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

      VOTING SECTION OF THE CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF
                                    JUSTICE

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON THE CONSTITUTION,
                       CIVIL RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   ----------

                                OCTOBER 30, 2007

                                   ----------

                               Serial No. 110-156

                                   ----------

             Printed for the use of the Committee on the Judiciary

       Available via the World Wide Web: http://judiciary.house.govFOR
                                   SPINE deg.
                  VOTING SECTION OF THE CIVIL RIGHTS DIVISION
                       OF THE U.S. DEPARTMENT OF JUSTICE

     VOTING SECTION OF THE CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF
                                    JUSTICE

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON THE CONSTITUTION,
                       CIVIL RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                OCTOBER 30, 2007

                                   __________

                               Serial No. 110-156

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MAXINE WATERS, California            DANIEL E. LUNGREN, California
    WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
    ROBERT WEXLER, Florida               RIC KELLER, Florida
    LINDA T. SANCHEZ, California         DARRELL ISSA, California
    STEVE COHEN, Tennessee               MIKE PENCE, Indiana
    HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
    BETTY SUTTON, Ohio                   STEVE KING, Iowa
    LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
    BRAD SHERMAN, California             TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
    ADAM B. SCHIFF, California
    ARTUR DAVIS, Alabama
    DEBBIE WASSERMAN SCHULTZ, Florida
    KEITH ELLISON, Minnesota

                Perry Apelbaum, Staff Director and Chief Counsel
                     Joseph Gibson, Minority Chief Counsel
                                     ------

      Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                       JERROLD NADLER, New York, Chairman

    ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
    DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
    KEITH ELLISON, Minnesota             DARRELL ISSA, California
    JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
    ROBERT C. ``BOBBY'' SCOTT, Virginia  JIM JORDAN, Ohio
    MELVIN L. WATT, North Carolina
    STEVE COHEN, Tennessee

                         David Lachmann, Chief of Staff

                        Paul B. Taylor, Minority Counsel

                                C O N T E N T S

                                  ----------

                                OCTOBER 30, 2007

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Jerrold Nadler, a Representative in Congress from
      the State of New York, and Chairman, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     1
    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Ranking Member, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     2
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, Chairman, Committee on the
      Judiciary, and Member, Subcommittee on the Constitution, Civil
      Rights, and Civil Liberties....................................     3

                                   WITNESSES

    Mr. John K. Tanner, Chief, Voting Section, Civil Rights Division,
      U.S. Department of Justice
      Oral Testimony.................................................     6
      Prepared Statement.............................................     8
    Mr. Laughlin McDonald, Director, Voting Rights Project, Southern
      Regional Office, American Civil Liberties Union (ACLU)
      Oral Testimony.................................................    39
      Prepared Statement.............................................    41
    Mr. Toby Moore, former PoliticaL Geographer and Redistrict
      Expert, Votiing Section, Civil Rights Division, U.S. Department
      of Justice
      Oral Testimony.................................................    47
      Prepared Statement.............................................    50
    Mr. Robert N. Driscoll, Partner, Alston and Bird
      Oral Testimony.................................................    58
      Prepared Statement.............................................    59
    Ms. Julie Fernandes, Senior Policy Analyst & Special Counsel,
      Leadership Conference for Civil Rights (LCCR)
      Oral Testimony.................................................    61
      Prepared Statement.............................................    63

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan,
      Chairman, Committee on the Judiciary, and Member, Subcommittee
      on the Constitution, Civil Rights, and Civil Liberties.........     4
    Prepared Statement of the the Honorable Steve Cohen, a
      Representative in Congress from the State of Tennessee, and
      Member, Subcommittee on the Constitution, Civil Rights, and
      Civil Liberties................................................     5

                                    APPENDIX

    Material Submitted for the Hearing Record........................   115

       VOTING SECTION OF CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF
                                    JUSTICE

                                  ----------

                           TUESDAY, OCTOBER 30, 2007

                  House of Representatives,
                  Subcommittee on the Constitution,
                     Civil Rights, and Civil Liberties,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 10:10 a.m., in
    Room 2141, Rayburn House Office Building, the Honorable Jerrold
    Nadler (Chairman of the Subcommittee) presiding.
        Present: Representatives Conyers, Nadler, Scott, Davis,
    Wasserman Schultz, Ellison, Chabot, Pence, King and Franks.
        Staff Present: David Lachman, Chief of Staff; LaShawn
    Warren, Majority Counsel; Paul Taylor, Minority Counsel.
        Mr. Nadler. Good morning. This hearing of the Subcommittee
    on the Constitution, Civil Rights, and Civil Liberties will
    come to order. Today's hearing will continue the Subcommittee's
    oversight of the Civil Rights Division of the Department of
    Justice. Today the Subcommittee will focus on the work of the
    voting section. The Chair recognizes himself for 5 minutes for
    an opening statement. The right to vote is the bulwark of our
    other rights. Without an effective franchise, all other rights
    are vulnerable.
        For that reason, our Nation's history has been one of
    fulfilling the promise of our Declaration of Independence and
    our Constitution by progressively extending the right to vote
    to all citizens. That struggle has taken generations. But the
    struggle to ensure that the legal right to vote translates into
    an actual right to cast the ballot and have it counted remains
    unfinished. Congress has responded over the years with the
    enactment of laws to protect the right to vote, most recently
    with the bipartisan reauthorization of the Voting Rights Act.
        The hearings we held on the Voting Rights Act demonstrated
    the continuing need for its protection for voters, especially
    minority voters and voters with limited English proficiency. I
    take the Voting Rights Act very seriously. The two counties I
    represent, or parts of which I represent, are in New York City,
    are both covered jurisdictions under the preclearance
    provisions of section 5. We came by that distinction honestly
    through past misconduct. And I think you will find that most
    New Yorkers support the continued enforcement of the act.
        Today we examine the Voting Section of the Justice
    Department's Civil Rights Division. The Voting Section provides
    the teeth behind the words of the statute, or at least it is
    supposed to. If the laws are to have any real meaning the
    Voting Section must be a tireless advocate for the right to
    vote without fear or favor or without the intrusion of partisan
    political meddling.
        We have received numerous reports over the years that the
    section is not living up to its mandate, that politics has, as
    is the case with other parts of the Justice Department,
    intruded into the decision-making process, sometimes at the
    expense of the voting rights of the very people the law was
    intended to protect. In cases involving the Georgia ID statute
    or the preclearance of redistricting plans in Texas and other
    jurisdictions, there have been allegations, and I have serious
    concerns, that the work of the section was swayed by political
    considerations. We need to get to the bottom of these
    allegations. The work of the Voting Section is too important to
    let these hang in the air.
        I am also concerned about some comments that Mr. Tanner has
    made recently about minority voters which demonstrate to me at
    best the lack of understanding of the mission with which the
    section is entrusted. These comments call into question his
    fitness to head this important section. I look forward to the
    testimony of our distinguished witnesses. I yield back the
    balance of my time. I would now recognize our distinguished
    Ranking minority Member, the gentleman from Arizona, Mr.
    Franks, for his opening statement.
        Mr. Franks. Well, thank you, Mr. Chairman, and thank you,
    Mr. Tanner, for being here.
        Mr. Chairman, the Voting Section of the Civil Rights
    Division protects Americans' voting rights through a Federal
    monitoring program.And the proper functioning of this section
    is essential to the integrity of our election process. During
    the course of this hearing, we're going to hear numerous
    criticisms of the section's enforcement activities and
    priorities. And certainly that's part of the process, Mr.
    Chairman, to make sure that we get the facts on the table
    regarding the section's enforcement activities.
        Among the most important priorities that I want to
    emphasize is the difficulty that State and local officials have
    in confirming the citizenship of voters and preventing illegal
    noncitizen voters from voting and cancelling out legally cast
    votes. In April, I was glad to see that a Federal Appeals Court
    in Gonzalez v. Arizona rejected an effort to halt carrying out
    Arizona's recently enacted law that was part of Proposition 200
    which passed in 2004. The Arizona law requires residents to
    prove that they are American citizens when they register to
    vote and to present identification when they vote at the polls.
        The ruling by the United States Court of Appeals for the
    Ninth Circuit said the law did not appear to unduly burden the
    right to vote or violate Federal voting laws or place a
    disproportionate burden on naturalized citizens or require what
    would be an unconstitutional poll tax.
        Arizona's sound approach to voting integrity follows a 2005
    report by a group of bipartisan leaders and scholars led by
    former President Carter and Secretary of State James Baker,
    III. As the Carter-Baker report elaborated, ``to make sure that
    a person arriving at a polling site is the same one who is
    named on the list, we propose a uniformed system of voter
    identification based on the real ID card or an equivalent for
    people without a driver's license. They emphasize there is
    likely to be less discrimination against minorities if there is
    a single uniform ID than if poll workers can apply multiple
    standards.''
        Mr. Chairman, a recent Wall Street Journal/NBC news poll
    confirms every other poll on the subject over 81 percent of
    those surveyed supported a requirement to show a photo ID
    before voting. This included two-thirds of majorities from
    African-American populations, two-thirds majorities from
    Democrats and two-thirds majorities of Hispanics. Requiring
    photo identification would increase voter confidence. And one
    of the reasons identified by some minority and low-income
    voters as to why they do not vote is the perception that they
    will not be permitted to cast a ballot, or a ballot they cast
    will not be counted. Providing photo identification will
    increase that voter's confidence that they will be allowed to
    cast an effective vote.
        Mr. Chairman, we have many important issues to cover here
    today, and I simply look forward to hearing from all of our
    witnesses.
        Mr. Nadler. I thank the gentleman. I now recognize the
    distinguished Chairman of the full Committee, the gentleman
    from Michigan.
        Mr. Conyers. Thank you, Chairman Nadler.
        And I want to point out that in the midst of all the work
    that we are doing in trying to rehabilitate the Department of
    Justice--and nobody knows more than the Members of this
    Committee what we've been through these last 10 months since
    I've been Chairman--there is no section more important to us
    than the voter rights section. And that's why this hearing is
    so important to me. We had an oversight hearing earlier. But we
    want it to be made clear that the work we are doing has to go
    way beyond just a hearing, way beyond us taking 5 minutes each
    in a couple of rounds. This is far, far more critical than
    that.
        And so it is in that spirit that I welcome Mr. John Tanner,
    the head of the section. I notice his wife and daughter are
    here in the hearing room, which will probably make us be even
    more polite than we are going to be as this hearing proceeds.
    But we are in a crisis. We are in a crisis, and it is the duty
    of this Committee to determine what went wrong in terms of the
    voting responsibility, the encouragement of the right to vote,
    the protecting the right to vote, the continuing integrity of
    the ballot.
        And so what we are trying to inquire in this archaic way
    that the Congress runs is to find out what went wrong. And we
    want to also understand what the present situation is. And then
    of course the issue is, what are we going to do about it? And I
    am concerned about the time from today, October 30, until the
    first Tuesday in November. We got a lot of work, and we don't
    have much time to do it.
        Now, there have been more irregularities and challenging of
    the vote of purges, of misinformation, of failure to act since
    the election of 2000, the election of 2002, of 2004, 2006, than
    in any time in the service that I've been on this Committee. It
    has never been more troubling and disturbing. And so I'm very
    happy that we have the people on the Constitution Committee
    working with me on this. We've got to deal with this question.
    So what I'm saying is that we've got to work beyond and between
    these public hearings.
        The decline in section 2 cases is unprecedented in the
    history of the Department of Justice. And we are talking about
    one case being prosecuted in 6 years. We are talking about the
    Citizens' Commission on Civil Rights that criticize the
    enforcement efforts made under the tenure of the chief of the
    Voting Section, and well before Mr. Tanner's arriving at that
    position. And we are investigating the fact that a career
    attorney's recommendations were disregarded with reference to
    the vigorous enforcement of section 5; and that not only were
    they stripped out, but they were rewritten by someone else.
        We are concerned about the Inspector General's Office of
    Professional Responsibility who have raised multiple complaints
    against the section leader of that section and the staff. And
    it is being investigated in some depth concerning the
    defrauding the government through the abuse of travel funds. We
    are concerned about the fact--and some of it approaches the
    astounding circumstance of people selecting litigation sites
    based on their vacation travel preferences rather than the
    merits of the issue. We've got management issues raised by the
    section 5 preclearance. And so all of this--oh, don't let me
    forget, in Ohio, we got a letter from the section, probably
    from Tanner, Mr. Tanner himself, defending their decision to
    maldistribute voting machines disproportionately to the
    predominantly White precincts at the expense of the minority
    areas in Franklin County. It goes on and on.
        I'm going to revise and extend my statement. But we have
    more grievances, more questions of integrity, more questions
    about the efficiency of the most sensitive part of the
    Department of Justice, the voting rights section. And so we've
    got a big job in front of us. I thank the Chairman for allowing
    me to make some opening comments.
        [The prepared statement of Mr. Conyers follows:]

    Prepared Statement of the Honorable John Conyers, Jr., a Representative
      in Congress from the State of Michigan, Chairman, Committee on the
    Judiciary, and Member, Subcommittee on the Constitution, Civil Rights,
                              and Civil Liberties

        Last Congress, the Judiciary Committee was united in its effort to
    reauthorize the expiring provisions of the Voting Rights Act. Too many
    Americans face still barriers to exercising their right to vote and
    vigorous enforcement of this right by the Department of Justice is
    essential. Unfortunately, the Voting Section of the Civil Rights
    Division of the Justice Department, which is the primary agency charged
    with this responsibility, still faces many challenges, three of which I
    will highlight here.
        First, we need a clearer understanding of how the Civil Rights
    Division interprets its responsibilities regarding photo identification
    requirements. Earlier this year, the Citizens' Commission on Civil
    Rights issued a report criticizing the Voting Section's enforcement
    efforts and cited the preclearance of the Georgia photo identification
    requirement as a major example. In particular, the Commission cited
    Voting Section Chief Tanner's failure to fairly and vigorously enforce
    preclearence requirements of Section 5 as a result of partisan
    political concerns. The Commission concluded that this failure damaged
    the Section's procedural integrity and undermined its credibility.
        I am particularly troubled by Mr. Tanner's recent comments
    regarding the effects of photo identification requirements on minority
    voter participation. He said, for example, ``Our society is such that
    minorities don't become elderly the way white people do; they die
    first.'' While Mr. Tanner has already demonstrated questionable
    judgment in overruling the decision of Justice Department lawyers to
    object to the Georgia photo ID law, this statement--at least in my
    opinion--demonstrates a severe lack of appreciation of what the
    Section's mission should be--that minority voters should not be
    disenfranchised.
        Second, serious management issues have also been raised with the
    Section's core responsibility of Section 5 enforcement. Under Mr.
    Tanner's tenure, the corps of Section 5 analysts has been reduced from
    23 to 8 positions. In addition, the Judiciary Committee is aware of
    complaints of racial discrimination against the Deputy Chief for
    Section 5 as well as other Equal Employment Opportunity complaints.
        While I take seriously any allegation of discrimination, it is
    especially disturbing when the allegation is against the very
    institution that is charged with fighting against discrimination. In
    the coming year, the Voting Section will face a substantial increase in
    its work load due to preclearence requirements associated with the
    Federal elections. I look forward to hearing how the Mr. Tanner plans
    to address the allegations of a hostile racial environment in the
    Section and how he will rebuild the Section 5 analyst corps.
        Third, the Section's record with respect to Section 2 litigation,
    claims alleging discrimination in voting, is also problematic. In the
    first six years of the Bush Administration, fewer Section 2 cases were
    brought by the Voting Section than in any other administration since
    1982. The number of Section 2 cases brought on behalf of African
    Americans has come to a virtual standstill. While Mr. Tanner's
    testimony states that there has been a slight upswing in the last year,
    critics--particularly in the Latino community--note that the office's
    apparent overemphasis on Section 203 has left minority voters outside
    the political process, when they could have had a fair opportunity to
    elect candidates of their choice through Section 2 litigation.
    Bilingual voting materials are not the whole story for language
    minority voters.
        The Voting Rights Act remains the ``Crown Jewel'' of our civil
    rights laws. Nevertheless, as the Citizens' Commission on Civil Rights
    has detailed, those responsible for maintaining this treasure have
    faltered in their mission. In the next 14 months, the Voting Section
    has a substantial amount of work to complete. I hope that this hearing
    will highlight those challenges and that the Justice Department witness
    will suggest effective solutions. We have clearly reached the point
    where the status quo is unacceptable.

        I thank the gentleman. In the interest of proceeding to our
    witnesses, and mindful of the fact that there's another
    Subcommittee hearing scheduled in this room not too long from
    now, that we have a lot of witnesses, I would ask other Members
    to submit their statements for the record. Without objection,
    all Members will have 5 legislative days to submit opening
    statements for inclusion into the record. Without objection,
    the Chair will be authorized to declare a recess of the
    hearing. We will now turn to our witnesses.
        [The prepared statement of Mr. Cohen follows:]

     Prepared Statement of the Honorable Steve Cohen, a Representative in
     Congress from the State of Tennessee, and Member, Subcommittee on the
                Constitution, Civil Rights, and Civil Liberties

        Reports about the significant drop in and possible politicization
    of enforcement activity by the Civil Rights Division's Voting Section
    fit a deeply troubling pattern within the Justice Department under this
    Administration. The Voting Section is charged with protecting the most
    basic right in a democracy--the right to participate in choosing our
    leaders. Yet if the reports are accurate, it appears that, rather than
    protecting this right, the Voting Section has acted to suppress
    minority voters by approving regressive voting practices and procedures
    and by failing to file lawsuits when such suits would have been
    warranted. Moreover, the Voting Section may be using its enforcement
    discretion to assist the Republican Party politically, rather than to
    fulfill its mission of protecting minority voting rights. Finally,
    illustrating another persistent pattern under this Administration, it
    appears that the career staff of the Voting Section has largely been
    replaced by a cadre of conservative ideologues who have little
    experience with and little concern for civil rights law. I look forward
    to the opportunity to air publicly these concerns and to seek answers
    from the Administration concerning the enforcement activity of the
    Voting Section.

        Mr. Nadler. As we ask questions of our witnesses, the Chair
    will recognize Members in the order of their seniority on the
    Subcommittee, alternating between majority and minority,
    providing that the Member is present when his or her turn
    arrives. Members who are not present when their turn begins
    will be recognized after the other Members have had the
    opportunity to ask their questions. The Chair reserves the
    right to accommodate Members unavoidably late or only able to
    be with us for a short time.
        Our first witness is John Tanner, the Chief of the Voting
    Section of the Justice Department's Civil Rights Division. Mr.
    Tanner joined the Voting Section in 1976 as a research analyst,
    attended law school at night and, upon graduation, was hired
    under the Attorney General's program for law graduates. In
    1995, he left to prosecute criminal civil rights violations,
    including as a member of the National Church Arson Task Force.
    He also worked in the White House Office of Counsel to the
    President, the Senate Judiciary Committee and the Justice
    Department's Office of Legislative Affairs. In July 2002, he
    returned to the Voting Section to coordinate enforcement of the
    minority language provisions of the Voting Rights Act and was
    named chief of the Voting Section in June 2, 2005.
        Welcome. Your written statement will be made part of the
    record in its entirety. I would ask you now summarize your
    testimony in 5 minutes or less. To help you stay within that
    time, there is a timing light at your table. When 1 minute
    remains, the light will change from green to yellow and then
    red when the 5 minutes are up. Before we begin, it is customary
    for the Committee to swear in its witnesses. If you could
    please stand and raise your right hand to take the oath.
        [Witness sworn.]
        Mr. Nadler. Thank you. Let the record reflect that the
    witness answered in the affirmative. The witness may proceed.

