[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT HEARING ON ELECTION DAY REGISTRATION AND PROVISIONAL VOTING
=======================================================================
HEARING
Before The
SUBCOMMITTEE ON ELECTIONS
COMMITTEE ON HOUSE ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
HELD IN WASHINGTON, DC, NOVEMBER 9, 2007
__________
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COMMITTEE ON HOUSE ADMINISTRATION
ROBERT A. BRADY, Pennsylvania, Chairman
ZOE LOFGREN, California, VERNON J. EHLERS, Michigan,
Vice-Chairman 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
OVERSIGHT HEARING ON ELECTION
DAY REGISTRATION AND PROVISIONAL
VOTING
FRIDAY, NOVEMBER 9, 2007
House of Representatives,
Subcommittee on Elections,
Committee on House Administration,
Washington, DC.
The subcommittee met, pursuant to call, at 10 a.m., in room
1310, Longworth House Office Building, Hon. Zoe Lofgren
(chairwoman of the subcommittee) Presiding.
Present: Representatives Lofgren, Ehlers, McCarthy, Davis
of California and Davis of Alabama.
Also Present: Representative Ellison.
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; Roman Buhler, Minority Election Counsel; and Bryan T.
Dorsey, Minority Professional Staff.
Ms. Lofgren. As it is 10:00, we would like to begin the
hearing, if we could. So, good morning, and welcome to the
Subcommittee on Elections and this hearing on Election Day
Registration and Provisional Voting.
Section 302 of the Help America Vote Act, known as HAVA,
outlined the provisional balloting process, but left room for
the States to determine the procedure. This includes who
qualifies as a registered voter eligible to cast a provisional
ballot that will be counted, and in what jurisdiction the
ballot must be cast in order to be counted.
Generally, if a registered voter appears at a polling place
to vote in an election for Federal office, but either the
voter's name does not appear on the official list of eligible
voters or an election official asserts that the individual is
not eligible to vote, that voter must be permitted to cast a
provisional ballot.
After the 2004 election, there were several lawsuits on
whether a vote cast in the wrong precinct but the correct
county should be counted. The Sixth Circuit in Sandusky County
Democratic Party v. Blackwell held that ballots cast in a
precinct where the voter does not reside and which would be
invalid under State law are not required by HAVA to be
considered legal votes. Based on the court's interpretation of
HAVA, States have the discretion to determine how they define
jurisdiction for the purpose of counting provisional ballots.
However, the litigation clarified the right of the voter to be
directed to the correct precinct to vote and have their vote
counted as well as the right to a provisional ballot.
While States are primarily responsible for regulation of
Federal, State, and local elections, HAVA was an attempt to
allow more voters to have their ballots cast. However, with
varying State procedures on provisional balloting, some votes
in Federal elections are being counted and others are not. And,
according to the EAC report on provisional reporting in the
2004 election nationwide about 1.9 million votes, or 1.6
percent of the turnout, were cast as provisional ballots. Of
that number, more than 1.2 million, or just over 63 percent,
were counted.
Directly related to provisional voting is election day
registration, also called same-day registration. It allows
eligible voters to register and cast a ballot on election day.
EDR significantly increases the opportunity for all citizens to
cast a vote. According to Demos, the 2004 presidential
election, the seven EDR States had an average turnout 12
percent higher than that of non-EDR States.
The EDR has shown to have many benefits for voters. Earlier
this fall, the subcommittee held a hearing on committee list
maintenance, and we discussed the eligible voters who may have
been mistakenly purged from the voting rolls. EDR provides
those eligible voters an opportunity to vote and have their
vote counted, instead of taking the chance with a provisional
ballot which may not be counted.
EDR also provides another opportunity for people who have
not had time or have just become eligible and who have missed a
longer deadline or maybe just forgot to register to vote. And
beyond this, EDR leads to the enfranchisement of voters who
have recently moved and lower income voters. In States where
EDR is in place, it has resulted for lower costs for election
administrators because it eliminates the need for provisional
balloting.
