will be taking comments. So we 
hopefully are far more transparent.
    Our contracts, before they are finalized and the 
individuals are paid, there are comments made, and our 
contractors are expected to look at those comments and come 
back. So we are trying to be far more transparent in the 
processes we are doing in the future. And as we move forward, 
obviously we feel that is very important.
    Mr. McCarthy. Just one last follow-up question. I was told 
that someone heard Ms. Wang on the radio yesterday, that no one 
from the EAC contacted her after she submitted her work. 
According to the contract she signed, was the EAC obligated to 
get her approval or input before issuing the final report?
    Ms. Davidson. You know, I think if my memory serves me 
correct, there was e-mails between our staff and Ms. Wang on 
the issue and before the report was issued. I think if you go 
back and review some of those documentations, you will find 
that there was conversation there with Ms. Wang on the issue. I 
don't have that exactly in front of me, but I would be more 
than willing to provide you those documentations, if you would, 
like later on.
    Mr. McCarthy. Thank you very much. Madam Chair, I yield 
back my time.
    Ms. Lofgren. Thank you. I will proceed at this point under 
my 5 minutes. I have questions, really, that are procedural 
about how the Commission conducts its business and the 
Administrative Procedures Act, and how familiar the 
commissioners are. It is my understanding under the 
Administrative Procedures Act that in a case such as thevoter 
fraud and intimidation report, that the administrative agency is not at 
liberty to rewrite it. They are at liberty to provide information in 
disagreement to the report that has been contracted. Is that your--how 
familiar are each of you and the other commissioners with the 
Administrative Procedures Act?
    Ms. Davidson. I can start, and then I will--probably we 
are--we do rely on our staff a great deal. We rely on our 
attorneys in the office. Under the Administrative Procedures 
Act, HAVA does require some of our initial things that we do 
that we actually, some of our studies, if it is guidelines, 
that we actually have to go back to our Standards Board and 
Advisory Board, and that is not in the Administrative 
Procedures Act. It goes a step beyond.
    Ms. Lofgren. Yes, but in this case that was not within that 
penumbra.
    Ms. Davidson. And we have only done one guideline in our 
agency. But I would say we always know that we have to put 
everything in the Federal Register. I think that we are pretty 
familiar with it, but to be honest with you, I wouldn't say 
that I am perfect.
    Ms. Rodriguez. May I, Madam Chair?
    Ms. Lofgren. Of course.
    Ms. Rodriguez. I believe that we would be unanimous when we 
said that we are not fully embracing all of the things that we 
should be doing, all of the steps that we should be taking with 
respect to several layers of Federal regulations.
    Ms. Lofgren. Okay.
    Ms. Rodriguez. And I think we are prepared to do that.
    Ms. Lofgren. I think that is good news. I have made some 
criticisms known, but I mean the point of this hearing is to 
see how we can improve; correct?
    I want to ask a question. I serve on the House Judiciary 
Committee along with Mr. Davis, and we have been reviewing a 
great volume of material relative to the Department of Justice 
and its various activities. And in reviewing from that 
committee, but also all of the e-mails, it does appear that the 
Department of Justice took a very strong role in reviewing and 
editing EAC public reports.
    Is it the EAC policy to have Department of Justice 
officials review, comment on, and exert editorial control over 
research material and drafts of EAC reports?
    Ms. Davidson. The Justice Department is, according to 
section, I believe it is 214 of HAVA, has two members that 
serve on our Advisory Board. And so therefore those 
individuals, as well as advocacy groups, election officials, 
all give comments to us.
    There was a briefing that took place at the--I believe it 
was a May meeting. And so there was comments taken at that time 
from everybody. And I, you know, personally, I want you to know 
that I already met with them twice when I first got here.
    I had a meeting with Hans von Spakovsky and Mr. Tanner at 
lunch with Ray Martinez, and it was when I first was appointed. 
The second time was a lunch in February, I believe it was, with 
Mr. Von Spakovsky. So I have not talked with them other than 
two times. So I really feel there wasn't any pressure at all 
from their agency. And I would say that just through the 
committee is the only thing that they had ever done.
    Ms. Lofgren. Well, I just want to say the e-mails certainly 
show, not your personal participation, but--and I want to make 
that clear. But there was really--the Department of Justice was 
playing a very strong role in what ordinarily you would think 
the commissioners themselves would be approving. And that is 
one question I had.
    I want to let Ms. Rodriguez also answer, because my time is 
almost up. And I will turn to the other members.
    Ms. Rodriguez. I wasn't here then, but----
    Ms. Lofgren. That is okay.
    Ms. Rodriguez. But in reviewing the documents, it does seem 
to me there is quite a bit of interaction. A lot of it is 
appropriate, because they do serve on our advisory boards. And 
I would wonder if that is appropriate, because they are also 
the agency that conducts our enforcement actions. So we, again, 
it is one of the things we need to talk about seriously within 
the agency.
    Ms. Lofgren. Okay. I am going to turn now to Mr. Ehlers for 
his 5 minutes.
    Mr. Ehlers. Thank you, Madam Chair. First of all, I wanted 
to submit my opening statement into the record, as I said 
earlier.
    Ms. Lofgren. Without objection.
    [The statement of Mr. Ehlers follows:]

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    Mr. Ehlers. I just want to highlight one point on that, in 
that we had invited one of the top, if not the top election 
officials in the Nation, here as one of our witnesses. Mr. 
Chris Thomas of Michigan, highly regarded, has been the head of 
their agency. And the committee said we are only entitled to 
one minority witness, which I know is customary in all 
committees other than this committee, but has not been the 
custom here.
    So I just wanted to protest. He did submit his written 
testimony, but we have always had the camaraderie, since this 
is a small committee, to allow the minority extra witnesses. 
And I am disappointed that was not permitted this time. I just 
wanted to get it in the record to say that, and the rest can go 
in the record.
