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


 
                VOTER REGISTRATION AND LIST MAINTENANCE 

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON ELECTIONS

                           COMMITTEE ON HOUSE
                             ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                HELD IN WASHINGTON, DC, OCTOBER 23, 2007

                               __________

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                   COMMITTEE ON HOUSE ADMINISTRATION

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

                       Subcommittee on Elections

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


                VOTER REGISTRATION AND LIST MAINTENANCE

                       TUESDAY, OCTOBER 23, 2007

                  House of Representatives,
                         Subcommittee on Elections,
                         Committee on House Administration,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 2:03 p.m., in 
Room 1310, Longworth House Office Building, Hon. Zoe Lofgren 
[chairwoman of the subcommittee] Presiding.
    Present: Representatives Lofgren, Gonzalez, Davis of 
California, McCarthy and Ehlers.
    Staff Present: Liz Birnbaum, Staff Director; Thomas Hicks, 
Senior Election Counsel; Janelle Hu, Election Counsel; Jennifer 
Daehn, Election Counsel; Matt Pinkus, Professional Staff/
Parliamentarian; Kyle Anderson, Press Director; Kristin 
McCowan, Chief Legislative Clerk; Daniel Favarulo, Staff 
Assistant, Elections; Matthew DeFreitas, Staff Assistant; Fred 
Hay, Minority General Counsel; Gineen Beach, Minority Election 
Counsel; and Roman Buhler, Minority Election Counsel.
    The Chairwoman. Good afternoon and welcome to the 
Subcommittee on Elections and our hearing on Voter Registration 
and List Maintenance.
    Throughout the year, this subcommittee has made an effort 
to examine our electoral process, from how voters vote; their 
experience at the polling place; and, finally, how that vote is 
counted. All are very important, but today we turn our 
attention to the role of the States in ensuring that eligible 
voters are allowed to vote.
    Section 8 of the National Voter Registration Act created 
requirements for how States maintain voter registration lists 
for Federal elections. The act requires States to keep voter 
registration lists accurate and current. The act also requires 
list maintenance programs to incorporate specific safeguards, 
that they be uniform, nondiscriminatory, in compliance with the 
Voting Rights Act. HAVA reinforced this requirement.
    Since 2005, the Justice Department has been aggressively 
enforcing NVRA's requirement that States clean their voter 
registration rolls. To date, the Department has filed suit 
against four States and questioned others. While it is the role 
of the DOJ to enforce NVRA and HAVA, the zealous manner in 
which this provision has been enforced may have an adverse 
impact, leading to the disenfranchisement of eligible voters. 
There is also increased concern that the agency charged to 
protect voters has become politicized, with party activists 
such as Hans Von Spakovksy heading the DOJ's purge efforts.
    The EAC has issued a guidance report on implementing HAVA; 
however, it does not provide specific recommendations and 
procedures for developing database matches and conducting list 
maintenance. There is a lack of clear and specific standards 
for States to follow in performing list maintenance. This has 
resulted in inconsistent standards between States and within 
States for Federal elections.
    The transition to a central, uniform, and computerized 
statewide voter registration database has caused significant 
problems. The exact matching data requirement from registration 
forms to data on other State and Federal databases may be 
overly strict and does not take into account even simple data 
entry errors.
    Beyond matching, statewide voter lists are also subject to 
periodic removal of ineligible voters. This process is supposed 
to be transparent and nondiscriminatory. Unfortunately, States 
such as Florida have purged thousands of legal voters. Other 
States still do not notify voters who have been removed from 
voter rolls, denying them the right to contest these erroneous 
purges.
    In her testimony before the Committee on the Judiciary, 
where I also serve, Monica Goodling, the former director of 
public affairs for the Department of Justice, introduced many 
to the concept of vote caging. This practice is used to 
challenge voters' eligibility to vote at the polls, arguing 
that voters could not be reached at the address, and thus the 
registration is fraudulent. It sounds simple. However, more 
often than not there are other factors, such as the voter not 
being home or refusing to sign for a mailing, that caused the 
mail to return. Caging places an undue burden on the voter to 
prove his or her registration is valid.
    HAVA created a delicate balance between preventing fraud 
and allowing voters access to the ballot. That balance must be 
preserved. We cannot set up barriers to the electoral process 
for eligible voters. Removal of voters from voter registration 
lists has historically disenfranchised minorities and hurt the 
confidence in the election system. The quality of voter 
registration lists must be improved, and safeguards to protect 
eligible voters must be put in place.
    I thank the witnesses for testifying before this committee 
today, and I am interested in the testimony from both panels. I 
think it is important that we hear not only from election 
administrators, but also election advocates. And at this point 
I would like to recognize the Ranking Member of the 
subcommittee, Mr. McCarthy, for his opening statement.
    [The statement of Chairwoman Lofgren follows:]

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    Mr. McCarthy. Well, thank you, Madam Chair. I am excited 
about having hearings. I always come to hearings being able to 
gather greater information, especially when it comes to voter 
registration, the polls, the rolls that we have. We need to be 
diverse. We need to make sure across America that we have a 
fair, honest, and transparent system. So that is why I am 
looking forward to today's hearing.
    I am disappointed, though, in today's hearing. As we look 
for transparency, as we look for honesty, especially when it 
comes to voters, voters' rights, voters' rolls, the panel will 
not have transparency today. Of the eight witnesses we will 
have, there will be six on the majority side, two on the 
minority side. I am disappointed this subcommittee's 
partisanship changed. And that is unfortunate when it comes to 
election rules. I do agree with Speaker Pelosi that it should 
be partnership, not partisanship.
    So today there will be a lot of questions. Some may not be 
able to be answered, some may have to go on further. And we may 
have to dwell beyond what we are able to hear today. But I 
thank you for coming. I appreciate the opportunity that we do 
have.
    And. Madam Chair, I ask unanimous consent that the written 
testimony from Mr. Ed O'Neal, Mr. Scott Leiendecker, and the 
exhibits of Mrs. Willard Helander be included in the record of 
today's proceedings.
    [The statement of Mr. McCarthy follows:]
    
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    The Chairwoman. Without objection, that testimony is 
entered into the record.
    [The information follows:]

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    The Chairwoman. Other members will have their statements 
entered into the record.
    [The statement of Mr. Ehlers follows:]

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    The Chairwoman. And we will turn now to our witnesses.
    We have on our first panel, first, Mr. Chris Nelson, the 
minority's witness. He is Secretary of State for South Dakota, 
and he has been serving in that capacity since his election in 
2002. As Secretary of State, he has received the 2003 
Excellence in South Dakota Municipal Government Award from the 
South Dakota Municipal League, and the 2004 Hazeltine/Taylor 
award from South Dakota Kids Voting, the group I used to be 
very involved in when I was in local government.
    In 2005, he was appointed as a National Governors 
Association representative on the United States Election 
Assistance Commission Board of Advisors. Prior to becoming 
Secretary of State, he held the position of State elections 
supervisor in the Secretary of State's Office for 13 years, and 
was Uniform Commercial Code supervisor in the same office for 2 
years. He graduated from South Dakota State University in 1987 
with a bachelor's degree in animal science.
    Next we have Larry Leake, the chairman of the North 
Carolina State Board of Elections. Mr. Leake serves as the 
chair, and he has been a member of the Board of Elections since 
1993. In addition to his work on the State Board of Elections, 
Mr. Leake also is a partner at Leake & Scott, where he 
practices governmental law and civil defense. Prior to his 
membership on the board, he also served as State senator, 
attorney for the Madison County Board of Commissioners, and 
attorney for the Town of Hot Springs. He earned his bachelor's 
and his juris doctor at the University of North Carolina. And 
we welcome him.
    Patricia Hollarn is our next witness. She has served as 
supervisor of elections in Okaloosa County, Florida since 1988. 
Her tenure in this office has been marked by great advances in 
technology, from the introduction of the first PC in the office 
to participating in pilot programs on Internet voting. Her 
introduction to Kids Voting, later revised to Kids Vote Too, 
has been very successful in training students to be voters for 
life.
    Ms. Hollarn has been a member of the National Task Force on 
Election Reform since 2001, where she works closely with 
congressional staff as well as other election administrators on 
election laws. She testified on several issues in Governor 
Bush's Task Force on Election Reform in 2001, and in December 
of 2002 was appointed as one of four supervisors of elections 
in an advisory panel to the Governors Task Force II on 
Elections. Ms. Hollarn received her bachelor's degree from the 
University of New Hampshire, and has completed graduate work at 
New York University, St. Mary's University, San Antonio, Texas, 
and the Florida Center for Public Management at FSU.
    And finally, we have Jackie Harris, the general registrar 
in Fairfax County, Virginia. She has served as the general 
registrar since 2005. And prior to her work in Fairfax County, 
she has over 14 years' experience in the field of voter 
registration and election administration, having served as the 
general registrar and deputy registrar in Albemarle County, 
Virginia. She is also a current member of the Virginia State 
Board of Election's VERIS, which is the Virginia Election and 
Registration Information System, on that project development 
team, and she is a past chairwoman of the statewide Local 
Government Officials Conference.
    We welcome all of you, and we will put your entire 
statements in the record of this hearing. We ask that your oral 
testimony take 5 minutes. When your time is up, a red light 
will show, and it always surprises the witness because it goes 
like a flash. When you have got 1 minute to go, a yellow light 
will go on, which will give you fair warning. And we do ask 
that you try and stay within the time frame so we can hear 
everyone and get to our questions.