       TESTIMONY OF JOHN K. TANNER, CHIEF, VOTING SECTION, CIVIL
              RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

        Mr. Tanner. Mr. Chairman, Ranking Member Franks and Members
    of the Subcommittee. Thank you for the opportunity to appear
    before you. Let me first note that I have apologized to the
    National Latino Congreso for comments I made about the impact
    of voter identification laws on elderly and minority voters. My
    explanation of the data came across in a hurtful way which I
    deeply regret. The reports of my comments do not in any way
    accurately reflect my career of devotion to enforcing Federal
    laws designed to assure fair and equal access to the ballot.
        I began working to secure equal voting rights as a teenager
    in Birmingham, Alabama, in the 1960's. I spent time on weekends
    at the SCLC headquarters stuffing envelopes. I took African
    American citizens to the Federal examiners to register to vote.
    And I embraced a vision of a just society: African Americans in
    elected positions in city halls, county courthouses, the State
    legislature and in Congress from Alabama.
        In 1976, I joined the Voting Section where I pursued that
    vision of a just society through voting rights enforcement
    actions. In the high point of my career, I helped obtain fair
    representation for African Americans in the Alabama legislature
    using section 5 of the Act, which we are now vigorously
    defending against a constitutional challenge. I also helped
    obtain a Mississippi legislative plan that added 20 new African
    American legislators, and I brought cases in many other States.
    I'm honored that my work has been recognized by the Conecuh
    County Branch NAACP, the Concerned Citizens of Bessemer, the
    Alabama Democratic Conference Young Democrats, the Greenwood,
    Mississippi, Voters League and the City Council of the District
    of Columbia.
        I worked outside the Voting Section from 1995 to 2002,
    serving at the White House Office of Counsel to the President,
    the Criminal Section of the Civil Rights Division and the
    Department's Office of Legislative Affairs, where I worked with
    Members and staff of this Committee. I returned to the Voting
    Section in 2002, assigned to lead the section's efforts in
    enforcing the minority language provisions of the Voting Rights
    Act.
        Since 2002, the section has filed twice as many such cases
    as in the entire previous history of the Act. During that time,
    we have filed a majority of all cases ever filed under the
    substantive provisions of the Act on behalf of Latinos, a
    majority of all cases on behalf of Asian Americans and over 70
    percent of all cases ever filed under the voter assistance
    provisions of section 208.
        Since I became Chief in June 2005, I have worked to protect
    and extend the voting rights of all minorities. We changed the
    election system in Euclid, Ohio, this year to open the door to
    African American representation. We have used section 5 to
    block discrimination in Alabama, Georgia, Texas. I reached out
    to African American groups to seize new opportunities to
    protect the rights of African Americans and to other groups
    protected by our statutes--Arab Americans, Native Americans,
    Latinos, Asian Americans and persons with disabilities.
        During my 31-year career, the section has averaged eight
    new cases per year. Since I became Chief, our pace has nearly
    doubled. In 2006, the section brought 18 new cases, the highest
    number in any year in history. These have been important cases.
    We have seen segregated polling places, ethnic slurs, race-
    based challenges, voters leaving the polls in tears, and
    ballots actually taken from voters and marked contrary to their
    wishes. We go into court to stop these practices.
        The section is so productive because of the energy, the
    enthusiasm, and the commitment of the section staff, a group of
    talented self-starters eager to find and combat discrimination.
    I have to make hard decisions. Ultimately, all of my decisions
    are made after careful scrutiny of the evidence, and they're
    based solely on the facts and the law. I am blessed to be in
    this position which enables me to continue to work toward
    realizing the vision of a just society I embraced over 40 years
    ago in Birmingham and to help this Nation realize its own
    vision of equal voting rights for all. Thank you for your
    attention. I appreciate the opportunity to respond to any
    questions you may have.
        [The prepared statement of Mr. Tanner follows:]

                      Prepared Statement of John K. Tanner

        Mr. Nadler. Thank you, Mr. Tanner.
        I will begin the questions by recognizing myself for 5
    minutes.
        Mr. Tanner, in April 2005, while you were serving as the
    Voting Section chief, Georgia passed a law requiring photo
    identification in order to vote. Georgia submitted its law for
    section 5 preclearance. We now know that four out of five of
    the Justice Department's civil service employees objected to
    the law and forwarded a 51-page memo to you that included a
    factual investigation into the legal review of the Georgia
    plan. Most significantly, the memo included a detailed analysis
    and a recommendation that the Department object to the voting
    change because it was likely to discriminate against Black
    voters, but they were overruled the next day by higher ranking
    officials at Justice. Only 1 day after receiving a staff
    analysis recommending an objection, the Department approved the
    Georgia plan.
        Brad Schlozman and Hans von Spakowsky, both former senior
    level Department of Justice officials who served in the CRT,
    testified before the Senate that you played a key role in the
    Department's decision to approve the Georgia photo
    identification law. Now, you received a 51-page memo that
    analyzed thousands of pages worth of information on August 25.
    The Department received additional information from the State
    of Georgia on August 26. So is it your position that you had
    sufficient time between August 25 and August 26, 1 day, to
    conduct a thorough review of the staff memorandum and the new
    information the Department received from Georgia?
        Mr. Tanner. Thank you for your question, Mr. Chairman.
    You've raised an important issue, and I'm happy to have an
    opportunity to address it.
        Consideration of the Georgia ID statute began, I believe,
    even before it was passed and certainly before it was received
    by the Department. I recall meeting in Georgia with Mr.
    McDonald, who is on the next panel, and discussing it before we
    received it. I entered that process. I approached the review of
    the decision, frankly, with the presumption that we would
    interpose an objection to it, that we would determine that it
    was racially discriminatory.
        My presumptions ran into the facts, however. It turned out
    that the statistical data, the facts before us, the best facts
    available, which is what I have to make my decisions on,
    demonstrated that it did not warrant an objection under the
    very narrow standards and the very narrow inquiry under section
    5 of the Voting Rights Act. I would be happy to discuss the
    precise scope of our review under section 5. But the----
        Mr. Nadler. Before you get into that, we'll get into that
    in a moment, the staff recommendation said that it did--the
    four to five staff members who reviewed it said that you ought
    to recommend an interposing objection. You overruled that; is
    that correct?
        Mr. Tanner. I made the decision to----
        Mr. Nadler. That they were incorrect and that you should
    change the recommendation?
        Mr. Tanner. I made the decision, Mr. Chairman. I would like
    to make that clear. I would, of course----
        Mr. Nadler. But in making that decision, you differed from
    the four attorneys or whoever, four of the five people, staff
    people, permanent staff, who recommended a contrary decision;
    correct?
        Mr. Tanner. I'm in an awkward position in that we are not
    allowed and it is inappropriate for Department personnel to
    discuss internal deliberations and the confidences of our
    clients. I'm happy to give you information and explain the
    basis for my----
        Mr. Nadler. Mr. Tanner, I believe that that is public
    information; that that has been testified to before, I think,
    the Senate. Is that not correct, that this is public? That
    these five individuals who reviewed this, who did all the staff
    work for them, recommended disapproving and one differed from
    that? That's all public information at this point.
        Mr. Tanner. I'm not aware of the testimony on that. I'm not
    going to deny it. I will say that I made the decision. And my
    decision was based on a careful analysis that had been ongoing
    for a considerable period of time. There were, as is typical in
    such situations, numerous discussions, detailed discussion of
    the data.
        Mr. Nadler. Before you did that, did you forward that to
    the front office, or did you get approval from the front
    office?
        Mr. Tanner. The internal memorandum was forwarded to the
    front office. The matter had been--had involved a large number
    of discussions over an extended period and very careful
    analysis and review by me----
        Mr. Nadler. Now, but is it not true that it was a long-
    standing section practice for a section chief who disagreed
    with a staff recommendation to submit a separate recommendation
    and leave the final decision concerning the split
    recommendation between staff and section chief to the assistant
    attorney general?
        Mr. Tanner. I think that the Assistant Attorney General was
    fully aware----
        Mr. Nadler. That wasn't my question. Was it or was it not a
    long-standing practice that when the section chief disagreed
    with the staff recommendation to submit a separate
    recommendation so that the Assistant Attorney General could see
    the separate recommendations by the staff and by the section
    chief and he could make a decision, or she?
        Mr. Tanner. That has not been the uniform practice.
        Mr. Nadler. Was it the general practice?
        Mr. Tanner. I will say----
        Mr. Nadler. I know it wasn't uniform because you didn't do
    it. Was it the general practice up to that point?
        Mr. Tanner. Prior to that time, it had not been uniformly
    done. As I mentioned, I was outside the section from 1995
    through 2002, and I was not involved in section 5 review of
    voting changes until I became Chief to any significant extent.
    So I can't speak authoritatively about the practices during
    that time. I have made changes in the section 5 process, and I
    would be happy to discuss those----
        Mr. Nadler. In a section 5 submission, who has the burden
    of proof, the submitting jurisdiction to prove that it doesn't
    violate the--that it doesn't negatively impact minority voting
    rights or the objecting parties?
        Mr. Tanner. The statute is clear that the burden is on the
    submitting authority to establish----
        Mr. Nadler. And what were the facts that met the burden of
    proof in this case?
        Mr. Tanner. There were three key facts to me in the case.
    The first was data showing, much to my surprise, frankly, and
    contrary to my expectations, that statistically the number of
    people in Georgia who had the requisite identification, the
    requisite photo identification, from the Department of Driver
    Services alone actually slightly exceeded census estimates of
    the population eligible to possess that ID. That was the first
    fact.
        The second fact that was very significant to me was the
    very large number, over 700,000, I believe, persons in Georgia
    who had nondriver's license IDs which met significant issues in
    the case.
        And finally, each of four data sets showed uniformly that
    the proportion of persons--that minorities were slightly more
    likely than White persons to possess the requisite Department
    of Driver Services identification.
        Those facts met the State's burden of showing that it would
    not discriminate where essentially or statistically all persons
    had the ID, and minorities were not--were more, not less,
    likely to have the ID.
        Mr. Nadler. And I'm not going to go into the fact that some
    of those figures were quite erroneous and that Georgia had to
    correct them. Yet despite everything you just said, the Federal
    Court reversed the decision and said that this was quite
    incorrect.
        Mr. Tanner. You've made an important point, Mr. Chairman,
    that I think it is good to address. The Federal Court in
    Georgia rejected the claim that the Georgia ID law was racially
    discriminatory. There was a claim under section 2 of the Voting
    Rights Act, which is the closest parallel among the claims to
    the section 5 inquiry. The court did reject the plan on the
    other bases, on constitutional bases, which are outside the
    scope of our review under section----
        Mr. Nadler. The poll tax is outside the scope of section 5
    review?
        Mr. Tanner. The only thing we can look at under section 5
    is a narrow question of whether a voting change would be
    retrogressive. That is, it would make things worse for minority
    voters relative to White voters, or at that time, if it had the
    purpose to retrogress. We cannot interpose an objection based
    on a constitutional violation or statutory violation that does
    not meet that narrow standard.
        Mr. Nadler. Thank you very much. My time has expired.
        I now recognize the gentleman from Arizona, the Ranking
    Member, Mr. Franks.
        Mr. Franks. Thank you, Mr. Chairman.
        Thank you, Mr. Tanner, for being here. Mr. Tanner, I'm sure
    it is a little bit redundant, and I'm going to ask you to
    repeat yourself a little bit, but would you give us your
    understanding of the Federal District Court ruling on the
    challenge to the Georgia voter ID law?
        Mr. Tanner. The initial Federal court ruling, which was in
    the preliminary injunction stage of the case, addressed a
    number of claims, including constitutional claims of the poll
    tax and the equal protection claim, as I recall, that were, as
    I said, completely outside the scope of section 5 review, which
    is, as I described it, does the voting change make things worse
    for minority voters relative to White voters? There was a
    similar claim under section 2 of the Voting Rights Act which is
    a general claim of discrimination. And the court, while issuing
    preliminary injunctions on the constitutional claims, declined
    to issue such an injunction and rejected the Section 2 claim at
    the preliminary injunction stage as it did other statutory
    claims under the Civil Rights Act. I don't recall the exact
    details of those.
        Mr. Franks. Mr. Tanner, as far as the 2008 elections, what
    steps have you taken to make those elections come off in a way
    that is the most just for voters in general? Give us an insight
    into what some of your priorities are there?
        Mr. Tanner. The first thing we are doing is conducting
    active litigation on Election Day type issues. Since I became
    Chief, we have brought 23 cases under the Voting Rights Act
    itself, the Voting Rights Act alone. We've also brought cases
    under our other statutes that protect overseas voters and other
    voters here in the United States. We also have been conducting
    very active Election Day monitoring. And during the 2004
    election, we had 1,199, or during the course of 2004, we had
    nearly 2,000 people out monitoring the polls.
        Every year we set a new record of placing people in the
    polls in key areas to make sure that we can address such
    problems that arise on Election Day and also to get evidence to
    go forward and address problems in the future. I also have been
    reaching out to minority groups, as I said in my opening
    statements, of all types of minority groups to work with us, to
    first help us to identify problem areas, areas where issues
    within our statutes are likely to occur, to help us obtain
    information and to help us gather that information in a way
    that it later can be used as evidence in Federal court.
        Mr. Franks. Mr. Tanner let me ask you, what do you think
    are your greatest accomplishments during your tenure as Chief?
    What are things that you think you've accomplished? What do you
    intend to do in the future?
        Mr. Tanner. I think my greatest accomplishment, which
    actually began before I was chief, was to develop a system to
    address the specific minority language statutes that I was
    responsible for enforcing so that we have a regular flow of
    such cases so we are doing a record setting job every year of
    addressing those issues and bringing lawsuits. My challenge now
    is to develop similar systems under each of our other statutes,
    and I'm making significant progress in that. We are reaching
    out to African American organizations, Arab American
    organizations and others whom we had not reached out to before
    to make sure that we get as much information and do as much for
    everyone as we possibly can.
        Mr. Franks. Thank you.
        Mr. Tanner, the Carter-Baker report on election reform, I'm
    sure you're probably more familiar with it than anyone on this
    panel. But they reported that a substantial amount of Americans
    are registered to vote in two different States. And according
    to those news reports, Florida has more than 140,000 voters who
    are apparently registered in four other States; in Georgia,
    Ohio, New York and North Carolina. This includes almost 64,000
    voters from New York City alone who are also registered to vote
    in Florida as well. Voting records of the 2000 election
    suggested that more than 2,000 people voted in more than one of
    those States. Duplicate registrations are seen elsewhere. As
    many as 60,000 voters are reportedly registered in both North
    Carolina and South Carolina. How do we address that? What has
    been your approach to that issue.
        Mr. Tanner. The issue of people voting in two different
    States or voting twice would fall within the jurisdiction of
    the Criminal Division of the Department of Justice. Our office
    enforces the civil laws that are designed to and do a great job
    of providing voter access. But we do not do criminal
    enforcement in our shop.
        Mr. Franks. Thank you, Mr. Tanner.
        My time is up. Thank you, Mr. Chairman.
        Mr. Nadler. Thank you. I now recognize the distinguished
    Member of the full Committee, Mr. Conyers.
        Mr. Conyers. Thank you, Chairman Nadler. This is the kind
    of a hearing in which we get two diametrically opposed reports
    of what's going on. We called this hearing because we are
    gravely disturbed about the ineffectiveness and the activities
    that have gone on within the voter section. And the voter
    section chief comes to us this morning to tell us he's never
    been more proud of the voter rights section and its
    accomplishments and, further, that he's got the greatest group
    of people, energetic, committed to voter rights, activity and
    its promotion. And as a matter of fact, it has never been
    better.
        And I think what we are seeing here with the Georgia voter
    ID case just starts off this discussion which we've been on. I
    didn't know we were going to be on it for so long. But the
    bottom line of all of this is, is that there wouldn't have been
    any Georgia voter ID law if your Department had followed the
    recommendations of your career lawyers. And it was because you
    overturned their work and decided to do something differently
    we now have not only Georgia voter ID, but we have other places
    which are screaming about voter fraud. The last time I looked,
    we had 82 individual cases of voter fraud that were prosecuted
    over the last period of 6 years. And so it seems to me that
    this is a hearing that we are going to go over sentence by
    sentence.
        Now, having said that, and I notice that the gentleman from
    Georgia, John Lewis, was over here for a while and still is. I
    want to turn very quickly to Ohio. You see, the Chairman of
    this Committee and I were in Ohio in Columbus. We he had a
    forum. We had Members of Congress, Stephanie Tubbs Jones,
    Sherrod Brown and other Members, the now Governor of Ohio and
    others were there. And I want to tell you, Mr. Section Chief, I
    never met so many hundreds of people furious about the process
    that characterized the elections in Ohio in November 2004.
    Never in my life. And I've been south and north in this
    situation. And yet you explain that--and there were African
    Americans and White people, Democrats and Republicans, people
    that worked in the electoral process, all furious about the
    misstatements, the deceptive practices, the purges that went
    on. And your letter that says allowing for problems of
    incidents in individual precincts, it appears that the tendency
    in Franklin County for White voters to cast ballots in the
    morning, i.e., before work, and for Black workers to cast
    ballots in the afternoon, i.e., after work, we have established
    this tendency through local contacts and through both political
    parties.
        Now, that was the only thing that nobody complained of, as
    I recall, at that hearing. That was the one thing that was not
    the problem. The problem is that there were people purged.
    There were incredible misstatements by the secretary of State
    at that time. The weight and the quality of the paper that one
    must apply for a ballot was all on there. And so I would refer
    you to the book ``What Went Wrong in Ohio'' that documents the
    incredible activities that took place there. And for you to
    have sent this letter does anything but demonstrate, the one
    you sent to Franklin County from the Department of Justice,
    anything, it demonstrates anything but your concern about voter
    rights, enforcement and encouraging the vote.
        Now, I just want to conclude. We have a lack of prosecution
    in the voting rights section. We need to do a lot, lot more in
    your section. And I'm hoping that you will take what will be
    directed to you as constructive. Because the one thing I'm
    concerned about is that we stop having happen what's happened
    since the 2000 elections, and then you come here to stagger our
    imagination by telling us that it has never been better. It has
    never been worse.
        Mr. Nadler. The time of the gentleman has expired.
        I recognize the gentleman from Indiana for 5 minutes.
        Mr. Tanner. I would welcome an opportunity to comment on
    Chairman Conyers' observations on that.
        Mr. Nadler. The gentleman's time has expired. We'll make it
    later.
        Mr. Tanner. Certainly. Thank you.
        Mr. Pence. Thank you, Mr. Chairman.
        I would be pleased, Mr. Tanner, if you would like to
    respond to Chairman Conyers' question during my time. You may
    proceed.
        Mr. Tanner. Thank you very much, Mr. Pence.
        I would like to thank Chairman Conyers for the work that he
    did do in Ohio where there were a lot of issues raised for all
    parts of the election process; issues that properly come before
    our office or the Criminal Division of the Criminal Section of
    the Civil Rights Division, many issues that fall within the
    jurisdiction of State officials, and many issues for this
    Congress to consider and address. And I appreciate your
    leadership in that and your report, which actually was the
    thing that spurred the investigation.
        From the report by Chairman Conyers, I determined that
    there was a good likelihood of a potential for a lawsuit in
    Franklin County. We went there. We gathered facts that fit into
    our statute. And many of the problems mentioned by the Chairman
    are things that happened outside of the county, that happened
    at the State level and that had already been addressed. I don't
    apologize for those things or defend those things, but I do
    note the context.
        The statistics in Franklin County showed that in terms of
    the actual voters who showed up on Election Day, there were
    more voters per voting machine in the predominantly White
    precincts than there were in the predominantly African American
    precincts, which was not the same as the voter registration
    data. We looked into it. We talked, as we mentioned, to both
    parties and other knowledgeable individuals. And ultimately, as
    I always must do, I based a decision after careful scrutiny on
    the facts and on the applicable law and made the complex,
    lengthy decision whether or not we can prove a violation of a
    specific statute in Federal court.
        Mr. Pence. Thank you for that.
        Reclaiming my time, I'm happy to extend that courtesy to
    you. I want to appreciate very much your apology today in the
    clarification of the comments that you made at the recent
    meeting of the National Latino Congresso. I want to acknowledge
    your three decades of commitment to civil liberties and to
    protecting against discrimination, particularly in the ballot
    box. I voted in favor of the Voting Rights Act reauthorization
    last year. I disagreed with some Members of this panel on my
    side of the aisle in defending bilingual ballots. It may just
    come up in a minute or two. But let me also offer--I would like
    to, Mr. Chairman, if we can submit in the record the strong
    letter of recommendation directed to you from the American Arab
    Anti-Discrimination Committee, a record that describes our
    witness as an individual who has, quote, gone above and beyond
    the normal call of a public servant to listen, work and
    incorporate the input of a diversity of communities, and extols
    his dedication of 30 years of his life to fighting
    discrimination.
        [The information referred to follows:]