    [The statement of Mr. Thomas follows:]

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    Mr. Ehlers. I appreciate the EAC. I think it is one of the 
better things we did. I would in some instances wish you had 
more authority in terms of getting HAVA working right. And I 
know when we put this together a few years ago it was such an 
intricate and delicate dance between all the parties, the local 
elected officials, State elected officials, manufacturers, 
users, every county, city clerk in the Nation. I think we came 
out with a decent product. But I wish we had--well, actually I 
tried to do it at the time, I just was outvoted, but we should 
have done a much better job of establishing standards first, 
giving everyone a chance to be involved in that, and then 
giving the manufacturers a chance to really meet the standards. 
I think we could have avoided most of the difficulties that 
have developed, and I wish the EAC, and I know the other 
advisory groups, had been able to play a better role in that. 
That is water over the dam. I think things are beginning to 
work smoothly now, and I appreciate that.
    I am concerned about the reports that were referred to. 
From everything I hear, that it was appropriate for you not to 
put your stamp on them. And I guess in the next panel we will 
have time to get into more detail on that. But since you are a 
new agency, I urge you to exercise extreme caution, foresight, 
and thoughtfulness in how you approach these issues.
    I don't know the details of how the report was ordered, how 
it was structured, how it was supervised. But from everything I 
have heard, it is a very poor sample of a report. And I just 
want to give each of you an opportunity to respond to my 
impressions. If I am wrong, let me know. If I am right, I would 
appreciate affirmation.
    Ms. Davidson. I can start. You know, I believe there was a 
lot of good things in the report. It gave us a road map as to 
what we really, really want to go forward. We just felt like 
when interviews of 24 individuals that was taken, that that 
wasn't enough to make a determination and put that into place. 
In my opinion, you have got to really do a deep study before 
you can make a statement of whether there is voter fraud or 
voter intimidation; and whether 24 people, we felt was just not 
enough to place our findings on and make a determination on.
    But there are good things. There is a way to move forward. 
And we think that is very important is how we move forward. So 
as I said earlier, the data stands for itself. And that is what 
we wanted to do. We feel that voter intimidation, anything that 
is a crime, voter intimidation, voter fraud, definitely needs 
to be reviewed, because we need to make people aware of what 
the problems are, and Congress, own States, everything. I think 
it is for the best the Democrats, the Republicans, the voters, 
that they feel that there is confidence and that their vote is 
counted and they are not intimidated from the polls.
    So I really think that as we move forward we will see a 
great deal more. But 24 people is not enough to make a 
determination on is our feeling.
    Mr. Ehlers. Well, you need more than that. Also I am 
curious whether any Members of Congress were asked to recommend 
individuals who should be interviewed or if any Members of 
Congress were asked to submit samples or information about 
dishonest election practices that they were aware of in their 
community, their State, et cetera, because most of us have been 
contacted quite a bit and can give examples.
    Ms. Davidson. I don't believe they were, but in the future, 
obviously, as we move forward, knowing that Congress is 
interested, as well as election officials, maybe that is 
another area we should add to our survey is to see how Congress 
Members--because in reading the Chairwoman's comments, 
obviously she is very concerned about in her area of issues. 
And so obviously the more input we have from everybody, the 
better off we are.
    Ms. Lofgren. The gentleman's time has expired. I would turn 
now to the gentleman from Texas, Mr. Gonzalez.
    Mr. Gonzalez. Thank you very much, Madam Chair, and welcome 
to Chairwoman Davidson and Vice Chairwoman Rodriguez.And I 
appreciate the meeting that we had in my office a month or two ago. 
Time really does fly when you are having so much fun.
    But I do have a couple questions. The first one is to the 
Chairwoman. You indicated that Mr. Spakovsky from DOJ is a 
member of an advisory committee of sorts. Is that right?
    Ms. Davidson. He was at the time that he was with the 
Justice Department. He no longer is serving there.
    Mr. Gonzalez. But I am talking the time in question here. 
How many members of this Advisory Committee or Board do you 
have?
    Ms. Davidson. There is--I was going to say 48, but 47.
    Mr. Gonzalez. And how many submitted comments or had some 
input in the nature that Mr. Spakovsky had regarding voter 
fraud allegations and the necessity to maybe readdress it in 
the draft report?
    Ms. Davidson. There was even a resolution that was done at 
that May meeting concerning the issues. All of the 
commissioners were present at that meeting, and people came up 
to us individually. Submitted in writing, I don't know how many 
submitted anything in writing.
    We also had an Advisory Board meeting in February, and 
there was discussion about the report at that time, and a 
resolution was proposed to make the report open. This was after 
our fraud report was adopted, and then they wanted to make the 
initial report----
    Mr. Gonzalez. I think I am trying to get at, at that point 
in time who was the most active member of this particular 
Advisory Committee that communicated with you to a greater 
degree than anyone else, whether it was by e-mail, letter, 
discussions? Would it have been Mr. Spakovsky? I always mess up 
his name, but I am somewhat familiar with him. I remember him 
in the Department of Justice and some of the experiences the 
Texas delegation had.
    Ms. Davidson. Personally, the election officials are the 
ones that I talked to more than anybody else.
    Mr. Gonzalez. In January 2007, and while he was serving, it 
says here--this is an article by Jerry Ebert--one final note 
that is set forth in the EAC documents, while serving at the 
FEC, von Spakovsky wrote an e-mail to Commissioner Donetta 
Davidson in January 2007, enclosing documents that she might be 
able to use on voter ID. One was an article that he wrote for 
the Federalist Society, entitled ``Increasing the Security of 
Elections: The Effect of Identification Requirements on Turnout 
of Minority Voters.''
    On the first page of the article he wrote, quote, ``Voter 
fraud is well documented and existing in the United States.'' 
In the next paragraph he writes, ``Investigations in Milwaukee, 
Wisconsin, found thousands of fraudulent and suspicious votes 
in that city in a State where John Kerry won by only 11,394 
votes in the 2004 election,'' end quote.