 STATEMENTS OF CHRIS NELSON, SECRETARY OF STATE, SOUTH DAKOTA; 
LARRY LEAKE, CHAIRMAN, NORTH CAROLINA STATE BOARD OF ELECTIONS; 
PATRICIA HOLLARN, SUPERVISOR OF ELECTIONS, OKALOOSA COUNTY; AND 
        JACKIE HARRIS, GENERAL REGISTRAR, FAIRFAX COUNTY

    The Chairwoman. If we could start with you, Mr. Nelson, we 
do thank you for being here.

                   STATEMENT OF CHRIS NELSON

    Mr. Nelson. Thank you, Madam Chair, members of the 
committee. It is my honor to appear before this committee. List 
maintenance is that delicate----
    The Chairwoman. There is a button on your microphone.
    Mr. Nelson. Got it. Just need to move it a little closer.
    List maintenance is that delicate balance between making 
sure our registration lists are clean and we not remove any 
legally qualified voter from that list.
    I want to spend most of my time today talking about the 
provisions of the National Voter Registration Act list 
maintenance process. And after 14 years of experience with that 
1993 law, we have found what I believe is a key flaw in that 
law that Congress needs to address.
    I would like to give you some real numbers from South 
Dakota that illustrate this particular problem. Eight of our 66 
counties have more than 100 percent voting-age population 
registered. Of our current active voter registration lists, 
seven-tenths of 1 percent of the voters have not voted or had 
any contact in 10 years. One particular county has 2\1/2\ 
percent of the people on the active list not voting, no contact 
in 10 years.
    The entire effectiveness of the NVRA list maintenance 
procedure comes down to one key point and one key person; and 
that is not an election official, but a postal delivery person. 
Because as those address verification cards are sent out, it 
all comes down to whether or not that postal delivery person 
puts that card in a box or it comes back undeliverable. That is 
what the entire success or failure of that system rests upon.
    The process begins with this nonforwardable mailing. And if 
it comes back to the election official, we can follow up on 
that. If it goes in the box, that person will stay on the list 
for 2 more years.
    What we have found is there are four key failure points in 
this particular process. The first failure point is does the 
postal person know who is at that address? And postal people 
have told me we don't know who is in that house or behind that 
box number. We know who it is registered to, but we don't know 
on a daily basis who is there.
    Second failure point, this nonforwardable card under 
Federal law too frequently gets forwarded, as opposed to being 
returned undeliverable.
    Third failure point, delivering to the address alone, 
without looking at who the addressee is on the card.
    And the fourth failure point, simple delivery mistakes. We 
have all gotten somebody else's mail. The key point is if that 
card goes in a box, the process is over and that name will 
remain on the list for 2 more years.
    These mistakes are real mistakes that happen with 
frequency, and they outline and compound the failure of the 
list maintenance process laid out in the National Voter 
Registration Act.
    Now, let me be clear, this process is a good start, but it 
doesn't make for a complete list maintenance system. We must 
have, in order to have a complete system, the ability to at 
some point remove voters for nonvoting and noncontact. I would 
recommend that that come at the 6-year period. A voter who has 
not voted, had no contact whatsoever in 6 years, that we at 
that time be able to move them to the inactive registration 
list, and realize they stay on that list for another two 
general election cycles. So, really, a total of 10 years that a 
person would be on the registration list with no voting, no 
contact.
    In South Dakota, that would amount to 30 elections that 
that person would choose not to vote in before we would be able 
to ultimately remove them from the list. And I would maintain 
that by that point in time, 10 years, 30 elections, that that 
person is either not there or they have signaled that they 
really don't want to be involved in this process. And there are 
statistics out there to show that there are individuals in that 
particular situation.
    Our current system has this design flaw. And I am not 
suggesting we replace what NVRA allows us to do with list 
maintenance, but we need an additional provision that allows us 
at some point to remove names for nonvoting and noncontact.
    We can do better with list maintenance than what we are 
currently doing now. And I would ask that this committee and 
this Congress consider that particular change in the National 
Voter Registration Act. Thank you.
    The Chairwoman. Thank you very much for your testimony and 
also for your brevity.
    [The statement of Mr. Nelson follows:]

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    The Chairwoman. I would turn now to Mr. Leake. Am I 
mispronouncing your name?
    Mr. Leake. The last E is silent, Madam Chair.
    The Chairwoman. Well, Mr. Leake, welcome. And we welcome 
hearing your testimony.

                    STATEMENT OF LARRY LEAKE

    Mr. Leake. Thank you very much. We certainly appreciate the 
committee's very gracious invitation. First of all, for your 
general information, the State Board of Elections in North 
Carolina is a five-member, quasi-judicial board that has the 
responsibility of enforcing our election laws and overseeing 
the administration of elections in all 100 of our counties.
    I must tell the committee that our view of the National 
Voter Registration Act and our experience perhaps differs 
somewhat from South Dakota's. We would tell the committee that 
we have been able to devise a list maintenance system which we 
believe works, and works very effectively. We would further 
share with the committee--and it is attached to our written 
testimony--some examples of where, as a result of certain 
inquiries made both by our State Auditor's Office and by the 
voting section of the Federal Department of Justice, we have 
had reason to do some in-depth analysis of what is happening 
with our list maintenance. There have been some studies done, 
which are attached, which we believe the Department of Justice 
initially misconstrued as to what those percentages mean.
    In North Carolina, we have gone to great effort to ensure 
that no eligible voter is ever disenfranchised. Therefore, in 
our computer banks, if you will, we will always have the name 
of any registered voter. But we very carefully remove and place 
in an inactive list those voters with whom we have had no 
contact for 2 years. We do not allow any voter who there is any 
question about his qualifications and eligibility to vote to 
become a part of the mainstream vote, if you will.
    In Congressman Watt's district, if there was a provisional 
ballot situation, that ballot, if the person says they are 
entitled to vote, they will be allowed to vote, but that ballot 
is segregated and kept separate and apart until we are certain 
that that person is, in, fact a registered voter.
    I think when you simply look at the inactive and active 
registration totals, which have been done in certain instances, 
such as in Wautauga County in North Carolina, home of 
Appalachian State University, it misconstrues, when compared 
with the census figures, what is going on. There are a large 
number of students who have moved to Wautauga County and are 
legally voting in that county. So we would urge this committee 
to view with skepticism a comparison to population figures 
without an analysis of why and what might be going on.
    In our eastern and western sections of our State we have a 
large number of people moving in. I come from the western part 
of the State, the mountainous part of the State. We firmly 
believe that the Census Bureau, if you will, is not going up 
all the ``hollers'' to find all the folks. So we believe that 
the key fact is that we do follow up on our law and your law to 
make certain that all felons--and we have a very elaborate 
system for doing that--all those who are deceased, are removed 
from the voting registration rolls. And in our State we have a 
very active program through our SEIMS program, our State 
Election Information Management System, that allows us to make 
certain that no individual is voting in two localities.
    So we hope that you continue to find ways to improve, but 
certainly don't throw away the baby with the bath water. We 
need to continue a system that ensures the integrity of the 
process, but encourages and makes easy participation.
    The Chairwoman. Thank you very much, Mr. Leake. And also 
for your brevity.
    [The statement of Mr. Leake follows:]

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    The Chairwoman. And we have next Ms. Hollarn. Thank you for 
your testimony.