        Mr. Nadler. Without objection.
        Mr. Pence. I would just ask in my remaining time, Mr.
    Tanner, there was so much controversy in the last Presidential
    Election over accusations of the rights of minority voters
    being infringed upon. Could you speak about any steps your
    division has taken, you've personally taken to prepare for the
    2008 elections? Can you give us assurances that the Voting
    Section will respond to problems of the kind experienced or
    alleged to be experienced in 2000 and 2004?
        Mr. Tanner. I would be happy to, and I appreciate the very
    important question. We have begun reaching out, and began some
    time ago to reach out to the groups that monitor elections, as
    I did before the 2004 election, to minority groups across the
    spectrum. I much appreciate the letter from the Arab American
    Anti-Defamation Committee because they may well be the group
    that in many ways is most vulnerable because of all the
    circumstances of this country. And I felt that we have a
    particular obligation to protect them. But also to many
    organizations--the NAACP, the Lawyers Committee, the NAACP
    Legal Defense Fund, the National Congress of American Indians,
    LULAC, MALDEF, MALEO, and groups across the spectrum so that we
    can work together so we can do the best possible job
    anticipating problems, getting information early enough to make
    the difficult decisions, not only about where there might be a
    problem on Election Day but where we should have someone stand,
    in which building they should be. It is very complex. It is
    very important. We've been doing more of it than ever. In 2008,
    and the time as Mr. Conyers mentioned, between now and 2008, is
    such an important time, there's not a lot of time, and there is
    an awful lot to do.
        Mr. Nadler. Thank you. And before proceeding to our next
    question, I simply want to recognize and welcome the presence
    of one of the giants of the civil rights movement in the
    struggle for voting rights, our colleague, the gentleman from
    Georgia, Mr. Lewis, and to welcome him here today. And I now
    recognize the gentleman from Alabama for 5 minutes.
        Mr. Davis. Thank you, Mr. Chairman.
        Mr. Tanner, good morning to you.
        Mr. Tanner. Good morning.
        Mr. Davis. I echo the concerns that Mr. Nadler and Mr.
    Conyers raise. I did note a number of letters that you
    submitted. Mr. Pence just alluded to some of them, people with
    whom you've worked in the civil rights community. I think you
    submitted some letters from some people I know in Alabama.
    There's only one problem with letters. Someone somewhere once
    said that only people with bad credit need co-signers.
        But let me turn to a more important observation than that.
    You apologized at the beginning of your comments today for the
    statements that you made. I'm not 100 percent sure what you're
    apologizing for. I'm not sure if you're apologizing for how
    people read the statements or if you're apologizing for making
    them. So I want to give you some chance to be more specific
    about that. I want to read you a quote, and first of all tell
    me if you said it. Quote, our society is such that minorities
    don't become elderly the way White people do; they die first.
    Did you say that?
        Mr. Tanner. That was part of my statement, Mr. Davis, and I
    welcome----
        Mr. Davis. I just want to ask you if you said that, and
    you've said that you did. Is that an accurate statement?
        Mr. Tanner. It is a sad fact.
        Mr. Davis. Is it an accurate statement?
        Mr. Tanner. I believe that the census data shows that life
    expectancy, in Georgia anyway, which is what I was addressing,
    is lower for African Americans.
        Mr. Davis. Well, you don't say that. You say that
    minorities don't become elderly the way White people do. Is
    that accurate?
        Mr. Tanner. It was a very clumsy statement.
        Mr. Davis. Is it an accurate statement?
        Mr. Tanner. I believe that I've said--Mr. Davis, I may not
    completely understand the question.
        Mr. Davis. The question is, is it accurate that minorities
    don't become elderly the way White people do?
        Mr. Tanner. The statistical data indicate that life
    expectancy is lower for minorities.
        Mr. Davis. Then you say, they die first. Who is the they?
        Mr. Tanner. I was addressing the sad fact that the
    inequities in this country are such, and I'm not an expert on
    all of those inequities----
        Mr. Davis. Let me slow you down because we only have 5
    minutes, and you'll have an opportunity to respond to our
    comments, so my time is precious. Let me ask you this. In my
    State of Alabama, 2004 Presidential Election, what percentage
    of minorities do you think voted in that election for
    President, Mr. Tanner, in my State of Alabama?
        Mr. Tanner. I would be--I do not know the figure, and I
    would like to make sure before I give any information.
        Mr. Davis. Do you have a ballpark estimate?
        Mr. Tanner. I don't have an estimate. I would have to----
        Mr. Davis. The number was 73 percent. Do you happen to know
    what percentage of Whites voted in my State of the Presidential
    in 2004?
        Mr. Tanner. I also do not know that.
        Mr. Davis. The number was 74 percent. Do you know what
    percentage of those minority voters were elderly in my State?
        Mr. Tanner. It is my belief, but I would have to check the
    data, that elderly voters in Alabama, many of whom I've worked
    with, have good turnout.
        Mr. Davis. Yes, elderly voters have good turnout. And in
    fact, minority elderly voters have a very good turnout; don't
    they, Mr. Tanner? Just to frame this in terms of statistics, in
    my State of Alabama in 2004, of that 73 percent Black voter
    turnout, 40 percent of them were over 60. That is actually a
    higher percentage than in the White community. So if you look
    at the statistics rather than your stereotypes, elderly Blacks
    are more likely to vote than elderly Whites. And I think this
    is--did you also make the comment, by the way, that Blacks were
    more likely to go to check cashing businesses at some point in
    Georgia? Did you make that observation?
        Mr. Tanner. In addressing the----
        Mr. Davis. Don't give me a long answer. I don't have the
    time. Did you make the comment, or did you not?
        Mr. Tanner. I made a comment about that.
        Mr. Davis. Now, this is the point, Mr. Tanner, I think we
    want to drive home. Do you have any statistics about how many
    Blacks visit check cashing businesses versus the number of
    Whites who do?
        Mr. Tanner. I do not have any with me, but I believe such
    statistics about the number of unbanked persons here in the
    United States by race would be available through the Office of
    Comptroller of the Currency.
        Mr. Davis. Do you know those numbers?
        Mr. Tanner. I do not know those numbers.
        Mr. Davis. Well, this is the problem. Once again, you
    engaged in an analysis without knowing the numbers. And the
    point, Mr. Tanner, if I can just finish my observation, Mr.
    Chairman, you're a policy maker, sir. You are charged with
    enforcing the voting rights laws in the country. And if you are
    not fully informed about things that you're talking about and
    pontificating about, if you're basing your conclusions on
    stereotypes and generalizations, that raises a question in the
    minds of some of us whether or not you are the person in the
    best position to make these choices. You said that minorities
    don't become elderly the way White people do; they die first.
    Then you say, well, that was a horrible generalization on my
    part. You say you don't know how many elderly minorities vote
    versus the number of Whites who vote who are elderly. You make
    observations about people going to check cashing places. And
    you suggest that, well, because Blacks go to check cashing
    places they surely must have photo ID. And then I ask you if
    there's a statistical basis for that. You say you don't know
    it. If you are basing your conclusions on stereotypes rather
    than facts, then it suggests to some of us that someone else
    can do this job better than you can.
        Mr. Tanner. I would welcome an opportunity to address that.
    I did not make my decisions based on assumptions. We looked at
    the numbers. I had been surprised by those numbers. And I was
    trying to----
        Mr. Davis. Did you look at numbers regarding elderly
    minority voter participation, because those are the relevant
    numbers?
        Mr. Tanner. The relevant numbers, I believe, that I looked
    at were whether or not there were people who did not--first,
    did not have photo ID in Georgia.
        Mr. Davis. Did you look at numbers regarding elderly
    minority voter participation, and can you cite those numbers to
    the Committee?
        Mr. Tanner. The data showed that everyone in Georgia, that
    there were more people who had the ID of all ages, all voting
    age people who had the ID, than there were voting age people
    who were eligible to have the ID.
        Mr. Davis. Did you look at the percentage of elderly
    minority voters in Georgia?
        Mr. Tanner. In making the decision, I looked at the facts
    that were relevant to the----
        Mr. Davis. Did you look at the percentage of elderly
    minority voters in Georgia?
        Mr. Tanner. No.
        Mr. Davis. Thank you.
        Mr. Nadler. The gentleman's time has expired.
        The gentleman from Iowa.
        Mr. King. Thank you, Mr. Chairman.
        Mr. Tanner, I appreciate you coming before this Committee.
    First, I would ask you, you have testified that your statement
    that brought about this hearing was clumsy. And I want to give
    you an opportunity with clarity to state before this Committee,
    do you believe that your statement remains supported by
    empirical data and fact?
        Mr. Tanner. I, again, apologize for the statement. I do
    believe that the statement with respect to life expectancy,
    that it is a sad and sorrowful fact that in this country, or in
    Georgia at least, which is the place I've looked at the data,
    and each State should be considered separately, that life
    expectancy is lower among members of minority groups. I
    believe, as to the other observations, speculations, that there
    are data supporting those observations. And I very much
    appreciate any time when someone disagrees with a proposition
    I've made, to receive evidence or information that corrects my
    understanding; I realize that I do not know everything. I
    welcome new information.
        Mr. King. Thank you, Mr. Tanner.
        And I'll just boil that down to if the facts support your
    statement, then why do you think that you're here before this
    Committee?
        Mr. Tanner. Well, I welcome the opportunity to explain what
    I do before the Committee. I certainly made the statement and
    observation in a very clumsy way.
        Mr. King. I've asked you an inappropriate question, because
    in the end, you have to speculate on the motives of some of the
    questions that are being asked of you. And I wanted to point
    out that there's a difference between being factually correct.
        Mr. Nadler. Would the gentleman yield for a moment?
        Mr. King. I would yield.
        Mr. Nadler. Thank you. As Chair, I simply want to point out
    that this Committee is not having this hearing simply because
    of a statement made by Mr. Tanner. It is one in a series of
    hearings on the voter rights section and on the Civil Rights
    Division and would have occurred regardless of any statements
    he made. It had been prepared, it had been scheduled long
    before these recent statements, so the hearing would have
    occurred in any event.
        Mr. King. Reclaiming my time, I thank the Chairman for that
    clarification. And as I said, I really intend to withdraw the
    question because it put the witness in a bad position.
        So I would continue on. And that would be--I think it's
    important to know that if a statement is made publicly and is
    supported by the facts, then the subject comes down to then was
    it insensitive or wasn't it? You've already spoken to that. I'm
    ready to accept that as a definition of what happened and move
    on.
        I think it's important here that we often are debating
    things beyond the facts, and sometimes a person is criticized
    for a factual statement but there is not opposing documentation
    of another group of data that would rebut that. And that seems
    to be what I am missing here.
        I wanted to ask you, you've testified that you brought 23
    different cases under your jurisdiction. How many
    investigations have you launched? Do you know the answer to
    that?
        Mr. Tanner. I do not know the exact number of
    investigations. We have had a number of investigations that are
    ongoing, some of which are very near to fruition.
        Mr. King. Would it be in multiples of the 23 cases?
        Mr. Tanner. It would be far more than 23.
        Mr. King. Are we talking hundreds or thousands?
        Mr. Tanner. It would be in the range of hundreds.
        Mr. King. Okay. That gives me some concept of that. And
    should the law be color-blind, Mr. Tanner?
        Mr. Tanner. I think that the Constitution protects all
    citizens of this country from discrimination on the basis of
    their race.
        Mr. King. I am watching my clock tick down. And the
    question goes then to the Voting Rights Act, because the Voting
    Rights Act in fact is not color-blind, is it not?
        Mr. Tanner. The Voting Rights Act is a very important
    remedial statute directed to address a long and, frankly,
    appalling history of segregation in this country.
        Mr. King. But is it color-blind?
        Mr. Tanner. The Act protects all citizens without regard to
    their race.
        Mr. King. I will state this and then ask you to disagree. I
    will state it again. The Voting Rights Act is not color-blind.
    Do you agree or disagree?
        Mr. Tanner. I think that the Voting Rights Act recognizes
    the special--the discrimination that has occurred against
    members of racial----
        Mr. King. I understand. I recognize that. So you don't
    disagree with my statement, but you would like to expand a
    little more. I just don't have time for that.
        Again, I will ask you, has it been brought to your
    attention that there have been local jurisdictions that have
    passed what one would view as anti-illegal immigrant ordinances
    within their, say, county jurisdictions, voting jurisdictions,
    that you might be aware of?
        Mr. Tanner. There is a great deal of tension about the
    immigration issue in this country. Certainly that is something
    that we are aware of and especially as it interacts with the
    voting process.
        Mr. King. Have some of these organizations that advocate in
    favor of illegal immigrants met with you? Have you had
    conversations with them? And I would say in particular maybe La
    Raza, MALDEF, and LULAC?
        Mr. Tanner. I have met a number of times with
    representatives of La Raza, MALDEF and LULAC.
        Mr. King. And have they ever asked to you bring an
    investigation into a jurisdiction that has passed local
    ordinances that would be supportive of laws to enforce our
    illegal immigration?
        Mr. Tanner. Those organizations have brought issues to our
    attention as they affect the Voting Rights Act.
        Mr. King. Have they asked you to intervene any of these
    jurisdictions; in particular, Prince William County, just
    across the river?
        Mr. Tanner. Well, we have received inquiries about the
    voting situation in Prince William County, as we do from other
    groups all across the United States.
        Mr. King. Have they asked you to investigate in those
    jurisdictions?
        Mr. Tanner. I don't know that we have discussed those
    jurisdictions. We have discussed Prince William County. I have
    discussed Prince William County.
        Mr. King. I thank the witness. I am watching the clock
    here. I have some other questions to submit in writing. I
    appreciate the opportunity, and I would yield back the balance
    of my time.
        Mr. Nadler. The witness may answer the question.
        Mr. Tanner. Answering questions about legal issues can
    sometimes be difficult to do in very short language, and I
    apologize for that. I was not trying to be evasive. I was
    trying to tell you what we had in fact done. Thank you for the
    time, Mr. Chairman.
        Mr. Nadler. Thank you. I will now recognize the gentlelady
    from Florida.
        Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr.
    Chairman, first I would like to ask unanimous consent to submit
    this article for the record, from The New York Times of April
    12, 2007. The headline is, ``In 5-Year Effort, Scant Evidence
    of Voting Fraud.''
        Mr. Nadler. Without objection.
        [The information referred to follows:]