    And who among the authorities cited by von Spakovsky for 
those two statements? His own law journal article that he 
published under the name Publius. That is why we are so 
suspicious of the process.
    I also would remind individuals that it wasn't that long 
ago, in the spring, when all these allegations were coming up 
in the context of the firings of the United States Attorneys 
General. One of those that received some complaints, obviously 
was not removed, disciplined or whatever, was the U.S. Attorney 
from Milwaukee. And this individual went on record and 
basically says that he played down the voter fraud complaints, 
saying that he and a local Democratic prosecutor joined in 
investigating such allegations, and he says we tried to address 
it in a serious and detailed way, but in a way that did not 
impact any election. I think we did that. It has been 
addressed.
    I am just saying that it seems like this individual had an 
inordinate amount of contact with the Commission, had an 
inordinate amount of influence in the final draft. And it 
definitely was redrafted. I mean there is no doubt. I think we 
have been able to compare final draft versus the draft language 
when it came to voter fraud. That is our concern. I mean the 
whole debate over the firings of those attorneys general really 
does revolve around a particular subject, and that is voter 
fraud. So we see this rearing its head in every venue. And we 
just don't want it to impact what your work should be.
    And one last aspect of voter fraud. I always thought of 
this of people that shouldn't be voting. Do you have anything 
that might gauge the number of multiple voting registrants, 
people that may be registered in more than one State and get to 
vote in both States? Because I think we had something recently.
    Ms. Lofgren. The gentleman's time has expired, and by 
unanimous consent an additional 30 seconds is granted.
    Mr. Gonzalez. Just to respond. I am just curious about 
that.
    Ms. Davidson. I do not have any data. I can tell you it 
would take research to get you that. But on the other hand, 
back to the conversations with Mr. von Spakovsky, definitely, 
as you see, we adopted the voter fraud in December. Those were 
given to me in February of this last year. It was after. But at 
the end of the day, no matter who said what to me or gave me 
any type of documentation, I make my own decisions. I firmly 
want to state that and make it very clear. I make my decisions 
at the end of the day. Right, wrong, indifferent, nobody has 
that control.
    Mr. Gonzalez. Thank you very much.
    Ms. Lofgren. The gentleman from Alabama, Mr. Davis.
    Mr. Davis of Alabama. Thank you, Madam Chairwoman. Ms. 
Davidson, let me perhaps put in context for you some of the 
frustration that my friend from Texas just displayed, because I 
feel a lot of it too. Ms. Lofgren mentioned that she and I--the 
Chairwoman mentioned that she and I serve on the Judiciary 
Committee together. And at this point there is a very familiar 
feel to some of the newspaper articles that I read in preparing 
for today's hearing. There is a very familiar feel as I listen 
to some of these questions. The Chairwoman and I have gone 
through several months now of hearings in committee about U.S. 
Attorneys who were pressured, I think that is the best word, 
``pressured'' to bring voter fraud cases against Democratic 
voting activists.
    The Chairwoman and I have heard testimony about the former 
U.S. Attorney in part of Missouri, Mr. Graves, who was 
apparently terminated because he was not zealous enough or 
aggressive enough in bringing voter fraud cases against 
activists associated with the Democratic Party.
    We have heard testimony about the former U.S. Attorney in 
Seattle, Washington, who at one point was such a rising star he 
was offered a Federal district judgeship, but who was 
terminated because he wasn't aggressive enough in bringing 
voter fraud cases against Democratic activists.
    I will put it in context of another matter Mr. Gonzalez is 
very familiar with: the controversy over the redistricting, the 
very unusual mid-decade redistricting of the congressional 
lines in Texas. A redistricting by the admission of all parties 
involved occurred because some felt there weren't enough 
Republicans in Congress from Texas.
    Career lawyers of the Department of Justice reached a 
conclusion that there were enormous problems under the Voting 
Rights Act with the redistricting. Political appointees, 
possibly including this individual, Mr. von Spakovsky, 
disagreed with the judgment of the career lawyers, superimposed 
their own opinion.
    I am from Alabama, next to Georgia. Georgia passed a 
draconian voter ID law, one of the most draconian and most 
limiting voter ID laws in the country. My State allows 22 forms 
of voter. ID Georgia allowed three, and required people pay 
some kind of a fee to get an ID if they didn't have one.
    Career lawyers at the Department of Justice looked at those 
requirements, felt that they were violative of the Voting 
Rights Act. Political appointees at the Department of Justice 
reached a different conclusion.
    So when you weave all of these things together, and I 
certainly accept your good faith and appreciate the good work 
that you do, but when you weave all those events together you 
have a pattern of a very aggressive ideological administration 
that has a particular mindset about voter fraud. And that would 
be okay if it was the political arm of the White House, in my 
opinion.
    You know, if it was the Office of Political Affairs or the 
RNC, I would just take that as one of the many disagreements we 
have. But when it is the Department of Justice, that is 
bothersome to me.
    And one other contextual point you should be aware of. Same 
committee the Chairwoman and I serve on, Judiciary, had an 
oversight hearing involving the civil rights division at the 
Department of Justice. The chief deputy to the civil rights 
chief testified, and I asked her, how many voter intimidation 
cases have been brought by the Department of Justice in the 
last 6 years? And her answer was she did not know of a single 
one.
    Now, we can quibble about the accuracy of any survey or the 
methodology of any survey that was employed. I don't think that 
any serious person in this room or any other room would assert 
that there has been no instance of voter intimidation in the 
United States in the last 6 years, or that there have been no 
credible allegations of voter intimidation made to the 
Department of Justice.
    So what I would, I suppose, ask you to comment on is the 
fact that for whatever reason voter intimidation, efforts to 
prevent people from exercising the right to vote does not seem 
to be a particular priority. And second of all--of the 
Department of Justice.