                 STATEMENT OF PATRICIA HOLLARN

    Ms. Hollarn. Thank you very much. I too am quite honored to 
be asked to testify.
    The Chairwoman. Is the microphone on? There is a little 
button you need to push. Pull it a little closer so we can hear 
you.
    Ms. Hollarn. Thank you. Sorry.
    The Chairwoman. Very good.
    Ms. Hollarn. Again, thank you for asking me to testify 
today. And in addition to the biography and the written 
testimony, I would like to add two things about myself. Number 
one, I am not here as a witness representing any majority or 
minority party. I am here solely as a defender of voter rights, 
especially in Florida, and particularly Okaloosa County, 
Florida. And the main principle of my office is ``good enough 
is the enemy of excellence.'' And that is the way we operate.
    NVRA did the Nation a great service by leading us in the 
right direction for list maintenance. And Florida actually in 
its conforming legislation went even a little bit further. And 
I know, I helped in drafting that legislation, and also in the 
procedures for supervisors in our State association.
    In addition to the written testimony, these are three main 
points I would like to bring out about our list maintenance.
    Number one, every application, every record change that 
comes to our office, requires acknowledgment so that every 
voter who, from whatever source we receive that information--
whether it is his own application or some other document from 
some agency--gets a voter card if, in fact, the application was 
correct; a notice of not being eligible with the reason for the 
lack of eligibility; a notice of incomplete with not only the 
reason, but another form that has information on it that the 
voter has already submitted; and a prepaid postage return as 
well. So in other words, every voter is given every opportunity 
to correct any information that needs correction at that point.
    The second point is that every change to a voter's record 
needs documentation. It is not possible--well, it is not a 
practice for people to go in and change people's records 
arbitrarily. You must be able to justify with evidence every 
change you make to a voter's record, whether it is from the 
voter himself, from an agency such as the Bureau of Vital 
Statistics on death, and any of the other places from whom we 
receive information about a voter, such as if he is registered 
in another jurisdiction. Florida voters are not removed simply 
for not voting. They are removed for no contact. And the 
written testimony, too lengthy basically to outline the steps 
here, gives you scenarios as to this very lengthy process of 
contacting a voter and making any change to his status at all. 
And the fact is that the list maintenance procedures under this 
Florida law have resulted in cleaner rolls.
    Now the voter only has one responsibility basically, and 
that is to advise the elections office of his--any change of 
address, or perhaps name, or something like that. But basically 
it is the change of address that is usually at issue. And the 
fact that HAVA enhanced list and voter registration by 
requiring a statewide voter registration system has gone to 
great lengths to enhance the entire procedure.
    The written testimony includes a discussion on removal of 
felons from the rolls. And perhaps, Madam Chair, you were 
referring to the original attempt in 1998, which I was very 
critical of then, and now still. That process was stopped. It 
was presented at the wrong time, and it was stopped before it 
did damage.
    In 2000, lessons learned, supervisors of elections simply 
refused at such a time in a Presidential election year to even 
use such a list as it was. Basically, that was the end of 
lists. There is no such thing as a felon list in Florida. There 
is an application that may be matched against files in other 
agencies, and that is simply it. By and large we are quite 
satisfied with the system we have in Florida, and hope that my 
testimony has in some way cleared up some of the 
misconceptions.
    The Chairwoman. Very helpful. Thank you very much.
    [The statement of Ms. Hollarn follows:]


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    The Chairwoman. And those bells and whistles tell us that 
we have three votes on the floor of the House. What I would 
like to do is take Ms. Harris' testimony, and then we will 
adjourn for those three votes, which will take us about a half 
an hour, and then come back.
    So Ms. Harris, if you could give us your testimony, and 
then we will recess for voting.

                   STATEMENT OF JACKIE HARRIS

    Ms. Harris. Madam Chair, I would like to thank you and the 
members for inviting me to appear before you today. In my 
testimony today, I would like to focus on what I see are the 
four key elements to any list maintenance program at the State 
level.
    And I would like to use, by example, a recent 
implementation of the program in Virginia that stemmed from a 
new Virginia law that was instituted January 1 of this year. 
Basically, that was requiring the Division of Motor Vehicles to 
provide to voter registration offices and to the State Board of 
Elections a list of individuals who had indicated that they 
were not citizens on an application for a driver's license or 
an NVRA-type transaction at the Division of Motor Vehicles.
    I would like to apply the four standards that I have pulled 
out to that particular scenario and to show how it is very 
important that each of these are considered.
    The first is that the statewide centralized voter 
registration database needs to be robust, and it needs to be 
accurate, and it needs to be capable of being updated. There 
need to be resources available in order to implement new 
programs. Because as we all know, election law tends to change 
rapidly and frequently. So as this new program was developed, 
it was not able to be implemented into our statewide voter 
registration system. We have had to process this data outside 
that system.
    The second key element that I think is important to the 
list maintenance is an informed electorate. And that means that 
voters know how to register to vote, how to update their 
address with us, and what the consequence of any action may be. 
For these particular voters, they may have marked a box on a 
DMV driver's license application that at the top of the form 
said, ``for the purposes of voter registration are you a 
citizen of the United States, and would you like to register to 
vote or update your voter registration address today?''
    We, among the hundreds of phone calls we took after 
processing these registrations, had a number of people who said 
it said at the very top ``for the purposes of voter 
registration only.'' I am a registered voter, I didn't do it, I 
marked ``no.'' They did not realize at the time that marking 
``no'' to this question on citizenship was actually authorizing 
us to remove their name from active voter registration lists. 
That was the State law, and we were compelled under State law 
to do that. But the voter had no sort of fail-safe at the time 
to say, you know, marking this box, this is the consequence of 
that action.
    The third item that I think is important to any maintenance 
list or list maintenance program is that we are getting 
accurate and timely data from any other source of information. 
And that may be the Division of Motor Vehicles or the Social 
Security Administration, all sorts of agencies. Courts give us 
information on adjudications of incapacity. State Police give 
us information on people who have been convicted of felonies. 
So we have a variety of sources that we rely upon. We need that 
information to be accurate and timely.
    In this particular instance, we are concerned that the 
information we have received was not necessarily accurate. 
There was some evidence that there may have been Division of 
Motor Vehicle employees who checked those boxes on behalf of 
the voter. Whether they made any sort of verbal confirmation or 
not, we don't know. But we could tell that there was a 
different pen used, a different style of marking the box, et 
cetera, on the forms that we were able to see. So we had some 
concerns about the accuracy.
    And, of course, the fourth piece of any registration system 
in list maintenance is that the voter has an opportunity to 
have a fail-safe or a correction device. So we do send mailings 
to these voters, which prompted the hundreds and hundreds of 
phone calls to let them know that, by the way, the Division of 
Motor Vehicles has informed us that you marked a box that you 
are not a citizen of the United States. And much to their 
surprise, and not really so much to our surprise, we did 
receive hundreds of phone calls. More than 25 percent of the 
individuals that we removed under that program have since 
reregistered to vote and corrected that information. However, 
we have heard from more like 40 to 50 to maybe even 60 percent 
of these people, through either that reregistration contact or 
through the angry phone call contact. So we are thinking that 
there are still a large number of individuals who may have been 
impacted by this program that have yet to respond to us.
    So as we look at list maintenance procedures, I think we 
need to make sure that we ensure that each of these elements is 
being addressed before a new procedure is put in place to 
ensure eligible voters remain eligible, ineligible voters are 
removed. But we need to make sure we are preserving the ability 
of eligible voters to cast their vote. Thank you.
    The Chairwoman. Thank you very much.
    [The statement of Ms. Harris follows:]