        Ms. Wasserman Schultz. Thank you.
        Mr. Tanner, it is a privilege to be able to spend some time
    talking to you about this very important issue. You mentioned
    in your opening remarks that the purpose of the voter purging
    effort from your division was the result of a pursuit of voter
    fraud. And my colleague, Mr. Franks, referenced the State of
    Florida and numbers, something like 2,000 people who were
    listed as voting in both Florida and in another State. When the
    former Attorney General Gonzalez was here and we had an
    opportunity to question him about voter fraud, pursuing voter
    fraud being a priority of the Department of Justice and what a
    grave concern that was, he was unable to produce any
    significant evidence of widespread voter fraud, particularly
    deliberate voter fraud.
        And I will reference the Federal Election Assistance
    Commission analysis that specifically said that despite the
    Department of Justice's pursuit of voter fraud--and despite
    your testimony just now that it is in the hundreds as far as
    convictions--only about 120 people have been charged and 86
    convicted as of 2006 with voter fraud. And most of those,
    number one, were Democrats; and, number two, were found to only
    have mistakenly filled out voter registration forms or
    misunderstood eligibility rules.
        So my question is this: I would think and wholeheartedly
    support that the pursuit of voter fraud, particularly
    deliberate voter fraud designed to impact the elections, would
    be a worthy goal. But it doesn't appear that the Department's
    pursuit of voter fraud has turned up any evidence of that. Very
    little, in fact.
        And my specific question is that at any time during your
    tenure as chief, have you drawn up a list of voters that were
    thought to be ineligible to vote or ought to be removed from
    the rolls as part of your section 8 enforcement activity? And
    if so, in what States or cases? And what methodology was used
    to created that list or lists?
        The reason that I am asking you is that in 2000--and I am
    from the State of Florida--our former Secretary of State and
    former colleague here in the House, Katherine Harris, purged
    100,000 voters from our rolls in Florida who were eligible to
    vote. And so a widespread effort on your part, on the part of
    your division to do that, especially in light of the fact that
    there has been scant evidence of both voter fraud and less than
    100 convictions from your Department, seems that this is an
    overzealous activity--that rather than continue to focus on
    that, you should be pursuing the low-income registration that
    you have completely abdicated your responsibility to do, and
    that is part of your mandate under the law.
        Mr. Tanner. I welcome the opportunity to address your
    question. First, our section has nothing to do with voter
    fraud. The Criminal Division of the Department of Justice
    prosecutes cases of voter fraud. Our statutes are voter access
    cases.
        Ms. Wasserman Schultz. But what is the purpose--then if
    your section has nothing to do with voter fraud, what is your
    Department's purpose in pursuing purging of voters from the
    rolls? What is the reason for doing that?
        Mr. Tanner. Under the National Voter Registration Act,
    passed by the Congress and signed by the President, there are
    list maintenance requirements that first of all----
        Ms. Wasserman Schultz. Right. I understand that.
        Mr. Tanner. Require notice before anyone is purged, and
    that also require that persons who have died are no longer----
        Ms. Wasserman Schultz. Let me just interrupt you a second,
    because I want to make sure that rather than expounding, you
    are answering my question specifically.
        For example, I understand the purpose--the general purpose
    of purging. But the priority that your division has made it is
    what deeply concerns me, especially given the track record from
    my home State.
        In 2007 a lawsuit was dismissed from the Justice Department
    that was filed against the Missouri Secretary of State,
    alleging that her office failed to make a reasonable effort to
    remove ineligible people from local voter registration rolls.
    It was dismissed because the judge ruled that the government
    had provided no evidence of fraud.
        I don't understand why it appears to be such an important
    priority since voter purging really seems to mostly just be an
    administrative function, and, in my lifetime, has always been
    treated as an administrative function, but your division has
    elevated it to a massive priority. And you just testified that
    your division has no responsibility for pursuing voter fraud.
    So, why?
        Mr. Tanner. Counties in Missouri were removing voters from
    the active voter list without the notice required by the NVRA:
    they were removing voters. Other counties were not removing
    voters, and there was a county that had more voters on the
    rolls than they had people.
        Ms. Wasserman Schultz. They purged 50,000 in 2002, and in
    spite of that, you pressured them in 2005 to remove more, even
    though they were likely being cautious about removing voters
    from the rolls so that they could avoid the problems that they
    had had 3 years before.
        Mr. Tanner. I think it is accurate to say that voters were
    being removed in Missouri without notice to----
        Ms. Wasserman Schultz. And you were encouraging them in
    2005 to remove more.
        Mr. Tanner. We sued them to stop them from removing voters
    without notice. That was a count in our lawsuit.
        Ms. Wasserman Schultz. Well, it was--the primary purpose of
    your lawsuit was that Missouri was failing to make a reasonable
    effort to remove ineligible people from local voter
    registration rolls, and that was dismissed in April of 2007;
    isn't that correct?
        Mr. Tanner. The case was dismissed because the court
    determined that we had to sue each of the individual counties
    that was removing voters without----
        Ms. Wasserman Schultz. But a component of your lawsuit was
    that the office in Missouri had failed to make a reasonable
    effort to remove ineligible people from local voter
    registration rolls, not what you are representing here today as
    the primary purpose.
        Mr. Tanner. There were two purposes----
        Ms. Wasserman Schultz. And you are conveniently choosing
    only to talk about the one that was not related to pushing
    them, pressuring them to remove ineligible voters from the
    rolls, even though 3 years before they had made a mistake in
    removing 50,000 voters from the rolls. Isn't that right?
        Mr. Tanner. I believe that the complaint which addresses
    both issues speaks for itself. We would be happy to provide
    additional documents to the Committee, but we are----
        Ms. Wasserman Schultz. Thank you, Mr. Chairman. My time has
    expired.
        Mr. Nadler. Thank you. The gentleman from Minnesota is
    recognized for 5 minutes.
        Mr. Ellison. Exactly what are you apologizing for?
        Mr. Tanner. I hurt people.
        Mr. Ellison. How did you hurt them?
        Mr. Tanner. The reactions of people to my statements, which
    were very contrary to what I was tying to communicate.
        Mr. Ellison. So are you apologizing because of the reaction
    people had to your statements?
        Mr. Tanner. I caused that reaction--certainly not
    intentionally. I made a clumsy statement.
        Mr. Ellison. So what was clumsy about what you said?
        Mr. Tanner. I'm sorry?
        Mr. Ellison. What was clumsy about what you said?
        Mr. Tanner. I believe--well, what I was thinking----
        Mr. Ellison. No. What was clumsy about what you said?
        Mr. Tanner. I was addressing a narrow issue of the
    statistics needed to show a violation of Federal law in a very
    clumsy tone, the tenor of my remarks.
        Mr. Ellison. So you are apologizing for your tone?
        Mr. Tanner. I am apologizing that my tone caused this. I
    believe that I am responsible----
        Mr. Ellison. So the problem is the tone?
        Mr. Tanner. I certainly had a bad tone and clumsiness to
    the statement.
        Mr. Ellison. Is it true that minorities died so that the
    voter ID laws just don't affect older people of color the same
    way that they do young people?
        Mr. Tanner. I never ever meant to suggest----
        Mr. Ellison. I don't know what you are apologizing for. You
    say that you were right, but your tone was wrong. I don't know
    what you are saying you are sorry for. Could you please help me
    understand; if you are claiming that you are statistically
    correct, why are you apologizing? Are you trying to just carry
    favor?
        Mr. Tanner. I am--I am not. I feel that if I make remarks
    that people misinterpret----
        Mr. Ellison. So people misinterpreted what you said?
        Mr. Tanner. I apologize for that.
        Mr. Ellison. Wait a minute. You said--I'm sorry. Did people
    misinterpret what you said?
        Mr. Tanner. I believe I said it in a way that did not
    communicate effectively.
        Mr. Ellison. ``minorities don't become elderly the way
    White people do.'' Is that true?
        Mr. Tanner. I think that is clumsily stated.
        Mr. Ellison. Is it true?
        Mr. Tanner. People age in the same way.
        Mr. Ellison. Right. My dad is almost 80.
        Mr. Tanner. Absolutely.
        Mr. Ellison. He is Black.
        Mr. Tanner. I don't mean to suggest there are not elderly
    people.
        Mr. Ellison. What does it matter--what difference does it
    make whether the statistics--what does that matter to the
    individual voter?
        Mr. Tanner. It matters not at all to the individual voter.
        Mr. Ellison. So your statement was also irrelevant; is that
    true?
        Mr. Tanner. The statement was addressing a specific
    assertion related to law enforcement.
        Mr. Ellison. Basically your statement that minorities don't
    become elderly the way White people do has no relevance to
    whether an individual voter ID bill should apply to minorities
    or seniors; isn't that right? It just doesn't matter. So if it
    doesn't matter, why are you making the point?
        Mr. Tanner. I was trying to address how I ran--the
    presumptions that I made.
        Mr. Ellison. Right. Presumptions.
        Mr. Tanner. Presumptions that I made.
        Mr. Ellison. Presumptions, which is similar to the word
    ``assumptions,'' which is similar to the concept of stereotype,
    right?
        Mr. Tanner. I had assumed----
        Mr. Ellison. Let me ask you this. What is a poll tax?
        Mr. Tanner. A poll tax is a requirement that someone
    purchase or pay a tax solely for the purpose of voting.
        Mr. Ellison. Does the 24th amendment speak to poll taxes?
        Mr. Tanner. It does.
        Mr. Ellison. What does it say about it?
        Mr. Tanner. I do not have the text of the amendment in
    front of me.
        Mr. Ellison. I didn't ask you for the text. What does it
    say about it?
        Mr. Tanner. It bans poll taxes.
        Mr. Ellison. So a poll tax is a fee that is required for a
    voter to pay before they can vote, right? Yes or no.
        Mr. Tanner. Yes. That would--a poll tax would be such a
    fee.
        Mr. Ellison. What is the cost of getting an ID for a person
    who doesn't have one in, say, Georgia?
        Mr. Tanner. The IDs are available without cost in Georgia.
        Mr. Ellison. Okay. So there is no cost to it. What about
    the information you need to get an ID?
        Mr. Tanner. At the present time, there is no cost as I
    understand it.
        Mr. Ellison. So Georgia IDs are free to all people; is that
    right?
        Mr. Tanner. Georgia now has a free ID available in every
    county to voters.
        Mr. Ellison. So you don't have--so I can go into Georgia
    and say I want an ID, and nobody is going to ask me to pay
    anything?
        Mr. Tanner. I forget the precise things. But right, there
    is no fee. And the case----
        Mr. Ellison. And this is in regard to--this is in regard to
    income or anything? It is just free?
        Mr. Tanner. At the present time, yes. Previously there had
    been an indigency oath requirement.
        Mr. Ellison. So the Secretary of State makes--the State of
    Georgia just foots the bill on that?
        Mr. Tanner. I don't know about that.
        Mr. Ellison. What about in Indiana? Is it free there?
        Mr. Tanner. I am not familiar with Indiana.
        Mr. Ellison. Last question. Arizona?
        Mr. Tanner. I am not familiar with Arizona.
        Mr. Ellison. Maybe we will have a chance to come back.
        Mr. Nadler. The time of the gentleman has expired. We have
    votes coming up. I would like to recognize the gentleman from
    Virginia, Mr. Scott, for 5 minutes.
        Mr. Scott. Thank you.
        Mr. Tanner, I just have a couple of quick questions,
    beginning with, under the Voting Rights Act that we passed last
    year, if you have a majority/minority district, you cannot
    dismantle that to create two districts in which the minority
    community cannot elect a candidate of its choice. If they had
    been electing a candidate of their choice in a majority/
    minority district, you can't dismantle that and create two
    districts where that is not the case; is that right?
        Mr. Tanner. I believe that would be objectionable.
        Mr. Scott. If the district is not technically,
    arithmetically, a majority, but the minority county has
    routinely elected candidates of its choice reliably and
    predictably, can you dismantle that district? Is that district
    protected under the Voting Rights Act?
        Mr. Tanner. I think that the 50 percent question currently
    is an open question under the law.
        Mr. Scott. Would you preclear a district, 49 percent that
    had been--where the African American community elected a
    candidate of its choice, and the submission has two districts
    where the community cannot elect candidates of its choice;
    would you preclear that?
        Mr. Tanner. I do not believe that I would.
        Mr. Scott. Okay. Now----
        Mr. Tanner. I should stress that each of the submissions is
    decided on its own facts and the law at that time.
        Mr. Scott. Well I'm asking you if it was submitted this
    afternoon, would you preclear it?
        Mr. Tanner. No.
        Mr. Scott. If the minority community can't elect a
    candidate of its choice on its own, but is reliably a part of a
    coalition that does elect the candidates and the coalition
    cannot elect candidates without overwhelming support from the
    minority community, and that submission dismantled that
    district, would you--it is called an influence or coalition
    district--would you preclear that?
        Mr. Tanner. I think as we get into different issues about
    the facts of a specific case and the reliability of coalitions
    is going to affect the decision making. But the law clearly
    bans a retrogression in minority voting districts.
        Mr. Scott. And you would count a coalition district going
    to a district where there is no influence as retrogression?
        Mr. Tanner. I think a plan that reduces minority voting
    strength is going to be objectionable.
        Mr. Scott. Okay. Now, do I understand that the voting
    rights section of the Civil Rights Division is subject to an
    employment discrimination--a pending employment discrimination
    complaint?
        Mr. Tanner. I would be very happy to discuss personnel
    matters with the Committee in an appropriate forum. Obviously
    there are important privacy interests involved.
        Mr. Scott. Is that a ``yes''?
        Mr. Tanner. It means that I would be very happy to discuss
    such issues in an appropriate forum.
        Mr. Scott. Well, can you state whether or not partisan
    politics was illegally involved in employment decisions that
    are subject to those--that are the subject of those
    complaints--whether or not partisan political considerations
    were illegally involved in employment decisions in your
    division?
        Mr. Tanner. In the Voting Section, they have not been a
    factor at all in my watch.
        Mr. Scott. Now, you have apologized for those bizarre
    remarks. Following up from the comments from Mr. Ellison, after
    all is said and done, is it your position that the voter ID
    laws do or do not have disparate impact on African Americans?
        Mr. Tanner. I think that each State and each law must be
    looked at--and I have to keep an open mind on. In Georgia, the
    facts showed the absence of discrimination, the Federal court
    found an absence of racial discrimination, and the case has
    been dismissed.
        Mr. Scott. The case was dismissed after they changed the
    law after the first submission; is that right?
        Mr. Tanner. The case was dismissed after that. But prior to
    that, they found the absence of----
        Mr. Scott. Can you fail to preclear something without
    signoffs from higher-ups?
        Mr. Tanner. Yes. I have the authority to preclear voting
    changes without signoff from anyone else.
        Mr. Scott. Now as I understand it, the Georgia case, four
    of the five members from the team recommended disapproval. Is
    that right?
        Mr. Tanner. I believe--I understand that there have been
    public comments to that effect.
        Mr. Scott. Public comments say that Mr. Berman, Ms.
    Zabrisky, Ms. Moss, Mr. Moore, all recommended ``no.'' And Mr.
    Rogers recommended ``yes.'' Is that right?
        Mr. Tanner. I can only speak to the public comments.
        Mr. Scott. The public comments also say that Mr. Berman had
    been working in the division for 28 years; Ms. Zabrisky, 5 to 6
    years; Mr. Moore, 5 years; Ms. Moss, 3 years. Is that about
    right?
        Mr. Tanner. I don't know.
        Mr. Scott. And--well, if you don't deny it, then it--and
    Mr. Rogers, how long had he been working for the division?
        Mr. Tanner. A short period.
        Mr. Scott. Three months?
        Mr. Tanner. I don't know the precise time.
        Mr. Scott. I just have one further question, Mr. Chairman.
    And that is, did you have an awards ceremony where everybody in
    your division but two received an award?
        Mr. Tanner. No.
        Mr. Scott. Have virtually all--did Mr. Rogers receive an
    award, an on-the-spot award?
        Mr. Tanner. I have heard that.
        Mr. Scott. And were the other people who disagreed with the
    Georgia decision reprimanded?
        Mr. Tanner. No.
        Mr. Scott. Thank you, Mr. Chairman.
        Mr. Nadler. Thank you. We have to go vote now. I want to
    thank Mr. Tanner for his testimony. We have three votes. We
    will come back probably in about 15 minutes. Since we have
    another Committee following this, I urge everyone on the
    Subcommittee to return. As soon as we get to the last vote on
    the floor, we'll hear the second panel. Thank you.
        The Committee stands in recess.
        [Recess.]
        Mr. Nadler. I thank the Members for returning, those who
    have. The hearing of the Subcommittee will resume. And we will
    begin by my introducing the Members of the second panel.
        First is Laughlin McDonald. Since 1972, Laughlin McDonald
    has directed the Voting Rights Project with the American Civil
    Liberties Union in Atlanta, Georgia. Before that he taught at
    the University of North Carolina Law School and practiced law,
    specializing in voting rights and discrimination cases. He has
    argued cases before the U.S. Supreme Court, testified
    frequently before Congress, including this Subcommittee, and
    written for scholarly and popular publications on civil
    liberties issues. His most recent book is A Voting Rights
    Odyssey: Black Enfranchisement in Georgia.
        Toby Moore, Dr. Moore, served as a political geographer and
    redistricting expert for the Voting Section of the Civil Rights
    Division of the Department of Justice from 2000 to 2006. In
    that position Dr. Moore analyzed local and State voting systems
    under the Voting Rights Act and other legislation and supported
    the Department litigation efforts. He also monitored the
    conduct of elections and negotiated redistricting agreements,
    winning three Department of Justice merit awards for his work.
    Following his government service, Dr. Moore served as project
    manager at the Center for Democracy and Election Management,
    developing a reform agenda for the Commission on Federal
    Election Reform, chaired by President Carter and former
    Secretary of State James Baker. He is the author of numerous
    scholarly papers and presentations on voting and elections
    issues.
        Bob Driscoll is a partner of the Washington, D.C. office of
    Alston and Bird, with a diverse practice, focusing on, among
    other things, civil rights matters, including assisting with a
    preclearance of a State redistricting plan under section 5 of
    the Voting Rights Act. From 2001 to 2003, Mr. Driscoll served
    as Deputy Assistant Attorney General and Chief of Staff for the
    Civil Rights Division of the United States Department of
    Justice. In addition, Mr. Driscoll served as Commissioner of
    the Brown v. Board of Education 50th Anniversary Commission, a
    commission created by statute to commemorate that landmark
    decision.
        Julie Fernandes is a senior policy analyst and senior
    counsel at the Leadership Conference of Civil Rights, the
    Nation's oldest, largest, and most diverse civil and human
    rights coalition. As Members of this Committee will no doubt
    recall that in 2006, Ms. Fernandes was active in the civil
    rights community's successful effort in support of the
    reauthorization of the Voting Rights Act of 1965.
        Before joining the leadership conference Ms. Fernandes
    served as a trial attorney general in the Civil Rights Division
    of the Department of Justice and was counsel to Assistant
    Attorney General For Civil Rights, Bill Lann Lee.
        Mr. Nadler. As a reminder, your written statements will be
    made part of the record in its entirety. I would ask that you
    now summarize your testimony in 5 minutes or less. To help you
    stay within that time, there is a timing light at your table.
    When the 1-minute light remains, the light will switch from
    green to yellow, and then red when the 5 minutes are up.
        Before we begin, it's customary for the Committee to swear
    in its witnesses. If you could please stand and raise your
    right hand to take the oath.
        [Witnesses sworn.]
        Mr. Nadler. Thank you. Let the record reflect that each of
    the witnesses answered in the affirmative. You may be seated.
        Mr. McDonald with--I don't know why it's in this order.
    It's not the order you see it in. But, Mr. McDonald, you may
    begin.

        TESTIMONY OF LAUGHLIN McDONALD, DIRECTOR, VOTING RIGHTS
      PROJECT, SOUTHERN REGIONAL OFFICE, AMERICAN CIVIL LIBERTIES
                              UNION (ACLU)