    And second of all, can you comment on the fact that voter 
fraud appears to be something of a political weapon in the 
hands of this administration?
    Ms. Davidson. I will try to go back to the experience that 
I have from the State of Colorado. I will tell you any type of 
voter crime is hard to get a conviction on. Doesn't matter what 
kind. When we take it to the district attorneys in the State of 
Colorado, whether it was even a voter registration voter crime, 
people voting more than once, somebody at the intimidation, 
whatever the efforts were, they always told us that they were 
far too busy with crimes of murders and issues like that to 
take on voter registration or voter--voting twice or 
intimidation.
    Mr. Davis of Alabama. Let me stop you on that point, 
though. I understand your experience in Colorado, but frankly 
the experience of a number of these U.S. Attorneys is that the 
Department of Justice was very interested in cases around voter 
fraud, that they made it a priority. In fact, the Attorney 
General has testified to our Judiciary Committee that these 
cases, however you and I may rank them on the scale, were 
extremely important.
    There was not that same sensitivity around voter 
intimidation. There appears to be a very high, I would submit, 
unwarranted level of engagement on the part of theDepartment of 
Justice around voter fraud issues. And that, Ms. Chairwoman, if I am 
allowed 10 seconds, I would say that leads to my conclusion that voter 
fraud appears to be to some in this administration a political weapon 
instead of a legitimate assessment of whether elements of a crime have 
been committed.
    Ms. Lofgren. The gentleman's time has expired. And we have 
actually, each one of us had our chance to ask our questions or 
make our statements. So we will thank you again for being here. 
And if we have any additional questions we will keep the record 
open so any member, through the Chair, can provide questions to 
you. And we would ask that they be responded to as promptly as 
possible. We will now ask our second--yes.
    Ms. Davidson. May I ask also can we submit additional 
information to you at any time?
    Ms. Lofgren. Of course. We will keep the record, under the 
rules, open for 5 days.
    Ms. Davidson. Okay.
    Ms. Lofgren. So please get whatever information you wish us 
to see, if you can, within that time frame.
    Ms. Davidson. Thank you.
    Ms. Lofgren. We will call our next panel forward if we 
could, please. Let me introduce our three panelists. First we 
have Jon Greenbaum, the director of the Voting Rights Project 
for the Lawyers' Committee for Civil Rights Under Law. Prior to 
joining the Lawyers' Committee, Mr. Greenbaum was a trial 
attorney in the voting section of the United States Department 
of Justice for 7 years, as well as a litigation associate in 
the Los Angeles office of the international law firm Dewey 
Ballantine. Mr. Greenbaum graduated in 1989 from the University 
of California at Berkeley, with a bachelor of arts degree in 
legal studies and history, and he received his law degree from 
the University of California at Los Angeles in 1993.
    We have Professor David Super, who is a professor of 
administrative law from the University of Maryland School of 
Law. Prior to teaching at the University of Maryland, Mr. Super 
taught administrative law as a visiting professor at Washington 
& Lee University, as well as Yale Law School. In addition, he 
taught administrative law as a visiting lecturer or adjunct 
professor at Columbia Law School, Georgetown University Law 
Center, Howard University Law School, and the University of 
Pennsylvania Law School, and Princeton University. Professor 
Super graduated from Princeton University magna cum laude in 
1980, and in 1983 graduated from Harvard Law School.
    And finally, we have Professor Robert Montjoy. Dr. Robert 
Montjoy teaches political science at the University of New 
Orleans. He specializes in electoral policy and administration, 
and frequently his academic research appears in books and in a 
variety of journals, including Public Administration Review, 
Policy Studies Review, Publius, and Public Opinion Quarterly. 
Dr. Montjoy also is a current member of the board of directors 
of the Elections Center, the largest organization of election 
officials in the United States, and a past member of the 
National Advisory Board for the Manufacturing Extension 
Partnership Program of the National Institute of Standards and 
Technology.
    We welcome the three of you. We, as with our prior panel, 
we ask that you summarize your written testimony in 5 minutes. 
Your full statement will be part of the official record.

 STATEMENTS OF JON GREENBAUM, VOTING RIGHTS PROJECT DIRECTOR, 
  LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW; DAVID SUPER, 
  PROFESSOR OF LAW, UNIVERSITY OF MARYLAND SCHOOL OF LAW; AND 
      ROBERT MONTJOY, PROFESSOR, UNIVERSITY OF NEW ORLEANS

    Ms. Lofgren. And I would turn first to Mr. Greenbaum for 
your statement.

                   STATEMENT OF JON GREENBAUM

    Mr. Greenbaum. I want to begin by thanking Chair Lofgren, 
Ranking Member McCarthy, and the members of the Subcommittee on 
Elections for convening this oversight hearing of the United 
States Election Assistance Commission, and inviting myself and 
others to testify.
    As we have been reminded over the past several months, 
congressional oversight can serve an important role by exposing 
facts about government practices, and can serve as a catalyst 
for changing those practices when they need to be changed. I 
hope and expect that today's hearing will have this impact.
    My organization, the Lawyers' Committee for Civil Rights 
Under Law, has been at the forefront of protecting and 
enhancing the right to vote since President John Kennedy and 
Attorney General Robert Kennedy convened the meeting of lawyers 
that led to our creation in 1963.
    Consistent with our work, we have participated in and 
closely observed the EAC since it began operating in December 
of 2003. My executive director, Barbara Arnwine, serves on the 
EAC board of advisors, and I participated on the working group 
for the voter fraud and intimidation study that I will discuss 
below.
    The EAC has in large measure failed to fill its core 
mission to protect voters' rights. Our greatest concerns about 
the EAC are its lack of transparency and standards for making 
decisions and its failure to accept the analyses of expert 
consultants it has hired at taxpayer dollars when those 
analyses clash with the views of some EAC commissioners and 
staff. These issues have undermined the credibility of the EAC 
in the eyes of many.