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    The Chairwoman. And thanks to all of you.
    At this point we have about 7 minutes left on our first 
vote, followed by two 5-minute votes. And so we will be here 
around 3:00. Get up, enjoy yourselves, and we will be back. And 
we are in recess now.
    [Recess.]
    The Chairwoman. As the voting has ended and we have at 
least our two members here so we can proceed, we will first 
thank you for your patience in waiting for us to come back, and 
move forward on the question period of our hearing. I would ask 
first if the Ranking Member would like, as a courtesy, to 
precede or not as he wishes.
    Mr. McCarthy. Madam Chair, I think tradition, the Chair 
always goes first. I would respectfully wait until after you.
    The Chairwoman. That would be fine then. I would like to 
ask then, before I get to Ms. Davis--Mr. Leake, Mr. Watt came 
earlier especially to show honor to you. He said he can't come 
back, but he wanted to make sure that you knew how pleased he 
was that you were here.
    In your written testimony, you indicate that the State 
auditor identified fewer than 100 potential violations of the 
law out of a database of 5.5 million active and inactive 
voters. And as I understand, all those cases were referred to 
the appropriate district attorney or prosecutor. Do you know 
how many of those 100 that might be a problem actually ended up 
being prosecuted?
    Mr. Leake. I do not, but I think it would be fair to say, 
ma'am, that there were few, if any, that actually ended up 
being prosecuted.
    The Chairwoman. So would it be--I guess you are 
speculating, but it wasn't in the paper or anything that you 
ever got a report back that there were prosecutions based upon 
this. Because I guess, just like Ms. Harris' testimony, 
mistakes can be made, and----
    Mr. Leake. Mistakes are made, Madam Chairwoman. And we in 
fact have had some very graphic mistakes made the other way, in 
which we received information of--in one instance, of a person 
being a convicted felon having voted, and even notified the 
Department of Corrections that this particular person was an 
escapee. Turned out that it truly was a different person, same 
name.
    Had another situation where a person was deceased, 
individual voted giving the same residence, same name. As it 
turned out, different person, no relationship to the deceased 
person even.
    So the errors can happen both ways. But we did feel like 
after we did our analysis after the issues were raised by the 
State auditor, that 100 problems out of 5\1/2\ million is a 
pretty good record.
    The Chairwoman. And we don't even know if those 100 were in 
fact a problem based upon the prosecution.
    Mr. Leake. We do not know the extent of the problem, yes, 
ma'am.
    The Chairwoman. Let me ask you, Ms. Harris, the story about 
the DMV was pretty enlightening. As a matter of fact, before 
this hearing, a friend of a member of my staff who has a Ph.D. 
actually told a similar story. They went in and they were 
already registered to vote, so they checked the box they didn't 
need to register. And then they found out that they were off 
the rolls, which is kind of a shock and an upset to them.
    What do you think? That is a serious problem where eligible 
voters, Americans who registered to vote, get thrown off 
through this error. What do you think the Federal Government 
could or should do to prevent that kind of disenfranchisement 
from happening?
    Ms. Harris. Because this is a State law-generated issue----
    The Chairwoman. But Motor Voter is ours.
    Ms. Harris. Correct. This particular element, I think part 
of it is that as we look at implementation of any State law 
that has a removal of a voter from the rolls, that we do look 
to the Federal law and we do look to the ability to perhaps 
flag a voter rather than actually remove them, and have an 
opportunity to somehow send them, you know, a notice that this 
information has been flagged. And if indeed they don't respond 
to that, at least maintain that flag through the election so 
that the individual has the right to be told the qualifications 
for voting at the polls and agree that they do or do not meet 
those qualifications before casting their vote, rather than the 
wholesale removal, which we expressed our concerns once we 
reviewed that list and the names on it.
    The Chairwoman. Ms. Hollarn, have you run into a similar 
type of situation?
    Ms. Hollarn. Well, the fact is that we don't remove someone 
just from notification. We do have the process where a person 
has to be notified that this action will be taken.
    The Chairwoman. Right.
    Ms. Hollarn. For instance, if it is----
    The Chairwoman. That was part of the improvements you 
insisted on in your State, right?
    Ms. Hollarn. Right. What happens is, for instance, if there 
is someone who has been identified as a felon, if we send him 
the packet of information requesting a response in 30 days, and 
that is by certified mail, if we do not hear back from them at 
all we are required to publish an ad in the newspaper of 
general circulation saying there will be an administrative 
hearing to take additional information about it. And it is only 
after that process is exhausted that someone is removed from 
the rolls. And if at some point in the future there is evidence 
that comes to light that an error has been made in removing 
that person, he does not even have to reregister. He would be 
automatically restored.
    The Chairwoman. Now, let me ask you this, just by way of 
practice, because there are a lot of reasons why you don't--a 
registered receipt. I mean, if you are not home there is nobody 
to sign----
    Ms. Hollarn. Right.
    The Chairwoman. It is irritating. They put something in 
your front door, and maybe you sign it and maybe you don't, and 
maybe it falls off in the rain. And there are lots of reasons 
why. I understand that.
    Ms. Hollarn. Right.
    The Chairwoman. If you publish that, do advocacy groups--
like does the League of Women Voters actually help get people 
notified or anything of that nature?
    Ms. Hollarn. Yes, they do. I myself use the ACLU. We have 
an active chapter in nearby Pensacola, Florida. And I work with 
them mostly with assistance for felons, because that is the 
thing I feel is very important, that nobody should be removed 
given a past history of the problems in 1998 and 2000.
    The Chairwoman. Very good. My time has expired, so I will 
turn now to the Ranking Member, Mr. McCarthy, for his 
questions.
    Mr. McCarthy. Thank you, Madam Chair.
    Ms. Harris, I was intrigued, too, by--did you say it was 
800 people?
    Ms. Harris. Eight hundred twenty-seven names removed from 
the first list.
    Mr. McCarthy. And because they matched the same name or----
    Ms. Harris. In Virginia we have access to the full Social 
Security number in our voter registration database, so these 
were names, date of birth, and Social Security matches.
    Mr. McCarthy. And all three matched the same?
    Ms. Harris. To the greatest degree. DMV oftentimes collects 
only--on the report we received it did not have middle name. It 
had first and last name, date of birth.
    Mr. McCarthy. This is the DMV. And you are talking right up 
on the front where it says ``Are you a citizen of the United 
States of America?'' and they had to check ``no'' or the DMV 
person checked ``no''?
    Ms. Harris. Correct.
    Mr. McCarthy. And then the Social Security was the same 
matching number?
    Ms. Harris. Correct.
    Mr. McCarthy. Did you notify Social Security of that? I 
mean, what do we do with 800 people with the same matching 
Social Security?
    Ms. Harris. I don't think that these were necessarily a 
case of the wrong individual being identified. I think that the 
statement that they were not a citizen of the United States is 
what they were disputing the accuracy.
    Mr. McCarthy. There were not two different people.
    Ms. Harris. It wasn't two different people. It was actually 
an individual saying, ``I never said that, I never marked that 
box.''
    Mr. McCarthy. Okay. Were any of them not citizens of those 
827?
    Ms. Harris. I am sure there is absolutely a portion of that 
list that would represent noncitizens. I am using that as 
speculation simply because we had people who have not responded 
to the mailing who we have pulled our files and taken a look at 
their original registrations. The original registrations for 
the greatest majority do have that ``Yes, I am a citizen of the 
United States'' marked on their actual registration 
application. There was a period of time in Virginia history not 
that long ago where the State Board of Elections had directed 
registrars to accept registrations without the box actually 
checked, because the attestation at the bottom of the form 
included the words, ``I am a citizen of the United States.''
    Mr. McCarthy. So currently if somebody doesn't check that 
box, though, doesn't answer it, what happens if they have no 
answer to a voter registration card that asks them are they a 
citizen?
    Ms. Harris. At this point in time, they are sent a new form 
that said ``You have not indicated your citizenship status on 
the registration application.''
    Mr. McCarthy. And they are not put into voter registration?
    Ms. Harris. No, they are not.
    Mr. McCarthy. Is that the same with everyone else?
    Ms. Hollarn. Incomplete.
    Mr. McCarthy. Incomplete?
    Mr. Nelson. In South Dakota, if the citizenship box is not 
checked, we do go ahead and register them and then follow up 
later to get that information, because part of the oath they 
are signing swears that they are a citizen.
    Mr. McCarthy. Another question for you. You talked about 
being removed from the rolls and how you go about maybe 
flagging it. Do you have any concept of how long before, say, 
that person you had here was not a citizen, they didn't respond 
back, they haven't voted in the process? From your concept, 
should anyone be removed from the rolls, or how long should 
somebody stay on the rolls? Maybe you found that they are 
illegal or not. How long should someone stay on the rolls 
before they are removed?
    Ms. Harris. I think using the basis of NVRA, and that if 
there is actually a flag next to the voter's name, it precludes 
them from casting a ballot before that missing information or 
questionable information is given to us. So I think that 
following a status of placing them on an inactive roll or, you 
know, to-be-determined status, that you can go through the two 
Federal elections maintaining that separate list, because that 
does give us the opportunity to say here is our active voter 
rolls, and this represents, you know, people that we are fairly 
certain are at the right location, et cetera, et cetera. But 
then there is the secondary, which doesn't necessarily mean 
ineligible. And oftentimes people are flagged as though they 
are ineligible.
    Mr. McCarthy. If you are flagged, is that a provisional 
ballot then?
    Ms. Harris. In Virginia, if you are flagged as an inactive 
voter, you have the ability to sign an affirmation of 
eligibility at the polls. You are explained all the rules 
regarding voter registration. And you have to agree that you 
understand that and you accept that these are true. We always 
have people that, you know, we question based on other 
information, and we provide them with the information that 
this--you are signing this under penalty of perjury.
    Mr. McCarthy. Now, this is I guess for anyone. Does anyone 
on the panel have any personal experience with the alleged 
fraudulent voter registration practices of the ACORN group, A-
C-O-R-N? Does anybody have personal experience with that group? 
No?
    Ms. Hollarn. Sir, not in my county, but it has occurred in 
the State of Florida.
    Mr. McCarthy. Okay. I guess my time is about up, but I 
would just like to note for the record that our proposed 
witness for the director of St. Louis City Board of Elections 
has such experience, but was not allowed to testify today on 
the ACORN issue. Thank you.
    The Chairwoman. The gentleman's time has expired. The 
gentlelady from California, Ms. Davis, is recognized for 5 
minutes.
    Mrs. Davis of California. Thank you, Madam Chair, and thank 
you all for being here.
    Could you just help me out in terms of your work 
experience? You know, how great a problem do you think it is 
that people actually make up registrations on voter 
registration forms, whether they vote twice, whether you have 
seen that in your experience, and voting for dead people on 
rolls? Is that something that you see in your experience as 
well? How widespread?
    Ms. Hollarn. Are you addressing me?
    Mrs. Davis of California. All of you.
    Ms. Hollarn. Well, from our experience in Florida, I can 
say that the dead people, no, I have not seen any of that. The 
only time it has occurred is if a name was removed because 
there was--we don't have Social Security numbers, so if persons 
with the same name, possibly a clerical error; but when the 
person showed up we discovered the person wasn't dead, so there 
was no fraud involved whatsoever. In our experience in Florida, 
people register and they don't really care about voting.
    There are other reasons. Especially in that narrow strip of 
Florida that I live in that is so close to Alabama and Georgia, 
they register because our hunting and fishing licenses are 
cheaper. A fraudulent homestead on a second home in Destin. 
Things like that. Or in-state tuition at Florida State. Those 
are the primary reasons for fraudulent registrations, because 
those have occurred.
    Many years ago, when we required identification to register 
to vote, that is sort of locking the barn door before the horse 
gets stolen. The fact is that we encountered a sizable number 