        Mr. McDonald. Mr. Chairman, Members of the Committee.
        Mr. Nadler. Can you use your mike, please?
        Mr. McDonald. Is it on?
        Mr. Nadler. Now it is.
        Mr. McDonald. As we know, the Voting Section of the
    Department of Justice has a major role in protecting and
    enforcing voting rights. One of its most important duties is
    conducting administrative review of voting changes in
    jurisdictions governed by section 5 of the Voting Rights Act.
    But, unfortunately, recent revelations of partisan bias in its
    decision making seriously undermine the section's enforcement
    of section 5. Partisan bias breeds a lack of confidence and
    trust in the section. Indeed, it creates a lack of confidence
    in section 5 itself. It's a signal that partisanship may trump
    racial fairness and thus increase the likelihood that
    minorities will be manipulated to advance partisan goals. And
    it also shifts the burden of proof and enforcing voting rights
    to those who have been the victims of discrimination in
    contravention of the intent of Congress in passing the original
    Voting Rights Act of 1965.
        And one recent example of partisan bias affecting Voting
    Section decision making is the preclearance of Georgia's photo
    ID law. In 2005 the legislature, in a vote that was sharply
    divided on both racial and partisan lines, passed a bill that
    required a person voting at the polls to present one of six
    specified forms of government-issued photo ID. Those who didn't
    have one would have to purchase one at the cost of $10. That
    was later raised to $20. The stated purpose of the bill was to
    prevent, quote, voter fraud, end quote. But not only was there
    no evidence whatever of fraudulent in-person voting, but there
    were already sufficient criminal statutes on the books that
    could deal with the problem, which was not in fact a problem.
        The photo ID requirement would also have an adverse impact
    upon minorities, the elderly, the disabled and the poor. Cathy
    Cox, the former Secretary of State, has found that nearly
    700,000 Georgians who were registered to vote lacked a driver's
    license, which is the most commonly available form of photo ID.
    She also has found that voters who lacked photo ID were
    disproportionately elderly and minority.
        Today in 2007, the State's own figures show that 50 percent
    of those on the voter registration list who do not have a
    driver's license or Department of Drivers Services photo
    identification are African Americans. There are 22 counties
    that held special elections in 2007, and 58 percent of those on
    the voter registration list who did not have a driver's license
    or identification were Black. Aside from its impact, there's
    also evidence that the photo ID law had been enacted with a
    discriminatory purpose.
        Representative Sue Burmeister from Augusta, a chief sponsor
    of the bill, told staff members in the Voting Section that if
    Black people in her district, quote, are not paid to vote, they
    don't go to the polls, end quote. And if fewer Blacks voted as
    a result of the photo ID requirement, it, quote, will only be
    because there is less opportunity for fraud.
        The Department of Justice approved Georgia's photo ID bill
    despite the near unanimous recommendation of the career staff
    to object. And according to newspaper accounts, one of those
    who played a central role in overriding the recommendation of
    the career staff was Hans von Spakovsky, a Bush appointee and
    counsel to the Assistant Attorney General for Civil Rights. The
    staff recommendation was not only overridden, but the
    leadership of the Voting Section instituted a new rule
    prohibiting the career staff from making recommendations in the
    future whether or not to object to proposed voting changes.
    This was a reversal of long standing section policy and has the
    effect of marginalizing the career staff with their experience
    and expertise in administering section 5. And also,
    unfortunately, it would be easier now to make partisan-driven
    decisions by not having to override the recommendations of the
    staff.
        Not just the newspaper articles have made such reports but
    Joseph Rich, who served as chief of the Voting Section from
    1999 to 2005, described the failure to object to the Georgia
    photo ID bill as quote, the brazen insertion of partisan
    politics into the decision making under section 5, end quote.
    And Rich's comments were echoed by Bob Kingle, a lawyer who
    spent 20 years in the Civil Rights Division and served as
    Deputy Chief of the Voting Section.
        Notably in 1994, Deval Patrick, the then-Assistant Attorney
    General in the Civil Rights Division, objected to a similar
    photo ID requirement from Louisiana. He concluded the State
    failed to carry its burden of proof, that the change would not
    have a retrogressive impact upon minority voters.
        And let me just conclude by saying that the Department of
    Justice's preclearance of Georgia's photo ID law and its
    continuing support of that decision undermine seriously the
    effective enforcement of the Voting Rights Act.
        Mr. Nadler. Are you finished?
        Mr. McDonald. I'm finished Mr. Chair.
        Mr. Nadler. I thank the gentleman.
        [The prepared statement of Mr. McDonald follows:]
                    Prepared Statement of Laughlin McDonald
        Mr. Chairman and members of the committee, thank you for inviting
    me to testify about the Voting Section of the Civil Rights Division of
    the Department of Justice. I would like to focus my remarks primarily
    on the role of the Voting Section in enforcing the special preclearance
    provisions of Section 5 of the Voting Rights Act.
        To put my remarks in context, I have been the director of the
    ACLU's Voting Rights Project since 1972. As part of our work, we have
    brought litigation to enforce equal voting rights on behalf of racial
    and language minorities. During the recent hearings on extension and
    amendment of the Voting Rights Act, we submitted a report to Congress
    of the more than 290 voting cases we had been involved in since the
    last extension of Section 5 in 1982.\1\ That report, along with
    substantial other evidence before Congress, documented that
    discrimination in voting is not a thing of the past but a continuing
    problem.
    ---------------------------------------------------------------------------
        \1\ The Case for Extending and Amending the Voting Rights Act:
    Voting Rights Litigation, 1982-2006 (ACLU; March 2006).
    ---------------------------------------------------------------------------
        The Voting Rights Project has had direct contact with the Voting
    Section over the years involving Section 5 submissions. We have also
    participated with the Voting Section in vote dilution litigation
    brought under Section 2 of the Voting Rights Act, most recently in
    Charleston, South Carolina, on behalf of African Americans, and Blaine
    County, Montana, on behalf of American Indians.\2\ I have gotten to
    know many of the staff members of the Voting Section and have great
    respect for them and the work they have done. But unfortunately, recent
    revelations of partisan bias in the decision making of the Voting
    Section seriously undermine voting rights enforcement in this country.
    ---------------------------------------------------------------------------
        \2\ United States v. Charleston County and Moultrie v. Charleston
    County Council, 365 F.3d 341 (4th Cir. 2004); United States v. Blaine
    County, Montana, 363 F.3d 897 (9th Cir. 2004).
    ---------------------------------------------------------------------------
        The Voting Section has a unique and major role in protecting voting
    rights. Aside from conducting administrative review of voting changes
    in jurisdictions covered by Section 5, it enforces the requirement that
    certain jurisdictions provide bilingual material and other assistance
    in voting to language minorities. It certifies jurisdictions for the
    assignment of federal observers to monitor elections. It undertakes
    investigations and litigation throughout the United States. It has the
    largest staff and resources of any entity in the country committed to
    protecting voting rights. It enforces the National Voter Registration
    Act, the Help American Vote Act, and the Uniformed and Overseas
    Citizens Absentee Voting Act. And, it defends against challenges to the
    constitutionality of the various voting rights laws enacted by
    Congress.
        The revelations of partisan bias in the Voting Section's decision
    making, however, breed a lack of confidence and trust in the section.
    Partisan bias undermines the section's effectiveness. It calls into
    question the section's decisions about what to investigate and what
    kind of cases to bring. It calls into question the section's decisions
    about where and why to assign federal observers. It creates a lack of
    confidence in Section 5 itself and the other special provisions of the
    Voting Rights Act. It is a clear signal that partisanship can trump
    racial fairness, and thus increases the likelihood that minorities will
    be manipulated to advance partisan goals. It also shifts the burden of
    enforcing voting rights upon those who have been the victims of
    discrimination and who have the least resources to remedy it.
        Congressional oversight is critical to restoring public trust and
    confidence in the Voting Section of the Department of Justice, and
    insuring that the nations's voting laws are fairly and adequately
    enforced.
        One recent example of partisan bias infecting Voting Section
    decision making is the preclearance of Georgia's photo ID law. In 2005,
    the Georgia legislature, in a vote sharply divided on racial and
    partisan lines, passed a new voter identification bill which had the
    dubious distinction of being one of the most restrictive in the United
    States. To vote in person--but not by absentee ballot--a voter would
    have to present one of six specified forms of government issued photo
    ID.\3\ Those without such an ID would have to purchase one at a cost of
    $10 (later raised to $20). The stated purpose of the bill was to
    prevent ``voter fraud,'' \4\ but not only were there laws already on
    the books that made voter fraud a crime, there was no evidence of
    fraudulent in-person voting to justify the stringent photo ID
    requirement.
    ---------------------------------------------------------------------------
        \3\ I.e., a Georgia driver's license, a Georgia ID card, a U.S.
    passport, a government employee ID card, a military ID, or a tribal ID.
    O.C.G.A. Sec. 21-2-417.
        \4\ Common Cause v. Billups, 406 F.Supp.2d 1326, 1361 (N.D. Ga.
    2005).
    ---------------------------------------------------------------------------
        The new requirement would also have an undeniable adverse impact
    upon minorities, the elderly, the disabled, and the poor.
        The League of Women Voters and the American Association of Retired
    Persons estimated that 152,664 people over the age of 60 who voted in
    the 2004 presidential election did not have a Georgia driver's license
    and were unlikely to have other photo ID.\5\ Governor Sonny Perdue
    himself estimated that approximately 300,000 voting age Georgians did
    not have a driver's license or state issued ID card.\6\ It was
    subsequently shown that 300,000 registered voters lacked a driver's
    license or state issued photo ID.\7\ Getting a photo ID would not only
    burden those individuals, but would place a special burden on those
    living in retirement communities, assisted living facilities, and in
    rural areas. The problem was exacerbated further by the fact that while
    the state has 159 counties, there were only 56 Department of Motor
    Vehicle offices that issued drivers licenses or photo IDs, none of
    which were located in the City of Atlanta.\8\
    ---------------------------------------------------------------------------
        \5\ Id. at 1334.
        \6\ Department of Justice, Voting Section, Section 5
    Recommendation: August 25, 2005, p. 20.
        \7\ ``Lawyers: State misinforms voters,'' Athens Banner-Herald,
    October 17, 2006.
        \8\ Section 5 Recommendation: August 25, 2005, p. 10.
    ---------------------------------------------------------------------------
        According to the 2000 census, blacks in Georgia were nearly five
    times more likely not to have access to a motor vehicle than whites,
    and would thus be less likely to have a driver's license or access to
    transportation to purchase a photo ID. The disproportionate impact of
    the photo ID bill on African American voters was clear, but that was
    apparently the reason some white legislators supported the measure.
    Representative Sue Burmeister (R-Augusta), a sponsor of the photo ID
    bill, advised officials in the Voting Section of the Department of
    Justice that ``if there are fewer black voters because of this bill, it
    will only be because there is less opportunity for fraud. She said that
    when black voters in her black precincts are not paid to vote, they do
    not go to the polls.'' \9\ Burmeister was later quoted to the same
    effect in a local newspaper, that if black people in her district ``are
    not paid to vote, they don't go to the polls,'' and if fewer blacks
    voted as a result of the photo ID bill it would only be because it
    ended voter fraud.\10\
    ---------------------------------------------------------------------------
        \9\ Id., p. 6.
        \10\ ``Georgia voter ID memo stirs tension,'' The Oxford Press,
    November 18, 2005.
    ---------------------------------------------------------------------------
        Black members of the legislature were strongly opposed to the photo
    ID bill. During the legislative debate Senator Emmanuel Jones (D-
    Decatur) wore shackles to the well of the Senate, and Representative
    Alisha Thomas Morgan (D-Austell) brought shackles to the well of the
    House in protest over the bill's potential to suppress the black
    vote.\11\
    ---------------------------------------------------------------------------
        \11\ ``ID Bill Could Make Georgia Unique in Turn Away Voters,'' The
    Macon Telegraph, March 19, 2005; ``Firebrand `Standing Up': Legislator
    Makes no Apologies for her Convictions,'' The Atlanta Journal-
    Constitution, March 24, 2005.
    ---------------------------------------------------------------------------
        Secretary of State Cathy Cox wrote to Governor Perdue on April 8,
    2005, and urged him not to sign the photo ID bill into law. ``I cannot
    recall one documented case of voter fraud during my tenure as Secretary
    of State or Assistant Secretary of State that specifically related to
    the impersonation of a registered voter at voting polls,'' she said. In
    her judgment the bill ``creates a very significant obstacle to voting
    on the part of hundreds of thousands of Georgians, including the poor,
    the infirm and the elderly who do not have drivers licenses because
    they are either too poor to own a car, are unable to drive [a] car, or
    have no need to drive a car.'' She described the justification for the
    bill as a measure to combat voter fraud as ``a pretext.'' \12\ Despite
    his acknowledgment that hundreds of thousands of Georgians did not have
    a drivers license or ID card, Perdue signed the photo ID bill into law.
    ---------------------------------------------------------------------------
        \12\ Common Cause, 406 F.Supp.2d at 1333-34.
    ---------------------------------------------------------------------------
        A recent study by Prof. Lorraine C. Minnite of Department of
    Justice records shows that between 2002 and 2005, only 24 people
    nationwide were convicted or pleaded guilty to federal charges of
    illegal voting. This number includes 19 people who were ineligible to
    vote, five who were under supervision for felony convictions, 14 who
    were not U.S. citizens, and five who voted twice in the same election.
    The report further found that the available state-level evidence of
    voter fraud, while not definitive, ``is also negligible.'' Prof.
    Minnite concluded that ``[t]he claim that voter fraud threatens the
    integrity of American elections is itself a fraud.'' \13\
    ---------------------------------------------------------------------------
        \13\ Lorraine C. Minnite, The Politics of Voter Fraud (Washington,
    D.C.; Project Vote, 2007), 5, 8-9.
    ---------------------------------------------------------------------------
        The New York Times similarly reported that five years after the
    current administration launched a Ballot Access and Voting Integrity
    Initiative in 2002, it had turned up virtually no evidence of any
    organized effort to skew or corrupt federal elections.\14\ While there
    were a few instances of individual wrongdoing, most were the result of
    confusion about eligibility to vote. And most of those charged were
    Democrats.
    ---------------------------------------------------------------------------
        \14\ ``In 5-Year Effort, Scant Evidence of Voter Fraud,'' The New
    York Times, April 12, 2007.
    ---------------------------------------------------------------------------
        The United States Elections Assistance Commission (EAC) issued a
    report in December 2006, in which it also concluded that many of the
    allegations of voter fraud made in reports and books it analyzed ``were
    not substantiated,'' even though they were often cited as evidence of
    fraud. Overall, the report found ``impersonation of voters is probably
    the least frequent type of fraud because it is the most likely type of
    fraud to be discovered, there are stiff penalties associated with this
    type of fraud, and it is an inefficient method of influencing an
    election.'' \15\
    ---------------------------------------------------------------------------
        \15\ United States Elections Assistance Commission, Election
    Crimes: An initial Review and Recommendations for Future Study
    (Washington, D.C.; December 2006), 9, 16.
    ---------------------------------------------------------------------------
        Georgia submitted its new photo ID bill for preclearance under
    Section 5 of the Voting Rights Act,\16\ and the Department of Justice
    approved it on August 26, 2005, despite the near unanimous
    recommendation by the career staff (4 out of 5) to object. The
    recommendation concluded that ``the state has failed to meet its burden
    of proof to demonstrate that [the photo ID bill] does not have the
    effect of retrogressing minority voting strength.'' \17\
    ---------------------------------------------------------------------------
        \16\ 42 U.S.C. Sec. 1973c.
        \17\ Section 5 Recommendation: August 25, 2005, p. 20.
    ---------------------------------------------------------------------------
        One of those who played a central role in overriding the
    recommendation of the career staff was Hans von Spakovsky, a Bush
    appointee and counsel to the Assistant Attorney General for Civil
    Rights.\18\ According to The Washington Post, ``[c]areer Justice
    Department lawyers involved in a Georgia case said von Spakovsky pushed
    strongly for approval of a state program requiring voters to have photo
    identification,'' and that the recommendation of staff lawyers to
    object to the state's submission ``was overruled by von Spakovsky and
    other senior officials in the Civil Rights Division.'' \19\
    ---------------------------------------------------------------------------
        \18\ ``Official's Article on Voting Law Spurs Outcry,'' The
    Washington Post, April 13, 2005.
        \19\ ``Bush Picks Controversial Nominees for FEC,'' The Washington
    Post, December 17, 2005.
    ---------------------------------------------------------------------------
        While employed in the Voting Section, Von Spakovsky had previously
    written an article for the Texas Review of Law & Politics, using the
    pseudonym ``Publius,'' in which he strongly endorsed photo ID
    requirements. He scoffed at the critics of photo IDs and dismissed the
    evidence of discriminatory impact against minority groups, such as
    African-Americans, as ``merely anecdotal'' and ``unsubstantiated.'' One
    of his recommendations was to ``require all voters to present photo
    identification at their precinct polling locations.'' \20\ There does
    not appear to be a benign explanation for von Spakovsky's anonymity.
    Instead, it seems designed to prevent the public and those with
    business before the Voting Section from knowing the views of one of the
    senior officials involved in the preclearance process.
    ---------------------------------------------------------------------------
        \20\ Publius, ``Securing the Integrity of American Elections: The
    Need for Change,'' 9 Texas Review of Law & Politics 278, 289-300
    (2005).
    ---------------------------------------------------------------------------
        Not only was there evidence that the Georgia photo ID bill had been
    enacted with a discriminatory purpose, i.e., to suppress the minority
    vote, but its effect would clearly be retrogressive within the settled
    meaning of Section 5.\21\ In any event, the career staff's entirely
    defensible conclusion that the state had failed to carry its burden of
    showing the absence of a discriminatory effect was overridden.
    ---------------------------------------------------------------------------
        \21\ A voting change has a discriminatory effect under Section 5 if
    it makes minorities worse off than under the preexisting rule or
    practice. Beer v. United States, 425 U.S. 130, 141 (1976).
    ---------------------------------------------------------------------------
        The staff recommendation was not only overridden, but the
    leadership of the Voting Section instituted a new rule prohibiting the
    career staff from making recommendations in the future whether or not
    to object to proposed voting changes.\22\ This was a reversal of long
    standing section policy and marginalized the career staff with its
    experience and expertise in administering Section 5. But it would
    obviously be easier to make partisan driven decisions by not having to
    override the recommendations of the career staff.
    ---------------------------------------------------------------------------
        \22\ ``Staff Opinions Banned in Voting Rights Cases,'' The
    Washington Post, December 10, 2005. See also Joseph D. Rich, Mark
    Posner and Robert Kengle, ``The Voting Section,'' in The Erosion of
    Rights: Declining Civil Rights Enforcement under the Bush
    Administration, ed. William L. Taylor, et al. (Wash., D.C.; Citizens'
    Commission on Civil Rights, 2007), 38.
    ---------------------------------------------------------------------------
        Notably, in 1994 Deval L. Patrick, the then Assistant Attorney
    General in the Civil Rights Division, objected to a photo ID
    requirement from Louisiana essentially identical to the one from
    Georgia. Based upon evidence that ``black persons are four to five
    times less likely than white persons in the state to possess a driver's
    license or other picture identification card,'' Patrick concluded the
    state failed to carry its burden of proof that the change would not
    have retrogressive impact upon minority voters.\23\
    ---------------------------------------------------------------------------
        \23\ Deval L. Patrick, Assistant Attorney General, to Sheri Marcus
    Morris, Assistant Attorney General, November 21, 1994.
    ---------------------------------------------------------------------------
        Shortly before DOJ precleared the Georgia photo ID bill, the
    legislature passed a new law increasing the fee for a five year photo
    ID card to $20, and a ten years card to $35.\24\ On September 2, 2005,
    the ACLU wrote a letter to John Tanner, the Chief of the Voting
    Section, noting that the fee increase imposed yet an additional and
    disparate burden upon racial and language minorities, and warranted a
    reconsideration of the preclerance decision. The ACLU also pointed out
    that the changes were being implemented absent compliance with Section
    5 and their further use should be enjoined.\25\ Tanner declined to take
    any action and, despite the obvious impact the new law would have on
    minority voting rights, said in response that the amount a state
    charged for a drivers license was not ``a change affecting voting
    within the meaning of [Section 5].'' \26\ Such logic was explicitly
    rejected by the Supreme Court in its 1966 decision invalidating
    Virginia's poll tax for state elections. The Court acknowledged a state
    could charge a fee for drivers and other kinds of licenses, but
    rejected the argument that payment of any fee for voting was
    constitutional.\27\ The increase in the fee for a document required by
    the state to vote was in fact a change affecting voting.
    ---------------------------------------------------------------------------
        \24\ O.C.G.A. Sec. 40-5-103(a).
        \25\ Laughlin McDonald, ACLU Southern Regional Office, to John
    Tanner, Chief, Voting Section, September 2, 2005.
        \26\ John Tanner, Chief, Voting Section, to Laughlin McDonald, ACLU
    Southern regional Office, October 11, 2005.
        \27\ Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 668
    (1966).
    ---------------------------------------------------------------------------
        Joseph Rich, who served as Chief of the Voting Section from 1999-
    2005, in testimony before a congressional committee described the
    failure to object to the Georgia photo ID bill as ``the brazen
    insertion of partisan politics into the decision-making under Section
    5.'' \28\ Rich's comments were echoed by Bob Kengle, a lawyer who spent
    twenty years in the Civil Rights Division and served as Deputy Chief of
    the Voting Section. He left the section in 2005, he said, after
    reaching a ``personal breaking point'' precipitated by ``institutional
    sabotage . . . from political appointees,'' ``partisan favoritism,''
    and the Administration's ``notorious'' Georgia Section 5 decision and
    its pursuit of ``chimerical suspicions of vote fraud.'' \29\
    ---------------------------------------------------------------------------
        \28\ Testimony of Joseph D. Rich, Oversight Hearing of the Civil
    Rights Division, House Judiciary Subcommittee on the Constitution,
    Civil Rights and Civil Liberties, March 22, 2007.
        \29\ Bob Kengle, ``Why I Left the Civil Rights Division.''
    ---------------------------------------------------------------------------
        The Voting Section has failed to object to other discriminatory
    voting changes, including 2001 legislative redistricting in South
    Dakota. The boundaries of District 27 that included Shannon and Todd
    Counties, which are covered by Section 5, were only slightly altered,
    but the demographic composition of the district was substantially
    changed. American Indians were 87% of the population of District 27
    under the 1991 plan, and the district was one of the most
    underpopulated in the state. Under the 2001 plan, Indians were 90% of
    the population, while the district was one of the most overpopulated in
    the state. The new plan was more than arguably retrogressive within the
    meaning of Section 5 because it ``packed,'' or over-concentrated,
    Indians compared to the pre-existing plan. Packing is one of the
    recognized methods of diluting minority voting strength.\30\ The
    Department of Justice, however, precleared the new plan under Section
    5. Tribal members subsequently challenged the plan under Section 2 and
    the court, making detailed and lengthy findings of past and continuing
    discrimination against Indians, invalidated it as diluting Indian
    voting strength.\31\
    ---------------------------------------------------------------------------
        \30\ Voinovich v. Quilter, 507 U.S. 146, 153-54 (1993).
        \31\ Bone Shirt v. Hazeltine, 336 F.Supp.2d 976, 987-1017 (D. S.D.
    2004).
    ---------------------------------------------------------------------------
        A challenge to the Georgia photo ID law was filed by a coalition of
    groups, the response to which underscored how sharply polarizing the
    new law was. Former President Jimmy Carter called the law a ``disgrace
    to democracy,'' and said ``it is highly discriminatory and, in my
    personal experience, directly designed to deprive older people,
    African-Americans and poor people of a right to vote.'' House Speaker
    Glenn Richardson (R-Hiram), however, called the lawsuit ``ludicrous''
    and an example of ``liberal special interests using unconscionable
    scare tactics to frighten Georgia voters.'' \32\
    ---------------------------------------------------------------------------
        \32\ ``Suit slams voter ID law,'' The Atlanta Journal-Constitution,
    September 20, 2005.
    ---------------------------------------------------------------------------
        On October 18, 2005, the federal court preliminarily enjoined use
    of the photo ID law on the grounds that it was in the nature of a poll
    tax, as well as a likely violation of the equal protection clause of
    the Fourteenth Amendment. The court expressly found the law ``is most
    likely to prevent Georgia's elderly, poor, and African-American voters
    from voting.'' \33\
    ---------------------------------------------------------------------------
        \33\ Common Cause, 406 F.Supp.2d at 1365.
    ---------------------------------------------------------------------------
        The court also noted that the Virginia poll tax invalidated by the
    Supreme Court was $1.50, while the fee for a photo ID for voting in
    Georgia was $20. The fee could be waived if a voter signed an affidavit
    that he or she was indigent and could not pay the $20, but the court
    concluded the waiver ``does not reduce the burden that the Photo ID
    requirement imposes on the right to vote.'' \34\
    ---------------------------------------------------------------------------
        \34\ Common Cause, 406 F.Supp.2d at 1364.
    ---------------------------------------------------------------------------
        A recent survey sponsored by the Brennan Center for Justice at the
    NYU School of Law concluded that 25% of African-American citizens of
    voting age have no current government issued photo ID, compared to 8%
    of white citizens of voting age.\35\ Based on the 2000 census, this
    amounts to more than 5.5 million African American adult citizens
    without photo ID. The effect of photo ID laws in suppressing black--and
    thus Democratic--political participation is apparent. The survey also
    shows that the elderly and the poor are similarly adversely affected by
    photo ID requirements.
    ---------------------------------------------------------------------------
        \35\ Citizens without Proof: A Survey of Americans' Possession of
    Documentary Proof of Citizenship and Photo Identification, Brennan
    Center for Justice at NYU School of Law, November 2006.
    ---------------------------------------------------------------------------
        Cathy Cox released a report in June 2006, based on a comparison of
    the state's files of registered voters and persons issued valid
    driver's licenses. The study found nearly 700,000 Georgians who were
    registered to vote lacked a drivers license, the most commonly
    available form of photo ID for in-person voting. The study, Cox said,
    ``provides powerful new evidence that supports the objections I've
    raised against the photo ID requirement from the outset--that huge
    numbers of Georgians are in jeopardy of being shut out of the voting
    process and having their voices silenced.'' \36\ Cox issued another
    press release on June 23, 2006, that the voters who lacked a photo ID
    were disproportionately elderly and minority.\37\
    ---------------------------------------------------------------------------
        \36\ News Release from Cathy Cox, June 19, 2006.
        \37\ Common Cause/Georgia v. Billups, 504 F.Supp.2d 1333, 1361
    (N.D. Ga. 2007).
    ---------------------------------------------------------------------------
        Despite its grant of a preliminary injunction, the district court
    ultimately dismissed the complaint in the Georgia case concluding none
    of the plaintiffs had standing, the state was not required to document
    ``in-person voter fraud exist[s] in Georgia,'' the burden the law
    imposed on voters was not ``significant,'' and the photo ID requirement
    was ``rationally related'' to a legitimate state interest.\38\ The
    plaintiffs have filed a notice of appeal.
    ---------------------------------------------------------------------------
        \38\ Id. at 1377, 1381.
    ---------------------------------------------------------------------------
        John Tanner, in recent remarks before the National Latino Congreso
    in Los Angeles, defended the preclearance of Georgia's photo ID law by
    claiming in ``Georgia, the fact was and the court found that it was not
    racially discriminatory. That was the finding of the initial court.''
    \39\ The court, however, made no such finding. It did not reach the
    merits of plaintiffs' claim that the law violated the racial fairness
    provisions of Section 2 of the Voting Rights Act, but instead said it
    ``reserves a final ruling on the merits of that claim for a later
    date.'' \40\ Even in its final opinion on the merits, the court did not
    rule on the plaintiffs' Section 2 race discrimination claim.
    ---------------------------------------------------------------------------
        \39\ TPMmuckraker.com, ``DoJ Vote Chief Argues Voter ID Laws
    Discriminate against Whites,'' October 9, 2007.
        \40\ Common Cause, 406 F.Supp.2d at 1375.
    ---------------------------------------------------------------------------
        Tanner also claimed ``the minorities in Georgia statistically,
    slightly, were more likely to have ID'' than whites.\41\ Again, he was
    wrong. He was apparently relying on figures compiled by the Georgia
    Department of Driver Services (DDS), which were recited in an October
    7, 2005, letter from William E. Moschella, Assistant Attorney General,
    to Sen. Christopher S. Bond, responding to questions about the
    department's preclearance of the Georgia photo ID law. According to
    Moschella, ``DDS has racial data on nearly 60 percent of its license
    and identification holders. Of those individuals, 28 percent are
    African-American, a percentage slightly higher than the African-
    American percentage of the voting age population in the Georgia.''
    Those numbers, however, say nothing about those who did not possess a
    DDS license or identification, nor the 40% of those on the DDS list who
    were not racially identified.
    ---------------------------------------------------------------------------
        \41\ ``DoJ Vote Chief Argues Voter ID Laws Discriminate against
    Whites.''
    ---------------------------------------------------------------------------
        But more to the point, Tanner failed to note that the Georgia
    Secretary of State compared the state voter registration list with the
    DDS list and concluded that 49.75% of those on the voter registration
    list who did not have a DDS license or identification were black. In
    the 22 counties holding special elections in 2007, 57.92% of those on
    the voter registration list who did not have a DDS license or
    identification were black.\42\ The state's own figures thus show black
    voters are disproportionately affected by the photo ID requirement.
    ---------------------------------------------------------------------------
        \42\ Common Cause/Georgia, Def. Ex. 35.
    ---------------------------------------------------------------------------
        Other states have also adopted photo ID requirements for in person
    voting. Indiana adopted such a law in 2005, which requires persons
    voting in person to present a valid photo ID issued by the United
    States or the State of Indiana. The law was challenged in federal court
    but was upheld by the district court. In a divided opinion, the Court
    of Appeals for the Seventh Circuit affirmed.\43\ Judge Evans, however,
    in a dissenting opinion, said ``the Indiana voter photo ID law is a
    not-too-thinly-veiled attempt to discourage election-day turnout by
    certain folks believed to skew Democratic.'' \44\ The majority opinion
    also acknowledged there is ``[n]o doubt most people who do not have
    photo ID are low on the economic ladder and thus, if they do vote, are
    more likely to vote for Democratic than Republican candidates,'' and
    that ``the new law injures the Democratic Party.'' \45\
    ---------------------------------------------------------------------------
        \43\ Crawford v. Marion County Election Board, 472 F.3d 949 (7th
    Cir. 2007).
        \44\ Id. at 954.
        \45\ Id. at 951.
    ---------------------------------------------------------------------------
        As Judge Evans further pointed out, the Indiana ``law will make it
    significantly more difficult for some eligible voters . . . to vote--
    and this group is mostly comprised of people who are poor, elderly,
    minorities, disabled, or some combination thereof.'' \46\ The majority
    opinion also conceded ``the Indiana law will deter some people from
    voting.'' \47\ Thus, the challenged law has the effect, and according
    to Judge Evans ``a not-too-thinly-veiled'' purpose, of discouraging
    voting by those believed to vote Democratic, and it will make it
    significantly more difficult for some voters, including racial
    minorities, to vote on election day.
    ---------------------------------------------------------------------------
        \46\ Id. at 955.
        \47\ Id. at 951.
    ---------------------------------------------------------------------------
        The stated rationale for the Indiana law, as was the case in
    Georgia, was ``to reduce voting fraud.'' \48\ But it was conceded by
    the state, and found by the lower court, that no one in the history of
    Indiana had ever been charged, much less convicted, of the crime of
    fraudulent in-person voting.\49\
    ---------------------------------------------------------------------------
        \48\ Id. at 952.
        \49\ Id. at 953, 955.
    ---------------------------------------------------------------------------
        The plaintiffs filed a petition for a writ of certiorari in the
    Indiana case, which was granted. Oral arguments will likely be heard
    next year. In the meantime, the parties in the Georgia photo ID case
    have requested the Eleventh Circuit to stay the appeal pending a final
    decision by the Supreme Court.
        Unfortunately, the history of voting in the United States is
    replete with other examples, similar to the photo ID laws in Georgia
    and Indiana, of efforts to disfranchise voters for partisan and racial
    reasons. And many of them have also masqueraded as attempts to prevent
    voter fraud, insure the integrity of the electoral process, or advance
    a reasonable state interest.
        Edward McCrady, a legislator and historian from Charleston, South
    Carolina, was the author of a number of stringent restrictions on
    voting adopted by the state legislature in 1882, including the infamous
    Eight Box Law which imposed the functional equivalent of a literacy
    test for voting.\50\ Eight separate ballot boxes, appropriately
    labeled, were provided for local, state, and national offices. In order
    to cast a valid ballot, each voter had to read the labels and put the
    ballot in the proper box. Although the McCrady laws were understood to
    be a legally acceptable way to dilute the black and Republican vote,
    McCrady touted them as good government election reform. He published a
    pamphlet the year before in which he urged a return to the limited
    franchise concept of the eighteenth century. ``Raise the standard of
    citizenship,'' he wrote, ``raise the qualifications of voters. But,
    raise them equally. If we are the superior race we claim to be, we,
    surely, need not fear the test.'' \51\ Governor John Gary Evans later
    urged the members of the South Carolina Constitutional Convention of
    1895 to enact a literacy test for voting, ``for only the intelligent
    are capable of governing.'' \52\ Other southern politicians of the
    post-Reconstruction era, including a future governor of Alabama,
    similarly touted restrictions on the franchise as a way to ``make
    permanent and secure honest and efficient government.'' \53\
    ---------------------------------------------------------------------------
        \50\ 1882 S.C. Acts 1115-120, No. 717.
        \51\ Edward McCrady, ``The Necessity for Raising the Standard of
    Citizenship and the Right of the General Assembly of the State of South
    Carolina to Impose Qualifications Upon Elections'' (1881), quoted in
    George Tindall, South Carolina Negroes 1877-1900 (Columbia: U. S.C.
    Press, 1952), 67.
        \52\ Evans, S.C. Con. Con. Journal (1895), 12, quoted in J. Morgan
    Kousser, Shaping of Southern Politics: Suffrage Restriction and the
    Establishment of the One-Party South, 1880-1910 (New Haven: Yale U.
    Press., 1975), 255.
        \53\ Mr. O'Neal, in Ala. Con. Con. Proceedings (1901), vol. 3, p.
    2780, quoted in Kousser (1975), 263.
    ---------------------------------------------------------------------------
        Restrictions on the franchise continued to gain support after the
    turn of the nineteenth century. Two historians did a survey of voting
    attitudes in 1918, and concluded ``the theory that every man has a
    natural right to vote no longer commands the support of students of
    political science.'' They believed ``if the state gives the vote to the
    ignorant, they will fall into anarchy to-day and into despotism
    tomorrow.'' \54\
    ---------------------------------------------------------------------------
        \54\ Charles Seymour and Donald Paige Frary, How the World Votes:
    The Story of Democratic Development in Elections, 2 volumes
    (Springfield, Mass.; C.A. Nichols Co., 1918), 1:12-13, 2: 320-21.
    ---------------------------------------------------------------------------
        The Supreme Court initially upheld poll taxes and literacy tests as
    good government measures.\55\ There is no dispute, however, that both
    were adopted by the ex-Confederate states as ``expedients to obstruct
    the exercise of the franchise by the negro race.'' \56\ In recognition
    of that fact, the Supreme Court later reversed itself and invalidated
    poll taxes, while Congress, by passage of the Voting Rights Act of
    1965, banned literacy and other test for voting because they had been
    adopted and administered with the discriminatory purpose of
    disfranchising minority voters.\57\
    ---------------------------------------------------------------------------
        \55\ See Breedlove v. Suttles, 302 U.S. 277, 283-84 (1937)
    (upholding Georgia's poll tax, enacted by Democrats in the aftermath of
    Reconstruction, as ``a familiar and reasonable regulation long enforced
    in many states''), and Lassiter v. Northhampton County Bd. of
    Elections, 360 U.S. 45, 54 (1959) (upholding North Carolina's literacy
    test for voting, first enacted by a Democratic controlled legislature
    in 1900, as ``designed to promote intelligent use of the ballot,'' and
    advancing ``the desire of North Carolina to raise the standards for
    people of all races who cast the ballot'').
        \56\ Ratliff v. Beale, 74 Miss. 247, 20 So. 865, 868-69 (1896).
        \57\ See Harper v. Virginia State Board of Elections, 383 U.S. 663,
    666 n.3 (1966) (invalidating Virginia's poll tax for state elections
    and noting ``[t]he Virginia poll tax was born of a desire to
    disenfranchise the Negro'') (quoting Harman v. Forssenius, 380 U.S.
    528, 543 (1965)); South Carolina v. Katzenbach, 383 U.S. 301, 333-34
    (1966) (the suspension of literacy tests in jurisdictions covered by
    Section 5 of the Voting Rights Act was appropriate because ``in most of
    the States covered by the Act . . . various tests and devices have been
    instituted with the purpose of disenfranchising Negroes, have been
    framed in such a way as to facilitate this aim, and have been
    administered in a discriminatory fashion for many years''). See also V.
    O. Key, Jr., Southern Politics in State and Nation (Knoxville: U. of
    Tenn. Press, 1984), 555 (the poll tax and literacy tests were ``legal
    means of accomplishing illegal discrimination'' against black voters).
    ---------------------------------------------------------------------------
        More than a century ago the Supreme Court described the right to
    vote as ``preservative of all rights.'' \58\ The white South understood
    that well enough, and in the years following Reconstruction
    disfranchised black voters as a way of depriving them of rights and
    maintaining white supremacy. Some of today's political office holders
    apparently believe that to maintain their dominance they too must
    suppress the minority vote. In doing so, they are repeating one of the
    most disgraceful chapters in our nation's history of voting rights.
    Unfortunately, the Department of Justice's preclearance of Georgia's
    photo ID law, and its continuing support of that decision, lend support
    to these modern disfranchising efforts.
    ---------------------------------------------------------------------------
        \58\ Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
    ---------------------------------------------------------------------------
                                   CONCLUSION

