[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
__________
Printed for the use of the
Committee on House Administration
Available on the Internet:
http://www.gpoaccess.gov/congress/house/administration/index.html
U.S. GOVERNMENT PRINTING OFFICE
40-619 PDF WASHINGTON DC: 2008
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairwoman. Without objection, that testimony is
entered into the record.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairwoman. Other members will have their statements
entered into the record.
[The statement of Mr. Ehlers follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]