    Because the EAC is a relatively new and small agency, we 
hope that this hearing, other ongoing congressional inquiries, 
and internal and external scrutiny will have the effect of 
transforming the EAC into an effective agency whose work is 
respected.
    Two dramatic examples of how the EAC has failed the 
American people are its handling of the voter intimidation and 
fraud study, and the voter identification study. As part of the 
Help America Vote Act, Congress required the EAC to commission 
these studies. For both studies, the EAC chose and hired 
consultants to perform the studies, and the consultants 
provided their work to the EAC in the summer of 2006. Even 
though the studies contained facts pertinent to the debate in 
the House of Representatives last fall over whether photo 
identification for voters should be required for Federal 
elections, namely, the studies showed there is little evidence 
of polling-place fraud by voters, and that voter identification 
disproportionately affects certain racial and ethnic groups. 
The EAC was silent about these studies for several months 
afterward.
    With respect to the voter intimidation and voter fraud 
study, EAC staff materially changed the study without the input 
of the consultants, and only released the consultants' draft 
after months of criticism.
    With respect to the voter identification study, the EAC 
voted not to adopt a study that cost taxpayers more than half a 
million dollars. I was particularly disappointed about the 
voter intimidation and voter fraud study because of my 
involvement. For that study, the EAC chose two consultants, one 
with a conservative background, one with a liberal background, 
to ensure balance. In consultation with the EAC's research 
director, the consultants sought to do a comprehensive review 
of the case law and literature on the subject, and interviewed 
more than 20 mutually agreed-upon voting experts. Both 
consultants participated in all interviews. The consultants 
summarized the results of their research and provided that 
summary, as well as all of the research, to a mutually agreed-
upon and undeniably balanced working group.
    The working group met in May 2006, and we discussed the 
consultants' research and analysis, as well as suggested 
avenues of research for future studies on the subject. One of 
the key facts the consultants determined, based on all their 
research, was that there was little evidence of voter fraud at 
the polling place. Only one member of the working group, 
Indiana Secretary of State Todd Rokita, whose State had enacted 
a government-issued photo identification law for voters the 
year before, had a serious objection to that finding. And he 
was not able to provide evidence backing his position.
    When the EAC issued the final study in December 2006, I was 
shocked to see that the study had now concluded that there is a 
great deal of debate on the pervasiveness of fraud in 
elections, as well as what constitutes the most common acts of 
fraud or intimidation. E-mails have revealed that consultants 
submitted their version in July 2006, and without any input 
from the consultants, EAC staff essentially rewrote the study, 
materially changed in several respects that I can discuss in 
response to questions. E-mails have also revealed that during 
the time of the rewrite, EAC staff agreed to permit political 
appointees and career staff of the Department of Justice to 
review and comment on the rewrite.
    The right to vote is our most fundamental right, as it is 
preservative of all rights. By failing to conduct its business 
in a clear and open manner, and undermining the analysis of 
experts it has hired with taxpayer dollars because it disagrees 
with their conclusions, the EAC has failed in its mandate as a 
governmental agency to protect that fundamental right.
    Despite the failure to live up to the promise that Congress 
envisioned for the EAC, there is time to turn the EAC around 
and put it to work on behalf of all eligible American voters. I 
look forward to providing you with any assistance I can to help 
achieve that.
    Ms. Lofgren. Thank you very much for that testimony.
    [The statement of Mr. Greenbaum follows:]

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                    STATEMENT OF DAVID SUPER

    Mr. Super. Thank you very much, Chairman Lofgren, 
Representative McCarthy, and members of the subcommittee. As 
you noted, I teach administrative law, and that will be the 
focus of my comments.
    As an administrative law professor, I study many 
administrative agencies, and as a new agency I think the EAC 
can learn a great deal from other agencies' experience, in 
particular as an agency that is new, that does not have an 
established record or reputation, and one that is dealing with 
some of the most sensitive and partisan, as well as most 
important issues before the country; that the EAC would do well 
to follow those agencies that have made a priority, perhaps 
even an obsession, about transparency and openness. And there 
are a number of specific things that I would urge that the EAC 
do.
    First, the research activities, because they are such an 
important part of what the EAC does, should be wholly 
transparent. The statute in this regard I think is very 
helpful. Section 207(2) of HAVA specifically directs that any 
report that is commissioned by EAC be provided to Congress and 
the President. It does not provide any authority for editing 
that. Naturally the EAC is free to comment on those reports, to 
criticize them. If they wish to itemize the portions of those 
reports that they think are weak, that is entirely appropriate, 
indeed consistent with the mission of promoting a full 
dialogue. But the statute I think is very clear that that is 
not something that can be done. When agencies in 
administrations of either party in the past have attempted to 
edit research that they have received, the consequences have 
often been very severe. The research itself becomes devalued, 
as it is regarded as being tainted by partisan influence and 
other studies completely unconnected with that incident become 
suspect because the suspicion is that the agency wouldn't have 
let it through had it not met the agency's political litmus 
test. And again I am not referring to administrations of either 
party. Alas, administrations of both parties have made that 
mistake.
    The sensible thing to do when you get a bad report, I lack 
the expertise to know whether the ones we are discussing here 
are good or bad, but if you do get a report you think is bad, 
you should release it and release your own statement as to what 
you want done. The EAC has authority and resources to contract 
for follow-up reports and research that perhaps can get at some 
of the things that they might be concerned about.
    Secondly, the agency's research contracting needs to be 
beyond reproach. One possibility is to hire researchers who 
have long records and are regarded as nonpartisan; another 
possibility is to pursue bipartisan teams. My understanding is 
the EAC at times has gone in either of those directions. What 
clearly should not be appropriate is to allow officials that 
are connected with any partisan organization, be it this 
Congress in either side of the aisle or an administration, 
which inevitably is of one party or the other, to have an 
influence in or criticism of the selection of researchers or 
the product that they issue.