Election day registration, however, is not without
criticism, particularly over whether allowing voters to cast
ballots on the same day they register fails to provide adequate
security and whether this allows for voter fraud. So I look
forward to the testimony from Demos and from the other
witnesses. Demos has done a study of the nearly 4,000 news
reports for the six EDR States over three Federal election
cycles, and found only 10 discrete instances of potential
fraud. Of course, there was only one case of voter
impersonation at the polls.
Our witnesses today will discuss the pros and cons of
election day registration and provisional voting. The panels
provide a State and local view of how these affect voter
participation and administration, as well as academic and
advocacy insights into these two issues.
[The statement of Ms. Lofgren follows:]
[GRAPHIC] [TIFF OMITTED] T0987A.001
[GRAPHIC] [TIFF OMITTED] T0987A.002
Ms. Lofgren. I would now like to recognize our ranking
member, Mr. McCarthy, for any opening statement he may make.
Mr. McCarthy. I thank you, Madam Chair. And I am excited
about continuing along these lines that we are continuing to
look at how people are allowed to vote in America. And the one
thing that we do want to always make sure is that we have the
ability to make it accessible to everyone. We want to make sure
we have checks and balances.
And as this committee continues to look at this, I continue
to ask that we make sure we gather all information from all
sides. Because, as you said in your opening statement, same day
voter registration, some States have it.
There are criticisms on both sides of the aisle. And one
thing that I think we are held accountable to as Members is
making sure we gather all the information, and that is why I
continue to ask that, as we move forward, that we don't limit
the number of people that can have witnesses here, that we make
sure we have a fair and balanced approach, one that has views
from all sides so we are able to gather all the information
before we make a decision.
Unfortunately, though, again, this committee has shifted
from the past history and tradition of being equal on that
basis and the witnesses have not been equal. So I would like to
submit under House rule XI a minority hearing so we can
continue to gather information.
[The following information was subsequently withdrawn by
Representative McCarthy. See page 189 of transcript.]
[The information follows:]
[GRAPHIC] [TIFF OMITTED] T0987A.003
Ms. Lofgren. I will accept this, and it will be dealt with
under the rules. I will note for the record that we did approve
a 6-4 witness ratio for this hearing, but the minority only
brought 3 witnesses, so there is nothing I can do about that.
Mr. McCarthy. Madam Chair, that would be the first time I
have heard of more than three witnesses being approved.
Ms. Lofgren. I did that personally earlier this week.
Mr. McCarthy. I would, one, want to thank you for that.
Two, I would like to meet with you afterwards then, because I
did not have knowledge of that and I am being told by my staff
they didn't. So I would, one, want to thank you for the 6-4,
and continue to ask that we keep a tradition of the 109th
Congress that we actually have 6-6. But thank you for
increasing to 6-4.
Ms. Lofgren. As I said, I don't want to delay this because
we do have a room full of witnesses and the public. I have
always been available for a discussion and would welcome one at
any time, but not at the hearing.
And now I would like to recognize our first two witnesses.
We have two Members of Congress.
First, we have Keith Ellison from Minnesota. Congressman
Ellison is a newly elected Member of Congress representing the
Fifth Congressional District of Minnesota, which includes the
City of Minneapolis and the surrounding suburbs. He previously
served two terms in the Minnesota State House of
Representatives, and while in the State legislature he served
on the Public Safety, Policy, and Finance Committee and the
Election and Civil Law Committee. Representative Ellison now
serves on the Financial Services and the Judiciary Committee,
along with me.
We welcome his testimony today. And, of course, he is the
author of the bill to provide for same-day election day
registration.
We also have Steve King of Iowa. Congressman King was
elected in 2002 to represent Iowa's Fifth Congressional
District. He serves on the House Small Business Committee, the
Committee on Agriculture, and he is also a member of the House
Judiciary Committee, serving on the Constitution and
Immigration Subcommittees. As a matter of fact, he is the
ranking member of the Immigration Subcommittee, which I chair.