of people--let us say when you talk about 5 out of 100, I think 
is significant enough to mention--that owned a home someplace 
else but felt they were entitled to vote in Florida because 
they had this second home there. In other words, trying to 
maintain registration in two places.
    There was that infamous discovery of 40,000 people so-
called registered in New York as well as in the east coast of 
Florida. Things like that. So some of those people occasionally 
do vote, but the fraud is being committed for purposes other 
than actually voting. We have no way of knowing when we as 
ministerial officers simply take whatever a voter tells us. 
Unless evidence is produced to refute it, we have no idea. But 
fraud I have to say is not a big issue for voting.
    Mrs. Davis of California. Secretary Nelson.
    Mr. Nelson. In South Dakota, 2002 was the last election 
prior to the Help America Vote Act verification system that 
went into place. And in that election we had attempts to 
register people that did not exist, attempts to register people 
that were deceased. But with the advent of the Help America 
Vote Act verifications, we now have a very strong tool to make 
sure that kind of thing can't happen again. And it also allows 
us to catch people that are under felony convictions where they 
are still disqualified.
    We have caught, since those verifications went in, 150 
people that have tried to register to vote that were still in 
that disqualification status. So we think with that tool, we 
are in pretty good shape as far as identifying those types of 
things.
    Mrs. Davis of California. Anybody else want to comment? I 
know your experiences are different. But I appreciate that. Is 
it a greater problem that we are purging too many from the 
voter rolls or there is too much deadwood on the rolls? I hate 
to use that word again in that way, but----
    Ms. Harris. I will speak to that, in that I have been in 
this business pre-NVRA, and I know there was a lot of concern 
when that act passed that there would be some major inflation 
of the voter rolls. And certain places did experience that. I 
think Virginia's long history of having access to the full 
Social Security number and having used that as the unique 
identifier for the voter for many years kept our rolls 
particularly clean--in addition to the fact that we have a full 
general election every November. We don't vote only in off 
years.
    I did not see any sort of dramatic rise in our voter 
registration rolls immediately following NVRA. So it seemed to 
remain fairly consistent. In the first few years before the 
initial purge under the provisions of NVRA, we did see some 
additions to the rolls, but I think that was pretty well kept 
between the active and the inactive status. It was fairly 
clearly identified which voters were in that questionable 
status that we needed to determine further their eligibility.
    Ms. Hollarn. I think when we had to reinstate all the 
inactives to the active rolls in January 1995, there was. And 
it took several years--well, it was 2000--I mean 1997 before we 
could address the list maintenance for that. But it has 
eventually worked out. But I think there is a combination of 
things.
    First of all, we are actually not different. It is just 
that Florida does not require Social Security numbers. So an 
applicant has the choice of putting either the Florida driver's 
license or the last four of the Social. So if one can gain 
access to a place to get mail that is a legitimate address and 
put down any four numbers for a Social, that is why we have 
people there that we can't identify. Okay.
    But I do not think that kind of error on the part of the 
voter, shall we say, carries over to voting as much. But the 
list maintenance itself has worked itself out. And this dead 
wood I think in some ways is an unfair term, because these are 
genuine people who have become detached from the electoral 
process for many other reasons.
    Mrs. Davis of California. Okay. Thank you very much.
    The Chairwoman. The gentlelady's time has expired.
    We turn to the gentleman from Michigan, Mr. Ehlers, for his 
5 minutes.
    Mr. Ehlers. Thank you very much. And first of all, Mr. 
Nelson, I have a lot of respect for South Dakota because I grew 
up in Pipestone, Minnesota, just across the border.
    Mr. Nelson. Thank you.
    Mr. Ehlers. And once a year we made an annual shopping trek 
to Sioux Falls----
    Mr. Nelson. Very good.
    Mr. Ehlers [continuing]. Which was the nearest major 
metropolitan area.
    Mr. Nelson. Very good.
    Mr. Ehlers. But the people of South Dakota are, as far as I 
can tell, very straight arrow. And you probably have less 
problems than most people. I was surprised to hear that you 
have several hundred that you had to clean off the rolls, which 
is not a huge number, but it surprised me that you had any. If 
you have that many, there must be other States with a lot more.
    I was concerned about your comment that, you know, it takes 
10 years to clear someone from the rolls, which is 30 
elections. That is a long time. Now, is that delay due to State 
law or Federal law?
    Mr. Nelson. And if I could just clarify, 10 years is what I 
was proposing. Under current Federal law it is indefinite. As 
long as this card goes in a post office box someplace, that 
name will stay on for 2 more years. And as long as it goes in a 
box 2 years down the road it stays on for another 2 years. It 
will stay on forever, until that card actually comes back. And, 
of course, whether or not that card goes in the box or comes 
back is entirely up to the postal worker.
    Mr. Ehlers. Okay. In Michigan, I think we were the first 
State to develop the statewide voter registration list. It is 
handled by the Secretary of State, who also is in charge of 
driver's licenses. So early on, in fact I think over 15 years 
ago now, those lists basically were married in some fashion--
perhaps not married, but at least in an adulterous 
relationship--where if you move and get a new driver's license, 
as I understand the system, your voter registration is 
automatically moved to the new address that you give.
    Also, unfortunately, we don't have the person from Michigan 
here to testify, but I believe also if you move out of State 
you get an out-of-State license, that State then notifies 
Michigan that this license has been issued, therefore the old 
license dies. And I believe that person is either removed from 
the rolls or put in an inactive status. That has a healthy 
effect on purging the list of people who have moved away. Has 
your State considered doing that?
    Mr. Nelson. We have not merged those two lists. As NVRA 
requires, we certainly have electronic voter registration at 
the driver's license agency. You check the box and you can 
change your registration. We have not gone to the length that 
Michigan has to pull those two lists together. But even in 
Michigan's scenario, if somebody moves but does not change 
their driver's license address and no longer is involved in the 
process, and this address verification card goes out, as long 
as it goes into a box someplace the name is going to stay on 
the list.
    Mr. Ehlers. Well, it is a crime in Michigan to not give 
your change of address to the Secretary of State. And certainly 
you have to do it when the license expires or you won't get it. 
So it is at least a shorter time.
    I want to also ask, and I think Mr. Leake, let me ask you 
this question. Some States, in fact many States use voter 
registration lists for the jury pool. We have heard reports, in 
fact we had it happen in my State of Michigan once, that jurors 
declined to serve on the jury because they were not citizens of 
the United States, but yet they got on the list by virtue of 
declaring they were citizens. Do you have any difficulty with 
that in North Carolina?
    Mr. Leake. No, sir. I am a trial attorney, and in fact in 
North Carolina the registration lists are a component of the 
jury venire. And I have never, in my 32 years practicing law, 
encountered that problem nor heard of it as it relates to a 
juror that came off a registration list.
    Mr. Ehlers. How about Virginia or Florida?
    Ms. Harris. In Virginia, I have heard instances where an 
individual has said they are not a citizen for the purposes of 
serving on a jury, and that was later determined to be the 
false statement, not the original registration. And part of our 
outreach efforts is always reminding voters that, as was said 
earlier, the voter registration list is not the sole source of 
jury. We have people that refuse to register to vote because 
they don't want to serve on juries.
    Mr. Ehlers. Okay.
    Ms. Hollarn. In Florida in 1998 we changed the jury list to 
come from 18-year-olds on the driver's license rolls rather 
than the voter registration for that very reason. And the 
biggest problem we have is no-shows to the juries, which now 
some of the courts are holding those people in contempt. But 
also with the driver's license, in Florida it costs $10 to 
change your address on your driver's license. So many people 
ignore that, and the only time it comes to light is if they are 
involved in some sort of traffic incident where their 
driver's--they have to verify that is their license. And then 
that becomes an additional violation for not having the correct 
address. But they will automatically take their address change 
for voter registration at the same time they do change an 
address at driver's license.
    Mr. Ehlers. Thank you. In Michigan I believe we do not 
charge for changing addresses.
    The Chairwoman. The gentleman's time has expired. When you 
are 18, you never think you will get in an accident.
    Ms. Hollarn. And they do.
    The Chairwoman. I would just like to thank this panel for 
appearing and for your testimony, and invite the next panel to 
step forward. And also just to let Mr. Ehlers know that Chris 
Thomas, the staff tells me, was invited but was unable to 
attend today's hearing.
    We now invite our second panel to step forward. I would 
like to introduce, first, Deborah Goldberg. Deborah Goldberg is 
the Democracy Program Director at the Brennan Center for 
Justice at the NYU School of Law. Ms. Goldberg oversees the 
program's research, public education, and advocacy, all of 
which work to eliminate barriers to full and equal political 
participation, and to ensure that public policy and 
institutions reflect the diverse voices and interests of 
democracy. Ms. Goldberg has testified on government reform 
before the U.S. Senate, the Federal Election Commission, and 
State legislative bodies.
    Following graduation from Harvard Law School, Ms. Goldberg 
clerked for two Federal judges, then-Judge Stephen Breyer of 
the U.S. Court of Appeals for the First Circuit, and the late 
Judge Constance Baker Motley of the U.S. District Court for the 
Southern District of New York. Before law school, she obtained 
a Ph.D. in philosophy from the Johns Hopkins University and 
taught for 3 years at Columbia University.
    Next we have Spencer Overton. Mr. Overton is a professor at 
the George Washington University Law School, where he 
specializes in democracy. Professor Overton's academic articles 
on election law have appeared in several leading law journals. 
In the past, Mr. Overton has served as a commissioner on the 
Jimmy Carter-James Baker Commission on Federal Election Reform, 
as well as the Commission on Presidential Nomination Timing and 
Scheduling. He is also currently serving on the boards of 
Common Cause, Demos, and the American Constitution Society.
    He received his B.A. From Hampton University and his law 
degree from Harvard University, and has appeared as a witness 
before this committee in the past.
    Next I would like to introduce Kristen Clarke. Ms. Clarke 
is co-director of the Political Participation Group at the 
NAACP Legal Defense and Educational Fund. At LDF, she handles a 
range of voting rights matters, including a constitutional 
challenge to the recently reauthorized provisions of the Voting 
Rights Act. Prior to joining LDF, Ms. Clarke worked for several 
years in the civil rights division of the U.S. Department of 
Justice. For 3 of those years she served as a trial attorney in 
the voting section of the division, where she handled 
enforcement efforts under the Voting Rights Act and the 
National Voter Registration Act.
    Ms. Clarke received her bachelor's degree from Harvard 
University and her juris doctor from Columbia Law School.
    And finally, we have the minority's witness, Robert 
Driscoll. He is a partner in Alston & Bird, LLP, and a partner 
in the litigation and trial practice group. He concentrates his 
practice on complex commercial litigation, government 
relations, white collar crime and related internal 
investigations, civil rights matters, and products liability. 
Prior to joining Alston & Bird, Mr. Driscoll served as deputy 
assistant Attorney General and chief of staff for the civil 
rights division of the United States Department of Justice, 
where in addition to providing policy, legal, and strategic 
advice to the assistant Attorney General and other members of 
the Department of Justice leadership, he oversaw the special 
litigation and educational opportunities sections.
    Mr. Driscoll graduated magna cum laude from Georgetown 
University with a degree in finance, and cum laude from the 
Georgetown University Law Center.
    And we do welcome each and every one of you. As you know 
from listening to our prior witnesses, your full statements 
will be made part of our official record of this hearing. We 
ask that your testimony be given in about 5 minutes. And when 
the red light goes on, your time is up. And that will give us 
time also to ask questions.