    I think it is unfortunate that political officials of the 
Department of Justice were serving on the board. As I read the 
statute, it names a number of sorts of officials that are 
partisan, such as State legislators or Governors. And in each 
of those areas it calls for two of them, the obvious intent 
being one be a Democrat and one be a Republican. There are only 
three officials listed in that statute that are not identified 
by partisan status, and those are all career officials of the 
Federal Government who were thought to be nonpartisan. It is 
unfortunate that one or more of those slots may have been 
assumed by a partisan appointee, and the commission should have 
endeavored to prevent that and certainly should have endeavored 
to keep such persons from influencing its research. Those 
boards have important roles to play, but screening the agency's 
research does not appear from my reading of the statute to be 
one of them.
    Finally, it is very important to follow the statutory 
procedures for decisions. Among groups of friends consensus is 
obviously better than voting. But in public agencies the 
statute is emphatically clear that there must be three votes 
for all actions of the agency, and that there must be public 
meetings at which those votes take place. If anything happened 
of any consequence in the name of the agency, there should be a 
record of a public meeting and at least three votes to support 
it.
    Thank you very much.
    [The statement of Mr. Super follows:]

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    The Chairwoman. Thank you very much, Professor. And now we 
turn to Professor Montjoy. Welcome.

                  STATEMENT OF ROBERT MONTJOY

    Mr. Montjoy. Thank you very much, Chairman Lofgren, Ranking 
Member McCarthy, and other members of the committee. I 
appreciate you having me here, and I want to talk to you about 
the importance of the Election Assistance Commission and 
particularly its information role. I am a professor of 
political science at the University of New Orleans. I am 
Director of the Master Public Administration Program there. I 
am also a registered Democrat, but I try to take my party hat 
off when I study election administration.
    Growing up in the South before the passage of the 1965 
Voting Rights Act, I saw the effects of fraud and intimidation 
on voters. And as a result I became interested in the fair and 
accurate administration of elections, a subject of which I have 
pursued throughout my career. Most of my experience in 
elections comes from Alabama, where I spent 25 years teaching 
and doing outreach, statewide outreach, at Auburn University.
    My message today is simple. The U.S. election system is 
under great stress because of increased complexity and rapid 
change. A change in one part can have unanticipated 
consequences in another. The EAC plays an essential role in 
providing vital information for that system. It has built and 
must continue to build expertise that Congress and policymakers 
and administrators at the State and local levels can rely on.
    I also believe that the EAC contributes significantly to 
the professionalization of election administration. As 
officials learn about best practices, for example, from other 
jurisdictions they begin to identify with other election 
officials committed to ethical, technical and administrative 
standards. Because the EAC's information role is important the 
process by which it produces and releases information is also 
important. This is especially so in highly contentious areas 
where beliefs are strongly held.
    The case of the study on fraud and intimidation is 
illustrative. Fraud and intimidation are vitally important 
issues because they are a threat to democracy. They are also 
extraordinarily difficult to research because much of the 
alleged behavior is hidden.
    The EAC commissioned a bipartisan team of consultants to 
define the terms, collect existing knowledge from published 
sources and interviews, and suggest the most promising 
directions for further research. This was essentially the first 
step in a research design. The consultants collected and 
submitted a great deal of useful information. They also 
submitted a report summarizing their findings. The EAC, rather 
than publishing their summary, used this information and 
information collected by its own staff to produce and publish 
its own report.
    Now, I believe there is no question that the EAC has the 
right to use the information that was submitted to it. It is 
pretty clear in the contract that was signed. However, an 
article in the New York Times that has already been mentioned 
raised a question of whether the original report was modified 
for political considerations.
    The other side of the coin of course is that an agency has 
to take responsibility for its own product, in this case 
information. Just take the one example from the Times article. 
It says, though the original report said that among experts 
there is widespread but not unanimous agreement that there is 
little polling place fraud, the final version of the report 
released to the public concluded in its executive summary that 
there is a great deal of debate about the pervasiveness of 
fraud.
    Now, the consultant's statement was taken from the section 
of their report that summarized the interviews with 24 or 25 
participants. But later in the section where they are 
summarizing existing research they wrote, there is tremendous 
disagreement about the extent to which polling fraud; e.g., 
double voting, intentional felon voting, noncitizen voting, is 
a serious problem. So faced with this inconsistency the EAC 
chose to report the disagreement.
    Now, in academic circles withholding judgment in the 
absence of clear evidence in one direction or another is a 
standard research practice. And this study, as I understand it, 
was the first step in an ongoing process which I think is a 
critically important process. Now the EAC has changed its 
procedures to put research online. So I think it has a clear 
process by which it will air the research while at the same 
time holding its imprimatur for the things that it thinks is 
correct.
    Given that the EAC is a young agency still working at its 
organizational routines, I would like to add a recommendation 
for a formal peer review process, including some academic 
researchers, and I would suggest that the review process apply 
both to the design phase of a project as well as to the 
acceptance phase. The information role is very important.
    Thank you.
    [The statement of Mr. Montjoy follows:]

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    Ms. Lofgren. Thank you. I will turn now to our ranking 
member, Mr. McCarthy, for his questions.
    Mr. McCarthy. Well, in the spirit of bipartisanship, I 
think you can go first.
    Ms. Lofgren. I will then. Let me ask Professor Super, we 
received--as you know, we received a great volume of 
information from the EAC and it has now been made publicly 
available. I don't know if you have had a chance to look at the 
letter from the EAC's General Counsel to the Kentucky State 
Board of Elections regarding the National Voter Registration 
Act?
    Mr. Super. I have.