        The revelation of partisan bias in the Voting Section's decision
    making has seriously undermined voting rights enforcement in the
    country. It has created a lack of confidence and trust in the section,
    and has undermined its effectiveness. It has called into question the
    section's decisions about what to investigate, what kind of cases to
    bring, and where to assign federal observers. As important, it has
    created a lack of confidence in Section 5 and the other special
    provisions of the Voting Rights Act, and increased the likelihood that
    minorities will be manipulated to advance partisan goals. It has also
    shifted the burden of enforcing voting rights to minorities in
    contravention of congressional purpose in enacting the Voting Rights
    Act.
        Congressional oversight is critical to restoring public trust and
    confidence in the Voting Section of the Department of Justice, and
    insuring that the nations's voting laws are fairly and adequately
    enforced.

        Mr. Nadler. The Chair will now recognize Mr. Moore for 5
    minutes.

       TESTIMONY OF TOBY MOORE, FORMER POLITICAL GEOGRAPHER AND
    REDISTRICT EXPERT, VOTIING SECTION, CIVIL RIGHTS DIVISION, U.S.
                         DEPARTMENT OF JUSTICE

        Mr. Moore. Mr. Chairman and Members of the Committee, thank
    you for the opportunity to speak about my experiences as the
    geographer of the Voting Section of the Civil Rights Division
    from 2000 to 2006. My service in the section was the highlight
    of my professional career. For a White southerner, born a year
    after the passage of the Voting Rights Act, and having devoted
    my career to studying both the South's sad racial history and
    its remarkable progress enforcing a Federal law born on the
    Edmund Pettus Bridge in Selma, Alabama was a high honor indeed.
        I'm also somewhat uncomfortable testifying. I had a very
    friendly relationship with John Tanner for most of the time I
    worked with and for him. And speaking publicly about internal
    DOJ deliberations is not something I do lightly. Nonetheless, I
    hope that my experience at the ground level of Voting Section
    enforcement may be of some value to you in your oversight
    duties.
        Mr. Tanner's public comments earlier this month in Georgia
    and California could be overlooked if they were merely off-the-
    cuff remarks. Unfortunately, for minority voters and,
    unfortunately, the Department of Justice, the comments are
    actually a fair example of Tanner's approach to facts, the
    truth and the law. Broad generalizations, deliberate misuse of
    statistics and casual supposition, in my experience, were
    preferred over the analytical rigor, impartiality and
    scrupulous attention to detail that had marked the work of the
    section prior to Tanner taking control in 2005.
        This decline and the myriad of other problems that have
    developed in the section over the past several years are a
    direct result of the actions of political appointees, such as
    Hans von Spakovsky and Bradley Schlozman. It has left behind a
    demoralized section, a growing list of lost court cases and a
    severely diminished public trust in Federal voting rights
    enforcement.
        While my written testimony discusses problems with other
    matters, including enforcement of section 203 and the Ohio
    investigation of 2004, in the interest of time I will focus
    here on the Georgia ID investigation.
        While it's not my intent to debate the merits of the voter
    ID laws, I would like to point out that even by the standards
    of subsequent voter ID laws, the Georgia law in 2005 was a
    nasty piece of legislation. No State endeavoring to pass a
    photo ID law now is considering the kind of draconian
    restrictions that DOJ endorsed in Georgia in August of 2005,
    the restrictions that President Carter and Secretary Baker
    explicitly labeled as discriminatory when I worked for the
    Carter-Baker Commission at American University.
        Personally, I think that the issue is overblown on both
    sides, but clearly history as well as the Federal and State
    courts will record that the 2005 Georgia ID law, precleared by
    the Department of Justice, was a discriminatory one.
        All of us assigned to the investigation realized that the
    Department was almost certain to preclear it. Given the oft-
    stated views of von Spakovsky and Tanner's eagerness to please
    him, none of us thought the Department would lodge an
    objection. We simply wanted to do our jobs. That we were not
    allowed to do so demonstrates how the mission of the section
    has shifted from a search for evidence to support decision
    making to a search for evidence to support decisions already
    made.
        I only have time to mention a few of the statistical
    errors, procedural violations, and misrepresentations that I
    discuss more fully in my written testimony.
        First, it is not true that racial data from the Georgia
    Department of Drivers Services indicated that Blacks were more
    likely than Whites to have ID. It was not true in any of the
    data submissions from the State. The only way you reach that
    conclusion is if you include hundreds of thousands of
    noncitizens who are not Black in your comparison.
        Mr. Tanner compares the number from the DDS to the VAP, and
    not the citizen VAP, which is the more appropriate comparison
    if you are to use that data at all. And there are reasons in my
    written system why I don't think the data is trustworthy at
    all.
        It is not true that minority voters die before growing old.
    What this misses is the fact that Black voters in Georgia who
    are elderly are more likely to be impoverished, and therefore I
    think more likely not to have ID. This data that Laughlin
    referred to from Georgia in July of 2007, in fact, shows that
    African Americans make up 40 percent of those elderly voters
    who lack ID.
        Behind all great lies is a kernel of truth. It is not true
    that Tanner's pioneering actuarial theory was ever part of the
    2005 analysis but is instead a post hoc justification for an
    unjustifiable decision. It is not true that we were not
    reprimanded. We were each called into the office, one by one,
    and told that our performance during the Georgia ID was not up
    to the standards of the section. It did not result, in my case,
    in any letter of reprimand but we were certainly reprimanded.
    And Mr. Tanner needs to correct that statement.
        It is not true that a group of prominent law professors
    made racist statements about the impact of the ID law, which
    Mr. Tanner dismissed as bizarre and offensive. And it's not
    true that we did not consider the poll tax. Mr. Ellison's
    questions, the IDs were not free under the 2005 law. It was
    only under the subsequent 2006 law that the IDs were made free.
        To wrap up, John Tanner is both the cause and effect of the
    politicizing of the Civil Rights Division and should not be
    allowed to hide behind a career status watch which he has
    abjured by his actions. Until someone in the Department, in
    this Administration or the next, admits to the mistakes of the
    past several years and restores credible leadership, the Voting
    Section of the Civil Rights Division will remain a wounded
    institution. How long will the Department of Justice tolerate
    chronic mismanagement simply to save face?
        Thank you for your attention to this matter and for the
    opportunity to testify. I would, of course, be happy to answer
    any questions.
        Mr. Nadler. I thank the gentleman.
        [The prepared statement of Mr. Moore follows:]

                        Prepared Statement of Toby Moore

        Mr. Nadler. Mr. Driscoll is now recognized for 5 minutes.