STATEMENTS OF DEBORAH GOLDBERG, DIRECTOR OF DEMOCRACY PROGRAM, 
   BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW; SPENCER 
   OVERTON, PROFESSOR, THE GEORGE WASHINGTON UNIVERSITY LAW 
 SCHOOL; KIRSTEN CLARKE, CO-DIRECTOR, POLITICAL PARTICIPATION 
  GROUP NAACP LEGAL DEFENSE FUND, INC.; AND ROBERT DRISCOLL, 
                  PARTNER, ALSTON & BIRD, LLP

    The Chairwoman. So, if we may hear first from Ms. Goldberg.

                 STATEMENT OF DEBORAH GOLDBERG

    Ms. Goldberg. Thank you very much.
    The Chairwoman. Would you please turn your microphone on?
    Ms. Goldberg. Thank you very much----
    The Chairwoman. Much better.
    Ms. Goldberg [continuing]. Madam Chair, members of the 
committee, for holding this hearing and for permitting me to 
come and speak to you about the work that we have done on voter 
registration and list maintenance.
    The Brennan Center for Justice is a nonpartisan think tank 
and advocacy organization that focuses on issues of democracy 
and justice. We are deeply involved in the effort to ensure 
fair and accurate voting and voter registration systems, and to 
promote policies that maximize participation in our elections. 
We have done extensive work on the subject of voter 
registration and the maintenance of voter registration lists, 
including several studies and reports. We have published a 50-
State study of the verification procedures used for getting 
people onto the list. We have published a study on voter 
caging. And we will shortly be publishing two new reports, one 
called ``The Truth About Voter Fraud,'' and the other on purge 
procedures.
    In addition, we provide assistance to Federal and State 
administrative and legislative bodies with responsibility over 
elections. And, when necessary, we litigate to compel States to 
comply with their obligations under Federal law and the 
Constitution.
    In my written testimony, I describe three areas of concern 
that warrant congressional attention and action.
    First, notwithstanding the Help America Vote Act, citizens 
are having problems getting onto voter lists because some 
States, including both South Dakota and Florida, are unlawfully 
using data entry errors and other circumstances that are 
totally unrelated to the eligibility of a voter as the basis 
for rejecting voter registration forms.
    Ms. Goldberg. Second, fully eligible and properly 
registered eligible voters are being unlawfully kicked off 
voter rolls because of poorly designed purges that are 
conducted in secret and without adequate protections against 
errors.
    Third, the Department of Justice has recently been 
pressuring States to conduct overly aggressive purges while it 
ignores its duty to enforce the provision of the National Voter 
Registration Act that requires States to facilitate voter 
registration. Congress can address all of these concerns by 
adopting the series of recommendations that I set forth in my 
written testimony. I don't have time to go through them all 
here, but I am happy to discuss them with you if you have 
specific questions.
    When you review our recommendations, you will see that they 
are all informed by one core principle: We believe that the 
right to vote is the most fundamental right of our democracy. 
It is the right that is preservative of all other rights. 
Without its full and equal exercise we place the freedom envied 
by the rest of the world in serious jeopardy.
    In this Nation we treasure our freedom. Because that 
freedom is so important, we have a presumption of innocence in 
our courts. We do not deprive someone of his or her liberty 
unless we have evidence of guilt beyond a reasonable doubt. We 
do not lightly risk the liberties of an innocent person, we put 
our thumb on the scale in favor of freedom. Because it is the 
bulwark of our freedom, the right to vote also deserves the 
most vigorous defense that we can provide.
    When Americans seek to register and vote, they should be 
protected by a presumption of eligibility just as they are 
protected by the presumption of innocence. We should be able to 
rebut the presumption of eligibility only with concrete and 
convincing evidence that a person is not legally entitled to 
vote. We should not lightly risk the voting rights of our 
citizens. We should put our thumb on the scale in favor of 
universal registration and universal suffrage.
    Under this principle, Congress should be making every 
effort to facilitate registration and voting. In the context of 
today's hearing our commitment to the fundamental right to vote 
requires that Congress set policies to help citizens get on and 
stay on voting lists.
    Congress also should continue to exercise vigorous 
oversight over the Department of Justice and hold individual 
Department of Justice officials accountable for policies that 
erect unnecessary and unlawful barriers to registration and 
voting. Congress can do this by adopting the Brennan Center's 
recommendations, and we urge you to do so without delay.
    In brief, those recommendations affect both the process of 
getting on the list and the process of getting off the list. To 
facilitate getting on the list there should be flexible 
standards for verifying voter information, and there should be 
generous opportunities to correct inaccuracies or minor things 
that do not affect eligibility. In terms of taking people off 
the list, we recognize that accurate lists are important to the 
integrity of our elections and purges must take place, but they 
should be transparent to the public. We should know when, why, 
how and by whom purges are being conducted. Moreover, the 
purges should be conducted pursuant to uniform and 
nondiscriminatory standards that allow for correction of error 
and facilitate reinstatement when there has been a mistake.
    [The statement of Ms. Goldberg follows:]

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    The Chairwoman. Thank you very much, Ms. Goldberg.
    Professor Overton.

                  STATEMENT OF SPENCER OVERTON

    Mr. Overton. Madam Chair, Mr. McCarthy, thank you so much 
for having me. I am here today to talk about problems related 
to voter caging.
    Voter caging happens when a political party or another 
political entity sends mail to registered voters, the political 
party then collects the mail that comes back as undeliverable, 
adds those names to a caging list and then challenges voters on 
the caging list as not validly registered.
    Now, let me be clear up front, I agree that only legitimate 
voters should cast ballots at the polls. I am not a mind 
reader, I am not here to testify that all people who use voter 
caging to prevent fraud want to suppress legitimate voting. 
Also, I agree that caging is a perfectly fine process for mass 
marketers to ensure that they don't spend money mailing junk 
mail to bad addresses. Instead, my claim is that caging alone 
is a bad tool to challenge and purge voters.
    Madam Chair, as you mentioned, legitimate voters show up on 
caging lists all the time. In 2004, legitimate voters like 
college students away at school, members of military stationed 
in Iraq, homeless people and people who lived in apartment 
buildings were on these caging lists who were legitimate 
voters. Mail may be returned as undeliverable because the 
registration lists have data entry errors such as the fact that 
an apartment unit number is not listed. In a spot check of a 
caging list in Milwaukee in 2004 approximately 20 percent of 
the addresses had data entry problems.
    Now, when a consumer erroneously ends up on a mass 
marketer's caging list, the result is you get one less piece of 
junk mail, which isn't always a bad thing. But when a citizen 
erroneously ends up on a voter caging list, the consequences 
are more severe. In Florida, for example, a challenged voter 
doesn't have a chance to prove that he or she is legitimate, 
they just have to cast a legitimate ballot, which is less 
likely to be counted here. And there's some other problems that 
will be on the Wiki that I mentioned, the Web site in terms of 
my written testimony.
    Voter caging is also a problem because it doesn't represent 
uniform enforcement of the law. In Georgia in 2004, for 
example, three people gathered the names of 123 voters with 
Hispanic surnames in a rural county, Atkinson County, and they 
challenged 95 of them. Now, some of the voters went down and 
showed their proof of citizenship until someone spoke up and 
said, hey, this is a problem. And eventually the board said 
these challenges are illegitimate, they violate the Voting 
Rights Act.
    In Florida in 2004, Republicans created a caging list of 
Duvall County. Of those who could be identified, one study 
showed that 76 percent were Democrats and 69 percent were 
people of color. Now, it is possible that Democrats or people 
of color were overrepresented in the caging lists because they 
were overrepresented on the list of newly registered voters. 
That is very possible. The problem is with private targeted 
enforcement we never know. Political operatives regularly 
engage in targeted practices like gerrymandering and targeted 
messaging, and it is maybe difficult for them to distinguish 
between those practices and targeted voter caging.
    I think that Congress should have additional hearings on 
caging, consider legislation to stop caging. This is a national 
problem. E-mails and other evidence show national involvement 
to engage in voter caging in the 2004 presidential swing States 
across the country.
    Federal legislation is also needed to provide clear 
guidance. The law is murky on voter caging. Voter caging 
litigation often happens in the days just before a major 
presidential election. Partisan emotions are high. It is 
difficult to gather all the relevant evidence. And as a result, 
Federal judges have been split as to whether or not to stop 
voter caging.
    We do need to have a real discussion about fraud and 
access. But voter caging is not the answer to fighting fraud. 
The right to vote is more important than junk mail. Thank you.
    [The statement of Mr. Overton follows:]
    