    Ms. Lofgren. The General Counsel concluded that the NVRA 
allows voters to be removed from the statewide voter 
registration databases based upon electronic information that 
the voter registered to vote in another jurisdiction without 
any further documentation or confirmation. This response 
letter, as I understand it from the record, was written the 
very same day the EAC received the inquiry from the Kentucky 
Board of Elections. But there wasn't any indication that the 
EAC officially adopted the General Counsel's interpretation of 
the NVRA. Considering the very limited rulemaking authority 
given to the EAC, do you think the EAC exceeded its statutory 
authority in this case?
    Mr. Super. Well, I have seen the letter you mention and I 
found it very disturbing because the statute very clearly in 
Section 208 requires three votes for any action. The Sunshine 
Act requires notice of public meetings. So I can't imagine how 
they could possibly respond in an authorized manner the same 
day they get a request.
    The letter is ambiguous as to whether she is writing for 
herself or for the commission. At the beginning she speaks 
about ``I'' and at the bottom she says ``we conclude,'' which 
implies she is speaking for the commission. She obviously has 
no authority to speak for the commission under the statute 
without a proper meeting and three votes.
    Also, it is not clear to me from reading the statute 
whether the subject matter of that letter is something that the 
commission is supposed to be opining on or not. But this is 
certainly not the appropriate manner for doing so.
    Ms. Lofgren. Let me ask Mr. Greenbaum, you were involved in 
the report in question. And we have heard the testimony of 
Professor Montjoy about the process and his recommendation, and 
we appreciate his testimony. But you were a participant. Do you 
have any--what do you think about what he said here?
    Mr. Greenbaum. Well, the thing that is interesting in terms 
of what happened with this report was, and you know I work with 
experts all the time. It would be very unusual for me to take a 
report from an expert, change it how I deem to see fit, never 
consult back with that expert and then file it with the court. 
And that is sort of what happened here, is that you had 
consultants who were picked that came back, researched, did 
significant research, and submitted their conclusions. And you 
had EAC staff changing the report without talking to the 
consultants at all.
    Ms. Lofgren. I am going to stop because we have been here a 
long time and we have got votes. And if we go promptly we might 
be able to let these gentlemen leave and not have to wait for 
our hour of voting. I am going to yield back my time and allow 
you to question.
    Mr. McCarthy. So you want to go right now? You want me to 
yield to you? I yield to Mr. Ehlers.
    Mr. Ehlers. I thank the gentleman for yielding. The next 
bill up is a bill that I have to speak on and be on the floor 
to manage, so I appreciate you yielding.
    This just sounds like a bit of a mess to me. I think some 
of the witnesses are making more of it than they should. This 
is a new agency. It appears the procedures weren't fully in 
place. It sounds to me like a very poor work product.
    I totally agree with the comments about transparency. There 
should be transparency. I agree with following proper 
procedures. That should be done. But if you have a poor report 
there is no sense even trying to manipulate it. Throw it out, 
start over, use what you can of it.
    On the dais here we have a number of experts on law, 
business, science. We do a lot of studies. We know when we get 
a good study. And if we do, we take it, run with it and maybe 
expand it if necessary. We know if we get a bad study, toss it 
out and start over. And I don't see a sense to quibble on it.
    I particularly appreciate Mr. Montjoy's comments. He has a 
great deal of academic experience. And I think he has the 
ability to judge fairly quickly whether a study is good or not.
    I would also like to give a quote from Mr. Chris Thomas of 
Michigan, as I said earlier, one of the most experienced 
election officials. His quote was, after reviewing the material 
I have concluded that the EAC was acting responsibly by not 
releasing portions of the contractor's conclusions that were 
not supported by the documentation and that were beyond the 
scope of the contract. In no case should a contractor be forced 
to allow an agency to publish a conclusion or position that 
lacks adequate documentation and that is beyond the scope of 
the contract.
    And I agree with that statement. I know what good research 
is in my field when I see it. I have seen an awful lot of bad 
research, I have seen an awful lot of good research. We can 
make judgments about whether it was doneright or not. I don't 
see any sense quibbling about what procedures were used after finding 
out something was inadequate. The important thing is to do it right. 
And I have confidence in the EAC to do it right, after perhaps having a 
false start in this one.
    It is clear to me from 40 years of experience in election-
related things that there is fraud. What we don't know is how 
much and what type. And what particularly concerns me is some 
of the modern manifestations of it. Since I know a lot about 
electronics I also can personally dream up a lot of ways to 
defraud people in systems. So that is what we should be looking 
forward to and stop trying to nitpick what fraud is taking 
place where, who knows what, who is doing what. Let us try to 
get the broad picture here. And the goal is not just to find 
out if there is fraud or how much. The goal is to stop the 
fraud. And that should be the emphasis of the studies.
    We all have ideas of how we would do it because we have 
different districts, we have different situations throughout 
the United States. And again, it has to be a comprehensive, 
thoughtful, careful study that really looks at all aspects of 
it and gives the EAC and us guidance on how to deal with real 
and potential fraud, particularly the anticipatory nature of 
stopping fraud and the geniuses that are out there dreaming up 
new ways to defraud.
    End of sermon. Thank you for letting me go. I appreciate 
it.
    Ms. Lofgren. Thank you. The gentleman yields back. And I 
would like to out of deference to the minority let Mr. McCarthy 
ask his 5 minutes and then Mr. Davis.
    Mr. McCarthy. I will be very fast. Professor Super, you 
said it should be three people there and it should be a public 
meeting, is that correct?
    Mr. Super. Yes.
    Mr. McCarthy. So the December meeting where it was a 
partisan vote for a final report with two Democrats voting yes 
and two Republicans voting yes unanimously, that would meet 
your criteria, would it not?
    Mr. Super. If it was a properly noticed meeting and the 
vote was as you described, then that is a perfectly legitimate 
action, sure.
    Mr. McCarthy. To Professor Montjoy, do you believe that if 
you get 24 interviews and use LexisNexis, is that an effective 
and accurate research method for determining voter fraud?