               TESTIMONY OF ROBERT N. DRISCOLL, PARTNER,
                            ALSTON AND BIRD

        Mr. Driscoll. Thank you, Chairman Nadler, Members of the
    Subcommittee, for the opportunity to discuss the important work
    of the Civil Rights Division and particularly the Voting
    Section. I just want to touch upon a few areas and I will
    deviate from my written remarks a little bit to respond a
    little bit to what's been said. I think this is a constructive
    dialogue, and this panel in particular can be very helpful to
    Members of the Committee and to the public in terms of how
    voting rights enforcement works.
        We've got a Subcommittee here, Members are also of the full
    Committee, that has great influence on the laws of this country
    and what they are. And at the end of the day it's the Members
    of Congress that set what those laws are. And I think that's
    something that we all have to keep in mind when we're
    complaining about voter purges or things like that, that might
    be required under, for example, the NVRA. If there are
    provisions like that that are a problem, everyone needs to know
    that.
        We've got former career employees, such as Dr. Moore,
    testifying today. And career employees are the backbone of the
    division. They work for a long time. People like Mr. Tanner
    worked for 30 years in the division enforcement laws passed by
    Congress. And everyone needs to understand the valuable work
    they do. I think Dr. Moore here as well, I think, provides a
    service to some of us, at least by making clear that the notion
    of career and nonpartisan are not equivalent and that career
    employees can have just as many partisan leanings as any
    political appointee to ever come down the pike.
        We have adversary groups, such as Mr. McDonald and Ms.
    Fernandes represent, the ACLU leadership conference, and they
    have a valuable role to play. They come to the Department, come
    to Congress, encourage the Department to enforce the laws and
    point out where the Department's not doing a good job.
        However, I think people need to keep in mind not doing what
    an adversary group wants is not tantamount to failing to
    enforce the civil rights laws. I think Mr. McDonald and Ms.
    Fernandes would admit, if Members would question them, they're
    opposed to voter ID laws, period. As a matter of policy. It's a
    perfectly valid policy position to take. But their groups do
    not need one piece of data or evidence to reach the conclusion
    that the Georgia ID law was objectionable. So what then needs
    to happen under Georgia section 5 preclearance is that in light
    of that entire constellation of statutes passed by Congress,
    regulations enforced by the Department, data submitted by the
    State, data submitted by adversary groups, and analyses
    prepared by career staff, it comes down to the Assistant
    Attorney General, who is confirmed by the Senate,
    congressionally--presidentially appointed, congressionally
    approved member of the Department who has to eventually make
    the call.
        And that leads to the final point I would like to make,
    which I think just to--from an institutional perspective.. I
    say this not as a former Republican appointee, but I say it as
    someone with a great affection for the Department. I think it
    is extremely risky institutionally to call people like Mr.
    Tanner before this Committee and to question them as he was
    questioned in the first panel this morning. He's a career
    employee. He's dedicated his life to trying to enforce the laws
    as best he can. And at the end of the day, the responsibility
    for what the Department does lies with the Attorney General,
    lies with the Assistant Attorney General for Civil Rights.
        And I have no problem at all if this Committee or any
    Committee wants to call a political appointee before them and
    read them the riot act. But I think when the parties are
    reversed or there's a different Administration in power, people
    could regret the precedent that was set today of taking someone
    who's a career employee, who is not ultimately the one who has
    to make the final call on something like Georgia ID before a
    Committee like this.
        So again, I thank--these are the main points I would like
    to make. I look forward to engaging in dialogue with Members of
    the Subcommittee. And I think this can be an incredibly
    productive hearing. Thank you very much.
        Mr. Nadler. I thank the gentleman.
        [The prepared statement of Mr. Driscoll follows:]

                    Prepared Statement of Robert N. Drisocll

        Thank you, Chairman Nadler and members of the Subcommittee for the
    opportunity to discuss the important work of the Department of
    Justice's Civil Rights Division.
        My name is Bob Driscoll and I am currently a partner at Alston &
    Bird LLP, here in Washington. From 2001 to 2003, I had the honor of
    serving as Deputy Assistant Attorney General in the Civil Rights
    Division of the Department of Justice. During that time I worked on a
    variety of issues, including racial profiling guidance to federal law
    enforcement, desegregation, and police misconduct.
        My testimony today will touch on a few areas. First, I'll discuss
    the work that the Civil Rights Division does in the voting area, and
    the need to balance voters' access to the polls with ensuring ballot
    integrity. Second, I would also like to discuss the issue of advocacy
    before the Civil Rights Division. And lastly, I'll talk about the role
    of career employees in the Civil Rights Division.

              THE NEED TO BALANCE VOTER ACCESS TO THE POLLS WITH
                           ENSURING BALLOT INTEGRITY.

        In my view, it is critical that the Civil Rights Division strike a
    balance between ensuring that voters have access to the polls and
    protecting the integrity of ballots cast. The failure to adequately
    address either of these area results in effectively disenfranchising
    rightful voters.
        Honest voter registration lists are a requirement to ensure that
    honest votes are being cast. If an outdated or inaccurate voter
    registration list is used, this could result in allowing someone to
    vote who should be not voting. This effectively results in the
    disenfranchisement of honest votes.
        One of the most important rights in this country is to have one's
    vote counted. If an improper or unlawful vote is cast, a legitimate
    voter's choice is cancelled by someone who ought not to be voting. In
    addition, it is likely to increase voter turnout if voters know their
    vote will count and will not be diluted by improper or unlawful votes.
        As an example of this principle, Congress has required that states
    ensure that applicants are citizens of the United States before
    registering to vote. This is not an issue of whether one favors or
    disfavors more or less immigration. As a descendant of Irish immigrants
    who has married into a family of Cuban immigrants, I am certainly not
    anti-immigration in any way. It is the simple matter of making sure
    that only people entitled to vote do so. To do otherwise does not honor
    and respect those immigrants who have entered the country legally and
    properly earned the precious right to vote that so many have fought to
    achieve and maintain.
        Although to the uninitiated, these principles might sound non-
    controversial, in fact there has been substantial disagreement about
    whether the Department of Justice has gone too far in enforcing these
    provisions. I find it remarkable that the Department has come under
    criticism for enforcing the law that Congress has passed and the
    President has signed. While I think the law represents good public
    policy, it seems to me that those who disagree on that point should
    seek to amend the statutes in question, rather than criticize the
    Department of Justice for enforcing existing law.
        The NVRA specifically requires that the following two ``yes/no''
    questions be answered on a voter registration form: ``Are you a citizen
    of the United States of America?'' and ``Will you be 18 years of age on
    or before election day?'' Under the NVRA, if the citizenship question
    is not answered, the voter registrar ``shall notify the applicant of
    the failure and provide the applicant with an opportunity to complete
    the form in a timely manner to allow for the completion of the
    registration form prior to the next election for Federal office
    (subject to State law).''
        Despite the clear language in this provision that requires
    individuals to answer the citizenship question before their voter
    registration can be accepted by election officials, many states have
    ignored the law, and have continued to register applicants who do not
    answer the citizenship question.
        I believe that the Subcommittee must recognize that illegally cast
    ballots dilute the vote of legally cast ballots, just as much as if
    those voters had been denied access to the polls. I could not disagree
    more strongly with those critics who seem to suggest that non-
    enforcement of any laws having to do with voter integrity is consistent
    with the advancement of civil rights. To the contrary, permitting or
    ignoring unauthorized or illegal voting is just as egregious as
    permitting a jurisdiction to deny a legal voter the right to vote.

                   ADVOCACY BEFORE THE CIVIL RIGHTS DIVISION.

        I'd like to discuss now the issue of advocacy before the Civil
    Rights Division. There are interest groups that advocate for particular
    results from the Civil Rights Division, and then publicly complain when
    they don't get their desired results. I think much of this criticism is
    unfounded.
        The simple fact that the Civil Rights Division doesn't agree with
    everything advocated for by these groups does not mean that the
    Division isn't doing its job. While the Division may listen to the
    views of different interest groups, it is the Division's job to apply
    the laws passed by Congress to the facts and circumstances of each
    case.
        The Division would not be doing its job if it simply parroted the
    views of different advocacy groups. Indeed, in Miller v. Johnson, 515
    U.S. 900 (1995), the Supreme Court held that when the Justice
    Department tried to impose an ACLU redistricting plan on Georgia rather
    than applying the laws to the redistricting plans proposed by Georgia,
    that the Department had ``expanded its authority under the statute
    beyond what Congress intended.'' The Supreme Court also recognized the
    District Court's ``sharp criticism'' of the Justice Department for its
    close cooperation with the ACLU on the redistricting at issue in the
    litigation. The District Court's decision detailed the ACLU's intense
    advocacy of the Civil Rights Division on the Georgia redistricting at
    issue, observing that ``Succinctly put, the considerable influence of
    ACLU advocacy on the voting rights decisions of the United States
    Attorney General is an embarrassment.'' Johnson v. Miller, 864 F.Supp.
    1354, 1368 (S.D.Ga.1994).
        The fact that the Division does not take every action requested by
    advocacy groups indicates that the Division is taking its role
    seriously, and that it reviews issues independently.

                         THE ROLE OF CAREER EMPLOYEES.

        I have noted some criticism of career employees of the Division. I
    find this criticism unfortunate. It is my experience that the
    Division's career employees do their best to enforce the laws that
    Congress has passed to the best of their abilities. Career staff
    historically have not been subject to Congressional oversight hearings.
        As in every Division of the Department, in the Civil Rights
    Division, the career staff carries out the day-to-day operations of the
    Division, litigates existing cases, and makes recommendations to open
    new cases. There is no question that the career staff is where the
    institutional knowledge of the Division generally resides and is a
    resource that any appointee should draw upon frequently. However, it is
    the Assistant Attorney General for Civil Rights and the leadership of
    the Department who are ultimately responsible for the actions of the
    Division. This is a tremendous responsibility for the AAG and his or
    her immediate staff--as it is the AAG who will sit before this
    Committee and explain the Division's position on controversial issues.
        Because of this responsibility, the AAG and his or her staff must
    independently review, and therefore will sometimes disagree with, the
    recommendations of career staff. There is nothing inherently wrong with
    this--indeed, I think the Committee would not react well to an
    Assistant Attorney General who testified that he reached no conclusions
    that differed in any way from the recommendations presented to him.
    Such a ``rubber-stamp'' approach would be, and should be, justly
    criticized.
        Similarly, when the Division makes a mistake--as it did in
    Torrance, California when it was sanctioned nearly 1.8 million dollars
    for overreaching in an employment case--it would be no excuse for the
    AAG to say: ``I was merely following the recommendations of the career
    staff.'' Therefore, it is the responsibility to ``get it right'' that
    obligates the AAG and his or her staff to closely scrutinize the
    recommendations that come before them.
        The important question for the Committee is whether a particular
    decision to proceed (or not) with a case was correct. The Committee
    should focus on the quality of the Division's decisions and hold the
    political appointees accountable when issues arise. It seems to me that
    it is harmful to the Department from an institutional perspective to
    bring career employees such as Mr. Tanner up to be questioned by the
    Subcommittee about their reasoning in matters that may be
    controversial. Although some may sense a political opportunity to
    criticize him today, the questioning of a dedicated civil servant
    rather than political appointees does not serve the long-term interests
    of the Department.
        Thank you for the opportunity to appear before the Subcommittee and
    I look forward to answering whatever questions the Subcommittee may
    have.

        Mr. Nadler. Ms. Fernandes is recognized for 5 minutes.

     TESTIMONY OF JULIE FERNANDES, SENIOR POLICY ANALYST & SPECIAL
         COUNSEL, LEADERSHIP CONFERENCE FOR CIVIL RIGHTS (LCCR)

        Ms. Fernandes. Good afternoon, Chairman Nadler, Ranking
    Member Franks and Members of the Subcommittee. Thank you for
    the opportunity to appear before you today to discuss the
    Voting Section of the Civil Rights Division. Every week it
    seems there's another article in the news that calls into
    question the integrity of the managers and political staff who
    run the Voting Section at the Civil Rights Division and the
    priorities they choose to enforcement.
        We read of political hiring, unethical conduct, partisan
    interests trumping law enforcement. We also learn that while
    there has been an increase in some areas of enforcement, much
    of the core work of the section has been significantly
    diminished. In many ways, the Voting Section has become the
    truest example of civil rights gone wrong at the Department of
    Justice.
        The voting rights movement was born of a need to repair
    decades of State-sanctioned denial of political equality to
    millions of American citizens. In years past, addressing this
    unfinished agenda guided the Voting Section's work. However, in
    recent years, the Voting Section has turned away from its
    historic mandate. Since 2001, the Civil Rights Division has
    brought two cases alleging voting discrimination against
    African Americans. One in Crockett County, Tennessee, was
    authorized under the previous Administration, with the
    complaint finally filed in April 2001. The other was in 2006 in
    Euclid, Ohio. No cases involving voting discrimination against
    African Americans have been brought in the deep south
    throughout the entire Administration. None. The only case
    brought alleging racial discrimination in the deep south was a
    case to protect White voters in Mississippi. Of course, White
    voters are protected by the Voting Rights Act. But it strains
    the imagination to believe that the only example of racial
    discrimination in voting in the deep south for the past 6 years
    was a case involving White voters.
        While all of us understand that different Administrations
    have different enforcement priorities, it simply can't be a
    priority for the Civil Rights Division not to bring cases on
    behalf of African Americans. In recent years, instead of
    promoting access to the polls, the Voting Section has used its
    enforcement authority to deny access and promote barriers to
    block legitimate voters from participating in the political
    process. This effort was driven in large part by partisan
    political operatives like Hans von Spakovsky and Bradley
    Schlozman, though in some instances, with the complicit acts of
    career staff.
        For example, the division's failure to block the
    implementation of Georgia's draconian voter ID law in 2005, an
    outcome driven by von Spakovsky, and later held
    unconstitutional and characterized as a modern-day poll tax by
    a Federal judge, opened the door for States across the country
    to pass similar onerous laws.
        In recent years, the Voting Section has sent a strong
    message to States that the Federal Government will not
    challenge voter ID laws no matter how restrictive and no matter
    what the impact on minority voters. The section's abdication of
    their role to challenge discriminatory voter ID laws gives the
    impression that the section is being used as a tool to press a
    partisan interest in promoting voter ID.
        Furthermore, the division has rejected numerous requests
    from voting rights advocacy groups to enforce that part of the
    NVRA that requires social service agencies to provide voter
    registration opportunities despite substantial evidence that
    registration at those agencies has plummeted.
        At the same time, the section has shifted its priorities to
    enforcement of voter purge provisions of the law, which in many
    cases, as Congressman Wasserman Schultz pointed out as in
    Florida 2000, resulted in thousands of legitimate voters being
    taken off the rolls and denied their right to vote.
        And the Department of Justice's Voter Integrity Initiative
    established in 2001 by former Attorney General John Ashcroft
    has created unnecessary comingling between criminal prosecutors
    in the U.S. Attorney's offices and civil rights division
    attorneys.
        These efforts can, if done improperly, result in a chilling
    effect on the participation of minority voters, particularly in
    jurisdictions where there is a history of disfranchisement
    efforts targeting racial and ethnic minorities.
        Rather than promoting schemes to deny equal opportunity for
    citizens to vote, the Civil Rights Division should be focused
    on: one, combatting voter ID laws that have a disproportionate
    negative impact on racial, ethnic or language minorities, like
    those passed by the Georgia legislature; two, ensuring that
    States are complying with the NVRA's access requirements and
    ensuring that those registrations are processed appropriately;
    and, three, reinforcing the firewall that exists between the
    Civil Rights Division and the Criminal Division's work to
    combat voter fraud.
        Members of the Committee, the work of the Civil Rights
    Division over the past 50 years has helped to transform our
    Nation into a place where equal opportunity can be more than a
    dream. Today we must not allow those who seek to undermine
    civil rights destroy the power and credibility of one of our
    most important institutions in the fight for equal justice. We
    must expect the Civil Rights Division to enforce the Nation's
    voting rights laws without fear or favor, and we must demand
    accountability when they don't. Thank you very much.
        [The prepared statement of Ms. Fernandes follows:]