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    The Chairwoman. Thank you very much, Professor. Ms. Clarke.

                  STATEMENT OF KRISTEN CLARKE

    Ms. Clarke. Madam Chair, Representative McCarthy, I am 
honored to have the opportunity to appear before you this 
afternoon to share our views regarding voter registration and 
list maintenance issues.
    The NAACP Legal Defense Fund is the Nation's oldest civil 
rights law firm. We serve as legal counsel for African 
Americans in a number of important Federal voting rights cases 
and have also been very active in congressional efforts 
regarding all of the major legislation affecting minority 
voting rights over the last several decades.
    In recent years, we have witnessed the emergence of several 
threats to the registration status of minority voters, 
including the development and implementation of purge programs 
that rely upon flawed matching methodology, challenges mounted 
against voters inside polling places, and noncompliance with 
the mandates of the National Voter Registration Act. Together, 
these trends threaten the fragile gains that have been made 
with respect to registration rates among minority voters.
    The NVRA requires that any voter removal or purge program 
be both uniform and nondiscriminatory. Although purge programs 
ostensibly seek to preserve the integrity and accuracy of our 
election rolls, such programs also run the grave risk of 
disqualifying large numbers of qualified registrants if they 
are too broad in scope.
    In addition, these programs place the great burden of 
reregistration squarely on impacted citizens and can thus 
discourage voters from participating in the electoral process.
    A recent purge program carried out in Louisiana provides 
one stark example of a program that is both overly broad with 
respect to the persons targeted for removal and with respect to 
the amount of discretion given to election officials charged 
with the task of striking voters from the rolls.
    Just this past June, Louisiana officials began implementing 
a purge program that sought to remove voters who were presumed 
to be ineligible because their names appeared on the 
registration rolls in more than one State. Over 55,000 voters 
were targeted for removal. Persons deemed to be dual 
registrants were identified through a database matching system 
that used out-of-state voter registration lists to conduct 
comparisons of last names, first names, and date of births for 
matching purposes. Now, where other States employed different 
voter registration list maintenance procedures, attempts to 
conduct out-of-state matches of this type can be both difficult 
and error prone.
    In Louisiana, registrars were instructed that a ``Lisa A. 
Anderson'' and ``Lisa Pruitt Anderson'' could be considered a 
match, because with many female voters, according to one 
Louisiana election official, one registration may be under 
their middle name and one may be under their maiden name as 
their middle name.
    Indeed, this particular purge program is one that has 
proven to be both overly broad in scope and unscientific in its 
matching methodology. Ultimately, over 12,000 voters were 
stricken from the rolls. These voters were removed and were 
likely ineligible to participate in very important elections 
conducted this past Saturday in Louisiana.
    Recent problems that emerged in Louisiana following a 
canvas of the State election rolls also suggest the need to 
revisit the rules and procedures used by registrars to update 
voter registration lists. Following Hurricane Katrina, 
Louisiana suspended its annual canvass of its rolls in light 
the mass displacement of voters. However, this spring, Orleans 
Parish proceeded to canvass its rolls relying upon change of 
address information supplied by the U.S. Postal Service.
    The effects of this canvass were widely felt this past 
Saturday as voters went to their polling place only to learn 
that they had been reassigned to a new location. One voter, 
Sheronda Williams, was reassigned to a polling location outside 
of her home district to one near her place of business in the 
downtown New Orleans area where she had been receiving mail 
since the storm. The Registrar of Voters indicated this past 
Saturday that there were hundreds, if not thousands, of voters 
in New Orleans alone who were impacted by this prematurely 
conducted canvass.
    In recent years, we have also witnessed challenges 
permitted under the laws of most States standing as a threat to 
the registration status of many voters, particularly minority 
voters. Notwithstanding the intimidating effect such challenges 
can have, it is important to consider whether the information 
presented by challengers can be used to prevent somebody from 
casting a ballot on election day and subsequently be used to 
strike that voter permanently from the rolls.
    In conclusion, recent efforts to remove voters deemed no 
longer eligible to vote, including the recent purge program in 
Louisiana, should be carefully scrutinized and examined to 
ensure that they do not result in the removal of otherwise 
eligible voters.
    Thank you.
    [The statement of Ms. Clarke follows:]

    
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    The Chairwoman. Thank you very much.
    Now we turn to Mr. Driscoll for your 5 minutes of 
testimony.

                  STATEMENT OF ROBERT DRISCOLL

    Mr. Driscoll. Thank you, Madam Chair, Ranking Member 
McCarthy. I am Bob Driscoll. I am a partner at Alston & Bird in 
Washington.
    From 2001 to 2003, I was the Chief of Staff and Deputy 
Assistant Attorney General in the Civil Rights Division at the 
Department of Justice. In that role, I worked on a variety of 
issues, some voting related and also racial profiling issues, 
desegregation and police misconduct.
    Today I want to talk some about balancing the voters' need 
for access to the polls with ensuring ballot integrity. I 
really think it is important because I have probably a 
different view from some of my colleagues on the panel. There 
really is a balance that needs to be struck in those areas, and 
I think that Congress tried to strike a balance with NVRA and 
with HAVA, and particularly I see the Justice Department today 
coming in for a lot of criticism for enforcing certain 
provisions of those laws, and I am here to point out that when 
one is sitting in the chair over at 950 Pennsylvania Avenue one 
isn't given the choice as to which laws to enforce. One 
enforces the laws that Congress passed. People may raise great 
issues as to whether the balance should be altered in terms of 
purges and voter rolls versus access issues, but those laws are 
on the books and they are there to be enforced. At least when I 
was there we viewed it as not optional.
    Now, if anyone has any evidence that those laws are being 
enforced in an improperly or partisan or improper way, that 
would be great to hear, and that is the point of oversight 
hearings and things like that. I think the philosophical point 
is the voter access issues have to be balanced against concerns 
of voter integrity and voter fraud, and that is what Congress 
attempted to do both with NVRA and with HAVA.
    I would disagree with my fellow panelist, Ms. Goldberg, 
that this equation between all we have adopted in the criminal 
law--the notion that it is better that four guilty men go free 
than one innocent man be convicted. I think in the voting 
rights context the analogy doesn't hold up because when someone 
votes who shouldn't it effectively cancels out the vote of a 
legitimate voter.
    So one cannot have such a bias completely in favor of 
access at any cost with no consideration of fraud or integrity 
issues, or else you end up in a situation where legitimate 
voters are having their ballots ignored essentially at the 
polls. I think that is the balance that the Department tries to 
strike and the Congress tries to strike, and I think the 
subcommittee--it would be a disservice not to at least be 
reminded a little bit that the voter integrity issues are real 
and are legitimate.
    I would point out the Carter-Baker Commission did note that 
these issues of voter integrity affect voter morale and can 
depress turnout if people don't have confidence that the system 
works well and that the vote is really going to count. The 
Supreme Court noted the same thing in its Purcell decision 
having do with Arizona last term as well.
    So I think those are two sources that are recognized that 
this goes beyond the particular integrity issue one could point 
out in a given State about whether or not dead people have 
voted or whether or not people were voting in two different 
States. But there is also the perception of integrity that is 
important to encourage people to vote to maximize voter turnout 
at the end of the day.
    My written statement is submitted for the record. I just 
wanted to touch on those issues in my oral testimony. Thank you 
very much, Madam Chair.
    [The statement of Mr. Driscoll follows:]
    