Prior to joining Congress, he served in the Iowa State Senate
for 6 years, where he assumed roles as chairman of the State
Government Committee and vice chairman of the Oversight Budget
Committee.
And we welcome both of you today. You know the drill. Both
of your statements are made part of the official record. We
would ask you to limit your oral testimony to about 5 minutes.
And we will begin with you, Mr. Ellison.
STATEMENT OF THE HON. KEITH ELLISON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MINNESOTA
Mr. Ellison. Let me start by thanking you, Madam Chair, and
the Ranking Member McCarthy for holding this important hearing
on election day registration and provisional voting. Madam
Chair, I would also like to thank your staff and the House
Administration staff as well as my own staff who have done an
excellent job preparing for today.
I would also like to acknowledge the presence of Minnesota
Secretary of State Mark Ritchie, who is here to testify, and of
course our former Minnesota Secretary of State, Mary Kiffmeyer,
who is also here, and I thank them both for being here.
I am honored to be here to discuss the importance of
election day registration. Madam Chair, I am also committed and
passionate about election day voter registration, and I am so
committed to it that I introduced H.R. 2457, the Same Day Voter
Registration Act of 2007. We have 41 cosponsors. My
distinguished predecessor, Martin Sabo, championed this
legislation in years past, and I am honored to continue that
tradition, and I feel we have made some important progress in
our effort to extend voting rights to all Americans.
My home State of Minnesota has been a national leader when
it comes to elections and election administration. We
consistently rank in the top nationally in voter turnout. For
example, in the 2004 presidential elections 78 percent of
eligible voters in Minnesota cast a ballot. This is more than
18 percent higher than the national average. In 1998, a
nonpresidential year, there were nationally only 30 to 35
percent of eligible voters who cast a ballot. Voter turnout
topped out more than 60 percent.
Additionally, when it comes to election administration,
Minnesota consistently conducts one of the most efficient,
fraud free and error free elections time and time again. And
though I do believe some share credit--many people share credit
for Minnesota's national leadership on elections, credit needs
to go to committed public servants like Mark Ritchie and
several local officials who manage these elections.
Minnesota laws, like the same day voter registration
statute, have contributed to this stellar national reputation.
My home State enacted same day voter registration about almost
25 years ago.
Since the right to vote is such an important and
fundamental right, I believe the right to vote should not be
conditional on any ability to navigate bureaucracy or to meet
artificial and arbitrary deadlines.
America, Madam Chair, has consistently moved towards voter
access throughout its entire history: The 13th amendment
striking down involuntary servitude; the 14th amendment, which
actually incentivized voter participation of the newly freed
men; and of course the 15th amendment, which allowed for
universal male suffrage.
Of course, America wasn't done yet. The 19th amendment
allowed universal adult suffrage when it included and
recognized the right of women to vote in 1920.
But of course it didn't stop there. The 24th amendment
banned the poll taxes and other taxes associated with being a
barrier, a financial barrier to voting.
But then, in 1965 we saw the Voting Rights Act, which for
the first time really struck down all the tools, devices and
tricks that eliminated people from voter participation.
And then of course in the 1970s we lowered the voting age
to 18 years old.
Madam Chair, I believe that EDR is a logical extension of
America's ever increasing desire to see more and more people
express their view as to who should represent them in this
great representative democracy. I strongly encourage colleagues
in Congress to follow the lead of States like Minnesota to
enact same day voter registration.
Let me conclude by quoting from a New York Times op ed
piece written by a Republican and Democratic Secretaries of
State of Ohio and Maine. The quote is as follows: Though one of
us is Republican and the other is a Democrat, we can attest
that political affiliation isn't relevant here. This is a
policy election day registration that is good for voters
regardless of party and good for our democracy. When it comes
to elections, America is best served when all eligible voters
cast ballots, even those who miss the registration deadline.
And I might add, Madam Chair, that in my own State of
Minnesota we have seen Republican Governors elected and
reelected. We saw an Independent Party Governor, Governor
Ventura, elected. We have seen Democratic Governors elected.
And we have seen both houses shift back and forth. Same day
voter registration doesn't favor a party, it favors voters.