    Mr. Montjoy. Of course not. I think the interviews are very 
effective in determining ways to go about studying voter fraud 
and raising issues to be studied, which I thought was the 
subject of the report. I would have difficulty using opinion to 
determine voter fraud, period, whether it is 24 or 50.
    Mr. McCarthy. Professor Super, would you agree that 24 is 
an insufficient number of interviews or do you think it is?
    Mr. Super. I am not a social science researcher. I will say 
that it depends entirely on what you are trying to do. If you 
are trying to get a sense of what people feel, that can be very 
helpful. I have seen numerous Federal agencies act on the basis 
of literature reviews where there were many fewer than 24 
examples given. If you are trying to get data on the ground, 
that wouldn't be a useful approach. But of course people aren't 
very good at responding to questionnaires about whether they 
have committed felonies. So that kind of review of literature 
or interview of experts is a very common way of getting at it.
    Mr. McCarthy. Now, Mr. Greenbaum, you are an attorney by 
trade, right?
    Mr. Greenbaum. I am.
    Mr. McCarthy. Tell me if this is correct. In your opinion 
the social scientist at the Eagleton study was not in any way 
flawed, is that correct, that you didn't believe it was flawed.
    Mr. Greenbaum. I am not offering any opinion as to whether 
there were any mistakes at all or whether the report was 
perfect. I simply pointed out the point that I--I simply made 
the point that they went through a vetting process, they chose 
this consultant, they spent half a million dollars on this 
consultant and at the end of the day--and I am assuming, 
because I know for the voter intimidation fraud study that the 
EAC research director was involved with the consultants. If 
that was true for the voter identification study as well, it is 
a real shame that you put all those resources into it and at 
the end of the day you decide not to adopt the report.
    Mr. McCarthy. I don't want to put words in your mouth, but 
if you spend a lot of money, I ask for data, data comes back, 
but if someone points out it is flawed it is not your opinion 
we would still be forced to use it, would it, just because I 
spent money and I worked with them and the data was flawed?
    Mr. Greenbaum. Well, once again I am not here to offer an 
opinion as to whether that report was perfect or not. But I 
mean you are talking about taxpayer money here. And the thing 
that calls into question all this is what we have been talking 
about in a more general context of where people are coming to 
opinions that the administration, the Justice Department don't 
like, and that those opinions are then rejected out of hand.
    Mr. McCarthy. Could I just follow up with one question? Are 
you familiar at all with the one-tailed hypothesis test and the 
two-tailed hypothesis test?
    Mr. Greenbaum. I am not.
    Mr. McCarthy. I would just argue from a sense tax dollars 
were used, but I would hate from a concept, one, tax dollars to 
be used and wasted in using the wrong data and putting it out 
to the American people. Just for your own information the 
commonly used one is a two-tailed hypothesis test. The data 
came back was one tail. And if you talk to others, even the 
PhDs in Caltech and MIT studying this, and the early results 
back are they think it is flawed.
    I yield back my time.
    Ms. Lofgren. The gentleman yields back. The gentleman from 
Alabama is recognized.
    Mr. Davis of Alabama. Do any of you have any knowledge that 
the EAC contacted the individuals who did the survey and told 
them their work was deficient? You all are shaking your heads 
no. Mr. Greenbaum.
    Mr. Greenbaum. My understanding is no.
    Mr. Davis of Alabama. All right. None of you have any 
knowledge that the EAC made any contacts suggesting the poll 
was deficient, is that correct?
    Mr. Super. No information.
    Mr. Davis of Alabama. Do any of you have any knowledge that 
legal counsel for the EAC sent any communication to the 
entities suggesting that they had not performed the contract 
successfully?
    Mr. Super. I have no such information.
    Mr. Davis of Alabama. And you are all nodding your heads 
no. Do any of you have any knowledge that the EAC in any way 
attempted to void the contract at issue here?
    Mr. Greenbaum. No.
    Mr. Davis of Alabama. The reason I make those points is I 
have a different perspective. Mr. Ehlers I think is a very able 
Member of Congress, but I have a different perspective on this 
matter and I will state it briefly. If the EAC had problems 
with the performance of this contract, if the EAC thought that 
the study that was produced was incompetent, there were several 
steps that were available to it. One of them was trying to void 
the contract, one of them was raising some legal claim 
suggesting that the contract need not be followed. There were 
steps that were available to the EAC other than editing the 
report.
    As I understand the EAC, and I learned more about it in 
these last 30 minutes than I knew before, but it is frankly not 
meant to be a judgmental body, it is not meant to be a policy 
maker, it is meant to have almost no rulemaking authority. That 
frankly makes it a more or less, Professor Super, 
administrative entity without a lot of capacity for independent 
judgment.
    As I understand it, this was the body that was meant to 
make the judgments in terms of future legislation. Perhaps the 
executive branch may have a role as well. Obviously secretaries 
of state have a substantial role. But what is troublesome to me 
is that the EAC seems to have taken on the burden of making a 
judgment. What is of concern is that the judgment was shaped 
and influenced by one very assertive individual within the 
Department of Justice. That is problematic, and this is the 
last point that I will make.
    This again has a very familiar sound to those of us who 
constantly hear about an administration that suppresses 
scientific reports that it doesn't like, to those of us who 
hear constant reports about an administration that suppresses 
and demotes scientists who take the wrong perspective. For that 
matter those of us who hear about an administration that 
demotes generals who give advice that it doesn't like. All of 
those things add together and they paint a cumulative picture 
that is all too familiar to those of us who have sat on a 
number of these panels in the last several months.
    Ms. Lofgren. The gentleman yields back. I thank all of the 
witnesses for your testimony today. We may have additional 
questions which we will direct to you. And we ask if possible 
that you respond to them promptly. And we will adjourn this 
hearing now, with tremendous thanks for the participation of 
all of the witnesses.
    Thank you very much.
    [The statement of the chairman follows:]

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    [Whereupon, at 3:30 p.m., the committee was adjourned.]
    [Information follows:]

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