                     Prepared Statement of Julie Fernandes

        Mr. Nadler. Thank you very much.
        The Chair will now recognize himself to begin the
    questioning with 5 minutes of questioning.
        Mr. McDonald, you said a recent study by Professor Minnite
    shows that, between 2002 and 2005, only 24 people nationwide
    were convicted or pleaded guilty to Federal charges of illegal
    voting.
        We heard a previous witness--or, actually, I don't think it
    was a previous witness; I think it was the Ranking Member--talk
    about how 400,000--or maybe it was both--anyway, 400,000 people
    allegedly were enrolled in Florida and some other States--
    140,000--lots of people--and 2,000 people actually voted in two
    States.
        Can you comment on this? I recall seeing reports that this
    was not true, but do you have information on this, especially
    given the studies you cite?
        Mr. McDonald. We are involved in litigation, both in
    Georgia, against the constitutionality of the photo ID law, and
    also in Indiana. And there is absolutely no evidence of any
    kind that there has ever been any fraudulent in-person voting.
    And that's the only kind of election fraud that the photo ID
    bills are allegedly designed----
        Mr. Nadler. So there's no evidence that 2,000 people voted
    in New York and Florida at the same election, the same 2,000
    people?
        Mr. McDonald. Well, I'm not familiar with those facts. But
    what I do know is that the justification for the photo ID law
    as a way of combatting in-person voter fraud--and, in fact,
    there is no evidence whatsoever that there has ever been any
    in-person voter fraud. So it is a bill that addresses a problem
    that does not exist.
        And about the double voting, I would just remind Members of
    the Committee that the courts have held that it is not unlawful
    to vote in two different jurisdictions. There are some States
    that will allow you, if you're a nonresident, to vote in that
    jurisdiction's elections if you're a property owner.
        Mr. Nadler. But you can't vote in a presidential election
    in two different States in the same day?
        Mr. McDonald. No, that would not be appropriate. That would
    not be appropriate. But the mere fact that you're voting in two
    different jurisdiction doesn't necessarily mean that that's
    unlawful under the State law.
        Mr. Nadler. Okay.
        Now, Mr. Moore, you heard Mr. Tanner testify that he made
    the decision on the Georgia case. Did I hear you say that Mr.
    Spakovsky made the decision?
        Mr. Moore. No. I think that the two of them handled it
    pretty well. I mean, I think John knew what Hans wanted it to
    be; Hans had made it pretty clear. So technically who made the
    decision is almost immaterial.
        Mr. Nadler. Now, I understand that Georgia sent information
    on the 26th of August. On the 25th, the section people said
    don't preclear. On the 26th, Georgia sent information about
    600,000--incorrect data about 600,000 people. And on the 26th,
    it was precleared.
        Did they have time to analyze the correction of the data
    about the 600,000 people? Did they bother? Was it analyzed?
        Mr. Moore. No, sir, I don't think they ever analyzed it at
    all.
        Mr. Nadler. So even though they knew it was mistaken,
    because Georgia told them, ``We are correcting our data that we
    gave you''?
        Mr. Moore. I don't think that it was ever analyzed.
        Mr. Nadler. And, now, it is your testimony that--Mr. Tanner
    refused to answer the question whether he overruled four of the
    five analysts, but he did overrule four of the five analysts?
        Mr. Moore. Absolutely.
        Mr. Nadler. And the only analyst who thought that the law
    should be upheld, should be precleared, was a fellow who had
    been hired politically in the what we now know as politicized
    hiring of the Justice Department only a few months previously?
        Mr. Moore. That's what--yes.
        Mr. Nadler. Okay. Let me ask you. It is my understanding
    that of the 26 analysts that were present--prior to 2001, there
    were 26 civil rights analysts and six attorneys who reviewed
    submissions, gathered facts and made recommendations on over
    4,000 section 5 submissions each year. It has been reported
    there are significantly fewer staff members prosecuting the
    same section 5 submissions, many of whom are recently hired
    employees with no prior experience with section 5.
        So my understanding is that, of the 26 analysts, only eight
    are left. Is that correct?
        Mr. Moore. I have not worked in the section since 2006, so
    I don't know how many analysts work there.
        Mr. Nadler. How would you characterize the--does anybody
    know about those figures on the panel?
        Okay.
        Mr. Moore, do you know about the capability of the voting
    rights section, of the section 5 section, to do its work today,
    in terms of its staffing?
        Mr. Moore. From conversations with my former colleagues, I
    have some picture of what it is like to work in the section 5
    enforcement. My opinion is that there are a small number of
    analysts who are very overworked and who work for an acting
    deputy chief who has created somewhat of a hostile work
    environment. It is a very bad situation.
        Mr. Nadler. What do you mean by ``hostile work
    environment''?
        Mr. Moore. I'm sorry. This is kind of secondhand. But my
    conversations have been that it is a very unhappy place to
    work.
        Mr. Nadler. And why do you think so many staff have left
    the voting division, the Voting Section?
        Mr. Moore. I think, like me, they didn't really feel that
    there was any sense in doing their work if it didn't make any
    difference on the decisions that were being made.
        Mr. Nadler. And you think that the work of the analyst does
    not make a difference to the decisions?
        Mr. Moore. Well, there are a number of section 5
    submissions that are not controversial, and their work is
    enormously valuable. But on anything of significance and of
    controversy, no. The decisions are being made for political
    expedience, in my experience.
        Mr. Nadler. Political decisions on important section 5
    matters are being made for political expediency and not on the
    merits?
        Mr. Moore. That was my experience in Georgia.
        Mr. Nadler. Thank you.
        I thank the gentleman.
        I now recognize for 5 minutes the Ranking minority Member.
        Mr. Conyers. Thank you, Chairman Nadler.
        Oh, excuse me.
        Mr. Franks. Thank you, Mr. Chairman.
        And thank you, Mr. Chairman.
        Mr. Chairman--and I hate to start off my questions here
    with a little bit of a downer, but I was disappointed in some
    of Mr. Moore's characterizations of the former witness, Mr.
    Tanner, in that----
        Mr. Nadler. I think they were very generous.
        Mr. Franks. Well, they were pretty generous. But,
    unfortunately, to suggest that Mr. Moore was saying that Black
    people and White people age differently--I think, you know, if
    you read the context, the man made a very clumsy and awkward
    statement, for which he apologized for the awkwardness of it
    and the misunderstanding of it, and simply tried to explain
    that his purpose in making the statement was to point out that,
    due to some of the circumstances in society, that sometimes
    minorities in our country, tragically and sadly, live to a
    lesser average age than some of the majority members of
    society. And that is a tragedy, but, unfortunately, Mr.
    Tanner's remarks seem to be pretty twisted here.
        And I didn't come to defend the guy. But Mr. Moore also
    says he thinks someone did that or he didn't think someone did
    that or that--I don't know if he's relying on his experience or
    he's just, kind of, trying to add, kind of, a partisan element
    to the situation. And I just had to point that out.
        The Carter-Baker report concluded that voters in nearly 100
    democracies use a photo identification card without fear of
    infringement on their rights. These include many countries that
    are much less wealthy than the United States, including India
    and Pakistan. They don't agree on too many things, but they do
    agree on the need for photo IDs for voters.
        Mr. Driscoll, would you comment on that?
        In other words, you know, let me put it like this.
    Oftentimes the reason people don't vote is because they don't
    have confidence in the system. They don't know that their vote
    is going to be counted. They don't know that somehow that other
    distortions in the system are going to diminish their vote.
        And one of the things that I believe increases that
    confidence is having a consistent voter ID to where people know
    that the people voting are the ones of that district and that
    they are citizens and that they have the right under the
    Constitution to vote.
        And so, Mr. Driscoll, would you just comment on the
    confidence factor and what do you think that means in the
    bigger picture?
        Mr. Driscoll. Thank you for the question. I would like to
    answer that in two parts.
        The first is that I think both the Carter-Baker Commission
    and, more recently, I think, the Supreme Court in Purcell have
    recognized the point you're making, that voter integrity
    provisions can increase confidence, that the system works, and
    therefore can drive turnout up, which is something everyone
    wants. And I think that it is a policy matter that I happen to
    personally agree with.
        The 1 second only caveat that I want to put on that--and
    this is a very legitimate caveat--is we can't forget that we
    are in a country with a huge history of discrimination and that
    the Voting Rights Act was passed for a reason and section 5
    exists for a reason. And so, in that context, the Civil Rights
    Division needs to analyze any particular ID requirement to
    determine whether or not it, in fact, has a retrogressive
    effect. Because if it did have a retrogressive effect, it
    should not be precleared and it should not go into effect if it
    is in a covered jurisdiction.
        And so, I think that there is a legitimate policy debate. I
    happen to think voter ID on the whole is a good thing and the
    benefits outweigh the costs by far. But I think that is a
    separate question from whether or not any particular law in a
    covered jurisdiction should be precleared, and I think that
    question will come out differently on a case-by-case basis. I
    think that Georgia was precleared; I think there are other laws
    that might not be. And, unfortunately, you need to be a
    professional statistician, I think, to make those calls on a
    case-by-case basis.
        But I think that's how I would answer the question, that I
    think you're absolutely right that people have pointed out the
    need for confidence in the system, and ID helps to enhance that
    in some respects. But, certainly, the section 5 analysis needs
    to be done independent of that policy judgment.
        Mr. Franks. Thank you, Mr. Driscoll.
        Mr. Chairman, I guess I just want to point out here,
    without asking additional questions, that I truly believe that
    it is one of the critical things in our country to make sure
    that people of all races, all factions have every opportunity
    to exercise their constitutional and God-given right to vote in
    this country. And I want to see that happen in every case.
        But I'll just quote a little something that came from the
    discussion between Mark Hearne and one of the Democratic
    members of the Carter-Baker Commission. And it echoes the
    feelings of the former mayor of Atlanta, Andrew Young. He said,
    ``For our base, who may not believe their vote will count, a
    photo ID will give them greater confidence that they will be
    allowed to cast a ballot when they go to the poll. And a
    greater confidence will increase participation.'' We can say,
    Go to the polls, show the election officials your card with
    your picture on it, and they will guarantee you can vote, and
    your vote will count. And I truly believe that if we make sure
    people have confidence in the system, we will help minorities
    more than we will any other way.
        Thank you, Mr. Chairman.
        Mr. Nadler. I thank the gentleman.
        We have another Committee waiting to use the room, so we
    are going to be a little more strict in enforcing the 5-minute
    rule.
        Who is next? The gentleman from--the distinguished Chairman
    of the Committee, Mr. Conyers.
        Mr. Conyers. Thank you very much, Chairman Nadler.
        First of all, I want to thank Trent Franks for being here
    during and throughout and contributing to this Subcommittee
    hearing, because, to me, this is extremely important.
        And I want to commend Bob Driscoll, as the minority
    witness, who brings a committed attitude to this subject. When
    you say that we all want to increase voter registration and
    turnout, that's the key to what we are all doing, and then have
    the votes count. That sums it all up.
        And I thank you both very much.
        We are in such a time constraint, Chairman Nadler, that I
    want to recommend that we consider holding an additional
    hearing, because there is so much to go through here.
        I'm going to be going through this testimony very
    carefully, because, look, there's two views of this. One is
    that this voter rights section is red-hot, it is going great,
    things have never been so good, we are getting more votes, we
    are getting more cases prosecuted, everything is hunkydory. And
    then we have the other view, in which a number of people are
    calling for the section chief's resignation as we speak. The
    Inspector General's Office has multiple investigations going
    on, not only about the activities publicly and privately of the
    section chief but of career members as well.
        So, look--and this isn't the first time I've ever heard
    this kind of a disparity in a Committee hearing.
        But there's only one thing that I'm here for right now:
    Where do we go from here, lady and gentlemen? What is it that
    we need, as the Committee of jurisdiction, both the
    Subcommittee and full Committee--what are we to do?
        And the three ideas that have been presented here is to
    review the effectiveness of senior management of the Voting
    Section and determine whether we need to make replacements or
    additions; then, number two, a plan to rebuild the core in
    section 5 analysts. The attrition of 28 to eight is far too
    drastic when we are racing against the clock to the first
    Tuesday in next November.
        The third, we must examine whether voter protection laws
    are being used to restrict voter rights. My bill, the second
    bill President Clinton signed in 1993, was the Motor Voter Act.
    And now it is being used to purge voters, and it is being
    underutilized to register voters.
        I heard Ms. Fernandes make a couple of recommendations, and
    I would like her to tell me about hers now. And then we want to
    look at them together for any additional comments that you may
    have.
        Ms. Fernandes. Thank you, Chairman Conyers.
        I think you've touched on a few of them already. I think
    that because we have the inspector general's investigation
    ongoing within the Department, my understanding is that we
    should be anticipating a report coming out of that office
    fairly soon. And I think the Committee may want to inquire with
    that office how quickly you can get access to that report, and
    then review the recommendations and see if there are things
    that have gone on that could be changed, whether it's in
    management or the politicization question.
        Mr. Conyers. You're asking me to trust a report, and that's
    a good way to start.
        Ms. Fernandes. I'm asking you to start with the report, not
    necessarily to trust it, but to at least start there, because I
    do think that there is likely to be a fairly thorough
    discussion around the politicization issue, though I have no
    inside knowledge of that at all.
        And I also think that the Committee's work is so helpful in
    focusing attention on the NVRA and the way the NVRA has been
    used to do these broad purges that wipe out so many eligible
    voters for no gain.
        And even this question about people voting in--just to tie
    this together with the voter ID issue--people voting in Florida
    and New York, well, if they're registered in both Florida and
    New York, no voter ID is going to stop them from voting twice.
    So voter ID is not a cure for whatever kind of problem--which I
    don't know that much about it--is presented.
        But I think that this Committee putting pressure to build
    up that firewall between Criminal and Civil Rights----
        Mr. Conyers. Is my time up already?
        Well, could I ask the gentlemen here to please submit to me
    your recommendations. I would be deeply grateful for them.
        Thank you, Mr. Chairman.
        Mr. Nadler. The gentleman from Minnesota is recognized for
    5 minutes.
        Mr. Ellison. Thank you, Mr. Chair.
        Ms. Fernandes, let's say that there have been, over the
    last 3, 4 years, perhaps as many as 24 people who have been
    convicted for voting in a name that was not their own.
        How many people are we going to lose with these voter ID
    bills?
        Ms. Fernandes. Tens of thousands, perhaps hundreds of
    thousands, depending on which bill it is. Some bills are much
    more onerous than others.
        Mr. Ellison. Yeah.
        I mean, now, you do this kind of work; and, Mr. McDonald,
    you do this kind of work; and, Mr. Moore, you do this kind of
    work, too; I'm sure Mr. Driscoll, as well.
        Is the main complaint of Black voters, Latino voters, is
    their main problem, their barrier to voting the fact that some
    States don't have a voter ID requirement?
        Ms. Fernandes. No. And, in fact, what this really is, I
    think, Mr. Ellison, I think this is people who are interested
    in having fewer people vote have kind of whipped up this whole
    notion of voter fraud in person. We are talking about polling
    place impersonation, right? So intentionally impersonating
    someone else in the polls to vote, which is a high-risk
    proposition, carries criminal penalties. You would have to
    create 500 to 1,000 coconspirators to do it. It is an
    inefficient way to steal an election if you even want to do
    that, right? So we are talking about whipping up a fear of that
    practice, which is apparently nonexistent, to justify voter ID
    law.
        Mr. Ellison. Now, Ms. Fernandes, if you're an immigrant
    person and you don't have a legal right to vote and you vote,
    isn't that like a felony?
        Ms. Fernandes. You could be deported.
        Mr. Ellison. And so, you're going to risk your life in
    America, that you're trying to have, to cast a vote?
        Ms. Fernandes. Yeah, for what.
        Mr. Ellison. You know, in my experience, I have trouble
    getting people to vote once in their own name, as opposed to
    trying to round up a bunch of people to steal an election.
        Mr. McDonald, I want to ask you this question: Do you think
    that voters of color who want confidence in an election and
    want to believe that their vote really matters, is their
    biggest advocacy to have a voter ID bill passed in the various
    States? Is that what they think the answer is?
        Mr. McDonald. Well, I think that a photo ID bill that was
    passed, at least in part, to discriminate, that plainly has a
    discriminatory impact, does nothing at all to create confidence
    in the fairness of the electoral system.
        Mr. Ellison. Mr. McDonald, let me ask this question: Would
    having people in Black police-uniform-looking outfits standing
    around polls, questioning people and telling them that they
    better have their child support paid or they're going to be
    arrested if they vote, do you think that might intimidate
    voters from voting?
        Mr. McDonald. Well, of course it would. And we know that
    those sort of voter intimidation tactics have been used in the
    past, and they ought to be addressed.
        Mr. Ellison. What about recent elections where they have
    these fake little memos and letters around saying that if you
    don't have your child support paid or your parking tickets paid
    that you can't vote? There are letters like this; I'm sure
    you're aware of them. And this isn't 10, 20 years ago. This is
    the last election.
        Mr. McDonald. Well, we have done monitoring of elections
    since the 2000 election. And we found many examples of things
    that are unconscionable, efforts to target minority precincts,
    to deprive people of the opportunity to have access to
    assistance in voting and also strong-arm tactics.
        Mr. Ellison. Forgive my interruption, but these are the
    things that people are concerned about; isn't that right?
        And I'm just going to state for the record my own opinion--
    and forgive me for my interruption. I believe that voter ID
    bills are intentional voter suppression of minority voters and
    have the effect and intent of suppressing people's rights.
        Mr. McDonald. There's one thing that I would definitely
    like to respond to, which has not been responded to, and that's
    Mr. Tanner's statement that the District Court in Georgia found
    that the photo ID law did not violate the racial fairness
    provisions of section 2. That is incorrect. The court granted a
    preliminary injunction, found that the photo ID law would have
    a negative impact on racial minorities, but it did not reach
    the section 2 issue. It reserved a ruling on that. Then, when
    it issued its opinion on the merits, in which it reversed
    itself, it expressly did not reach the section 2 vote that we
    should claim.
        And, more importantly, last week we got a letter from the
    Court of Appeals questioning whether or not it had jurisdiction
    over the appeal we had taken of the case, because the court had
    not reached some of the claims that were raised, including
    section 2.
        So the court did not resolve the section 2 claim.
        Mr. Ellison. Mr. Chair, may I just say for the record that
    I think Mr. Moore is highly commendable, and he has done what I
    would expect a person born in the mid-1960's to do: carry on
    the legacy of the civil rights movement, make sure America is
    free and fair for everybody.
        I think you're a hero, Mr. Moore, and I'm so grateful for
    your advocacy and your honesty.
        Mr. Moore. Thank you.
        Mr. Nadler. Thank you.
        The gentleman's time is expired. The gentleman from
    Virginia is recognized for 5 minutes.
        Mr. Scott. Thank you. Thank you, Mr. Chairman.
        Mr. McDonald, I asked in the earlier panel some questions
    that need to be resolved before we go into another round of
    redistricting, specifically whether or not coalition districts
    are protected under the Voting Rights Act.
        Are there any questions like that that we need to make sure
    are resolved before we get into the next round of
    redistricting?
        Mr. McDonald. Well, I think that if there is a coalition
    composed of racial minorities and others that has the ability
    to elect candidates of its choice, that that's protected
    against retrogression by section 5.
        Mr. Scott. Are there other questions that we need to look
    at to make sure that they are resolved ahead of time, so that,
    as States start doing their redistricting and localities start
    doing their redistricting, are there questions that we need to
    look at?
        Mr. McDonald. Well, there's a question about whether
    majority-minority districts can be reduced on the assumption
    that there is sufficient White crossover voting to maintain the
    ability to elect candidates of choice. And I've discussed this
    issue with people in the State legislature whose opinions I
    deeply respect--African American members Tyrone Brooks, Robert
    Holmes. They have assured me that not a single member of the
    Black legislative caucus would support reducing majority-Black
    districts below 50 percent.
        And the reason is that, once a district becomes majority-
    White, it behaves in a different way. You no longer have the
    level of White crossover voting that you might have had when it
    was a majority-minority district. You no longer have the
    confidence that minority voters have in it. And you no long
    have as many minority candidates who are willing to run. So
    those districts will perform differently. And I take my cue
    from Tyrone and Bob Holmes.
        Mr. Scott. Well, if you have districts that have, in fact,
    performed--you have Members of the Congressional Black Caucus
    who are in districts less than 50 percent Black. Are those
    protected as minority districts where there minority community
    can elect a candidate of its choice?
        Mr. McDonald. I think so. That's me speaking now, not Mr.
    Tanner or the Department of Justice.
        Mr. Scott. Okay.
        Are there other issues we need to make sure we look at, Ms.
    Fernandes?
        Ms. Fernandes. No, I think that's the central issue, and I
    agree with Laughlin.
        Mr. Scott. Mr. Moore, is there any question that the voter
    ID bill had a disparate impact on the minority community?
        Mr. Moore. We believe the State had not met its burden to
    prove that it did not. It was a complicated statistical record
    with no smoking guns.
        Mr. Scott. Were there memos to that effect that were
    written?
        Mr. Moore. I believe The Washington Post published the memo
    that we wrote, yes.
        Mr. Scott. Did The Washington Post suggest that memos had
    been changed?
        Mr. Moore. The memo that The Washington Post published,
    which was the final staff memo, was, in my view, doctored to
    remove the recommendation and to reverse many of our key
    findings.
        Mr. Scott. In the previous panel, I asked whether or not
    anyone had been reprimanded who did not agree with the final
    decision on the Georgia case. And he said no one had been
    reprimanded. Was that accurate?
        Mr. Moore. No, not if ``reprimand'' is an oral reprimand.
    If it was a written reprimand, perhaps.
        Mr. Scott. The four that disagreed were orally reprimanded?
        Mr. Moore. I don't know about Mr. Berman. The other three
    of us were reprimanded.
        Mr. Scott. Was partisan politics involved in any employment
    decisions in the voting rights section?
        Mr. Moore. I was not involved with hiring. From the series
    of attorneys who joined the section, in the last couple of
    years while I was there, either it was politicized or they got
    very lucky.
        Mr. Scott. In investigating the Ohio irregularities, Mr.
    Tanner, a political appointee did the investigation himself, is
    that right?
        Mr. Moore. Mr. Tanner is a career employee, yes.
        Mr. Scott. He's a career or political?
        Mr. Moore. That's a good question. He's technically a
    career--he's a career employee.
        Mr. Driscoll. That's a good question for you, too.
        Mr. Scott. I'm sorry?
        Was there a reduction in staff while you were there.
        Mr. Moore. Yes, there was. But how much of that was a
    result of people leaving out of unhappiness and how much of it
    was the natural cycle as the census of 2000 became further ago.
        Mr. Scott. I have no further questions, Mr. Chairman. I'll
    yield to the gentleman from Wisconsin.
        Mr. Nadler. I thank the gentleman.
        On behalf of the Subcommittee, I want to thank our
    witnesses for appearing here today and for your testimony on
    this very important question.
        As you heard the Chair suggest, we may have an additional
    hearing at some point.
        Without objection, all Members will have 5 legislative days
    to submit to the Chair additional written questions for the
    witnesses, which we will forward and ask the witnesses to
    respond as promptly as you can, so that their answers may be
    made part of the record.
        Without objection, all Members will have 5 legislative days
    to provide and extend their remarks and to submit any
    additional materials for inclusion in the record.
        And, with that and the thanks of the Chair, this hearing is
    adjourned.
        [Whereupon, at 1:08 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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                   Material Submitted for the Hearing Record

       Post-Hearing Questions submitted to John K. Tanner, Chief, Voting
           Section, Civil Rights Division, U.S. Department of Justice

    --------
    Note: At the time this hearing was submitted for printing, January 27,
    2009, the Subcommittee had not received responses to the questions
    submitted to Mr. Tanner.