Madam Chair and members of the committee, I could not agree
more with both the Republican and Democrat Secretaries of State
of Idaho and Maine.
Thank you so much for the opportunity to testify this
morning.
Ms. Lofgren. Thank you very much, Mr. Ellison.
[The statement of Mr. Ellison follows:]
[GRAPHIC] [TIFF OMITTED] T0987A.004
[GRAPHIC] [TIFF OMITTED] T0987A.005
Ms. Lofgren. Mr. King.
STATEMENT OF THE HON. STEVE KING, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF IOWA
Mr. King. Thank you, Madam Chair and Ranking Member
McCarthy. I appreciate these hearings today. And I listened
carefully and attentively to the gentleman from Minnesota's
testimony, and I want to commend him for taking an initiative
on something he believes in, in fact to the point where we had
a conversation about these bills. And that I think was when the
gentleman from Minnesota became aware that I have taken an
entirely different position on this 180 degrees off. And I
would like to just take, if I could, the committee back through
some of those points that brought me to the position that I
have taken, and that is the 2000 elections.
This Nation and the world stood transfixed wondering who
would be the next leader of the free world. All eyes went to
Florida. We watched it 24/7. I was for 37 days investigating
the things that were coming up as allegations in Florida and
the challenge as to what would be counted as a legitimate vote
and what would not be counted as a legitimate vote.
At the time, I was the chairman of the Iowa State
Government Committee, and I knew the responsibility fell to me
to make any changes in the Iowa law if we were going to avoid
ever becoming a State in the position that Florida was in. And
while those 37 days unfolded, some say 36, it was 37 for me, I
chased down every rabbit trail on the Internet that I could
find for voter integrity, ballot integrity, and examined this
thing from a constitutional perspective, an historical
perspective, and also from the statutory perspective.
I believe in the concept of federalism. This is something
that we have left to the State. But the question that hangs out
here for anyone who takes a side on federalism, and that being
the States rights component of this, you still have to ask the
question: But for 527 votes in Florida, there would be a
different leader of the free world probably today. That changes
history. And this Nation is susceptible to decisions that are
made within the State.
Now, we are here talking about Federal legislation, but I
came to this conclusion that there was significant fraud taking
place in many places across the country. There was plenty of
evidence of that in different areas. I came to the conclusion
that we needed a voter registration list in each of the States
that would be free of duplicates, deceased, and, where the law
applies, felons, and that we need to verify that the people
that showed up to vote under the name that they alleged that
they had actually could prove that they were that person. That
means a picture ID. And, I believe that they should be citizens
and they should verify that they are citizens.
I would ask that the Secretary of State of each of the
States certify the citizenship of the people on the voter
registration roles. I think that the lists should be sorted and
crunched, and the most recent registration be the one retained,
and the duplicate registrations that might be in multiple
precincts or multiple counties or multiple States eventually
would be purged.
That is my view, because 527 people in Florida selected the
leader in the free world. When they did that, if there had been
just that many that cast illegitimate ballots and canceled out
the legitimate ballots that made that difference. It is as
egregious to have a legitimate ballot canceled out as it is to
tell someone who is legitimate that they can't vote. And I ran
into protection for opportunities for fraud.
And so as I look at this legislation, and I am opposed to
motor-voter, by the way, because that brings in people that
aren't citizens and brings in people that aren't legitimate to
vote in those precincts. But it gives them that opportunity
that, here is your driver's license, and now how would you like
to register to vote? The implication is that you are a citizen.
And I know that there are restraints on perjury charges, but
that isn't something that we have seen people use.
So, as I look down through this list of things; if someone
shows up to vote same day registration and their ballot goes
into the pot with everyone else and it is not a provisional
ballot, you have no way to correct the inequity that is there.
So I would say, first of all, if this legislation is to be
approved, it should be provisional ballots only for same day
registration.
I would also point the cause out here to say that you do
not have to produce an identification. You can walk in then and
allege to be anyone and no one can challenge who you are and
you are allowed to vote.