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    The Chairwoman. Thank you very much. I would invite the 
ranking member if he wishes to proceed first or I can go first.
    Mr. McCarthy. I will just stay with tradition and allow you 
to go first.
    The Chairwoman. All righty.
    Let me ask you, Mr. Driscoll, you talk about enforcing all 
the laws at the DOJ and it may just be that I didn't hear about 
it, but NVRA enforcement has been stepped up, I think we all 
acknowledge that, but I don't think, at least I have not heard, 
that the DOJ has taken any steps to enforce section 7 requiring 
State social service agencies to provide registration 
opportunities to their clients. Am I incorrect on that?
    Mr. Driscoll. You would have to talk to the Department to 
get the statistics. I recall just anecdotally from when I was 
there and I recall recently that there have been cases brought 
under both section 7 and 8.
    The Chairwoman. I have never heard of one. I wonder if you 
know and, since you are not with the Department of Justice 
anymore, maybe we will ask them that directly.
    Mr. Driscoll. I would ask the question, but I think several 
States have been compelled by the Department to step up. 
Providing, I think, access of social service agencies was the 
concern in some of those matters.
    The Chairwoman. Let me ask you, Professor, you were a 
member of the Carter-Baker Commission. One of the things I 
recall your saying when you were here in the 109th Congress was 
that it would be improper to adversely impact the ability of 
100 Americans to vote in an effort to find one fraudulent 
voter; that would be disenfranchising 100 Americans to one non-
American. Was it the Commission's view otherwise that you 
should go ahead and do that because it was bad for morale?
    Mr. Overton. Unfortunately, our commission didn't really 
look at data in terms of how many fraudulent voters would be 
excluded by, let's say, a photo ID requirement and how many 
legitimate voters would be excluded. One of the rationales was 
that particular voters might be discouraged and that might 
suppress voter turnout.
    My criticism of the majority was that it wasn't based on 
data, it was totally speculative.
    So for example, I could say, well, because of these photo 
ID requirements people are just not going to come out, they are 
going to think that people are trying to suppress their vote 
and that is going to drive down voter access. So it is all 
speculative. And that would also be like saying, hey, good 
people who are in a State like the literacy test and they 
believe that if we don't have it and uneducated people are 
casting a ballot, well, then, you know, the system doesn't have 
any integrity.
    The Chairwoman. I see.
    Mr. Overton. We have got these masses who are just making 
bad decisions and they won't come out. So I think evidence is 
important here.
    The Chairwoman. Evidence is important.
    Let me ask you about a court case that I recently learned 
about actually, a 1981 prohibition to the RNC from caging 
voters based on race. As I understand it, that order was to the 
RNC only, it didn't affect State parties or other entities. 
That concerns me. Vote caging sounds like some innocent thing, 
but I recently did some more research more from the report we 
got from the U.S. Attorney's inquiry in the Judiciary 
Department. If you go in and do a proactive sample in a 
neighborhood that is heavily minority and the mail is returned 
for a lot of reasons, that can happen for a lot of reasons, you 
will have a disproportionate impact on minority voters. Is that 
why the 1981 judgment was made; do you know?
    Mr. Overton. Well, actually, with that judgment in 
particular, the court prohibited the RNC to engage in balance 
integrity programs without permission from the court.
    Now the response by the RNC in 2004 was, well, these are 
states that are engaging in this behavior, we are not engaging 
in this behavior. The response by others was, well, there are 
e-mails and there is other correspondence between the State 
parties and the RNC that suggests that the RNC is engaged and 
involved in this. And that New Jersey court, in fact, 
prohibited the RNC from continuing.
    The Chairwoman. Let me ask you this in the remaining time I 
have, is there legislative action that could be taken that 
would prohibit any political party from engaging in caging that 
had an adverse impact on racial minorities or was motivated by 
suppressing minority votes?
    Mr. Overton. Certainly caging legislation has been adopted 
in a place--like Minnesota has caging legislation. And we could 
have that type of legislation nationwide again. It is 
particularly important because in the days before an election, 
you know, judges, there is not much law out here, their 
political whims are pulling different judges in different ways. 
And so to have some clear guidance, based on hearings with 
experts, you know, extensive evidentiary effort that comes up 
with good law will provide guidance to judges and to political 
parties.
    The Chairwoman. Inexplicably I have used up 5 minutes. I 
can't believe that. So I will stop and turn to the ranking 
member, Mr. McCarthy.
    Mr. McCarthy. Thank you, Madam Chair.
    I just want to follow up on caging and see if I understand 
it right. So one political party went and mailed into an area 
that was disproportionate of another party to determine an 
outcome?
    Mr. Overton. Well, that is the assumption with some caging 
activities. Like in Nevada the former State Chair of the 
Republican Party explicitly said, hey, I am partisan, I am 
sending it to Democrats. With other places, like Florida, some 
Republicans were on the list.
    Mr. McCarthy. Was it disproportionate like 3:1?
    Mr. Overton. I think it was disproportionately Democrats 
who were on the list in Florida.
    Mr. McCarthy. Just to determine an outcome, you would know 
the outcome that is going to happen that way?
    Mr. Overton. I suppose so. I don't know about the motives 
of the people in Florida. I know it is about the motives of the 
person in Nevada only because he said what his motives were. 
With regard to the other people, I don't know the motives. I do 
know that this caging is imprecise and I also know that it 
ended up that certain people, African Americans and Democrats, 
were disproportionately represented on these caging lists.
    Mr. McCarthy. I agree with you, if you set something up 
where you take something 3:1 or 8:2, you are determining the 
outcome of the information that could be gathered. I feel what 
you are talking about.
    Mrs. Goldberg, you had said in your policy testimony about 
no match, no vote. Based upon what Mr. Driscoll said--this is 
how I understand it, you correct me if I am wrong, and if I 
could dwell on a couple different conversations with you to try 
to see where it goes--if a person registers by mail and a 
person registers in person, do you think there is any more 
accountability to look at any information or should that all be 
treated exactly the same?
    Ms. Goldberg. To be honest, I am not sure I have given that 
much thought to the question. I do know that under current law 
they are treated differently. A first-time registrant who 
registers by mail is going to be subject to different 
requirements than someone who registers in person, unless they 
can provide with their mail-in registration the data that is 
authorized under the Help America Vote Act.
    Mr. McCarthy. What if a person registered for the first 
time, registers by mail, doesn't put down their driver's 
license or doesn't put down the Social Security number? Do you 
feel there is any rationale for accountability there to look 
for more information or you put them on the rolls and they are 
fine?
    Ms. Goldberg. There is no evidence that we know of that the 
types of requirements that are being implemented under HAVA are 
disenfranchising people who are first-time mail-in registrants. 
None of this has anything to do with no match, no vote. No 
match, no vote has to do with people who actually do provide 
the information on their voter registration forms and then the 
State tries to match that information with other databases. And 
what we have documented is that those procedures, unless they 
are flexible and take into account a lot of common data entry 
errors, will disenfranchise substantial numbers of people, keep 
people off the voter registration rolls.
    Mr. McCarthy. If you try to match them.
    Ms. Goldberg. If you require a very strict match.
    Mr. McCarthy. But if I didn't require the match, and I 
asked you the first question I asked, with the driver's 
license, no Social Security, and you were a mail-in and you 
were a first-time, am I correct in your answer saying there 
would be no disenfranchising of a person?
    Ms. Goldberg. No. What I said was that if there is no 
match, then asking the voter to provide the evidence of 
identity at the polls that is required under HAVA has not been 
shown to disenfranchise people. The HAVA requirements are not 
requirements that at this point we take great issue with. What 
we do take great issue with is the very strict matching 
policies that keep people who do provide numbers off the voter 
rolls because of data entry errors or because there is somebody 
who is registered under one name and has a driver's license 
under a married name, different things of that sort.
    Mr. McCarthy. If I go down the row--you give me a yes or no 
to this one--should State agencies like welfare offices be 
allowed to ask an individual if he or she is a citizen before 
offering that person a voter registration form?
    Ms. Goldberg. The person who receives a voter registration 
form will be asked that question. It is on the voter 
registration form.
    Mr. McCarthy. But prior to giving a person a voter 
registration form, should the welfare worker ask the individual 
if they are a citizen prior to giving it to them?
    Ms. Goldberg. Off the top of my head, it seems to me that 
what I would prefer is have the person assist the client with 
the registration procedure, which would require asking that 
question.
    Mr. McCarthy. I notice I am out of time.
    Madam Chair, if I could just submit to you pursuant to 
House rules, clause 11, requesting minority member subcommittee 
hearing, and I yield back.
    The Chairwoman. This will be received and dealt with 
according to the rules.
    Let me just thank this panel for your excellent testimony. 
I wish we could be here all afternoon and ask additional 
questions, but that is not possible. Under the rules we have 5 
legislative days to pose additional questions and we may take 
advantage of that. And if we do, the Chair will forward you the 
questions from all the committee members and we would ask if 
you would try to respond as promptly as possible.
    With that, thank you so much. People don't realize that our 
witnesses here today and every day are volunteers just trying 
to make the country a better place, and we appreciate the 
contribution that each of you made in that regard. Thank you 
very much.
    [The information follows:]
    [Whereupon, at 4:10 p.m., the subcommittee was adjourned.]

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