So, the limitations that we would have left if the Ellison
legislation is approved is any willing voter, any willing
traveler-voter can vote in any precinct they choose under an
unchallenged ballot, one that is not provisional that goes
right into the count with everyone else. And there is no way to
verify then. And if we lose our electoral process, we have to
have the maximum amount of integrity here, and this is
something that I would be willing to take significant political
loss on policies and issues that I care a lot about in order to
preserve this constitutional republic that depends, for
Democrats and Republicans, upon the integrity of the electoral
system.
We have seen the acrimony that came out of the questions in
Florida, and yet I haven't seen the evidence that there was
anything other than the appropriate result in those 2000
elections. But if we lose our faith in our electoral process,
if we fail to maintain the integrity that the American people
will demand of us, our electoral system will collapse around
us, and neither Republicans nor Democrats will be standing when
the dust settles.
So I want the maximum amount of integrity. I want to
preserve this system no matter who it advantages, Republicans
or Democrats. It is more important we preserve our
constitutional republic.
I conclude my oral testimony. Thank you, Madam Chair.
[The statement of Mr. King follows:]
[GRAPHIC] [TIFF OMITTED] T0987A.006
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[GRAPHIC] [TIFF OMITTED] T0987A.008
Ms. Lofgren. Thank you very much, Mr. King and Mr. Ellison.
I am advised that we will have votes at about 10:30, so we will
have time to throw a couple questions to our colleagues now, if
we wish, and then we will come back for the other two panels.
Mr. McCarthy.
Mr. McCarthy. Thank you, Madam Chair.
One, I want to thank both panels. This is what I always
envisioned. Before I gather information, I want both sides.
And, Mr. Ellison, I respect both opinions, Mr. King, you want
to make it easier for voters to be able to go vote. Mr. King's
concern is you want to make sure that there is integrity in the
election system. So, really, that is what I want to be able to
gather. I have a belief in both of you, and so I want to find
how we can make it that we get the voters to the polls but at
the same time we have trust in what elections are held.
Now, you want to take this nationwide. And I will tell you,
as we have gathered information here on other bills, we had the
Secretary of State from Vermont here talking about absentee
ballots. In Vermont, they don't even check your signature. And
her answer to me was: We trust everybody. We know everybody.
That may work in a very small State. I have concerns with that.
But putting things nationwide, I have great concerns.
One question I have for you, Mr. Ellison. If you vote, and
you have to vote to register that same day inside your bill. Is
that correct? First. And then, secondly, would you be open to
making that a provisional ballot? Because once you put that
into the mainstream, the ballot into the box, there is no way
of checking how that person voted. There is no way of checking
if there is any concerns or questions. That would be my first
question to you.
Mr. Ellison. Well, first of all, let me make sure I
understand what you are asking me. You are saying that you are
asking if someone wants to engage in same day voter
registration, would they be expected to register and vote on
the same day?
Mr. McCarthy. The way I read your bill, if you want to
register that same day, you have to vote. Am I reading it
wrong?
Mr. Ellison. I don't think you would be required to vote. I
think that you could--but you certainly would show up to the
polls in order to register to vote. So I think people would be
expected to vote and people would be expecting to vote. And I
would bet that people who show up would be there to vote. But I
don't read a fundamental requirement that you must vote if you
register on that day. In order to participate in that election,
you have to register in that vote.
Mr. McCarthy. So you don't have to vote if you register
that same day, on your bill?
Mr. Ellison. So basically you want to know, can you go in
and just register and then walk away?
Mr. McCarthy. Yes.
Mr. Ellison. I think a person could register to vote at any
time during the year to register for that election. To be able
to vote in that election, you would be expected to vote on that
day. But I don't think you would necessarily have to.
Mr. McCarthy. Now, what about that person voting a
provisional ballot instead of voting a regular ballot?
Mr. Ellison. I would not favor that, because I think we
have other protections to make certain that the person is who
they say that are. Now, remember, there has been talk about
photo IDs today. That is not what we are talking about here.
When you register to vote, when you register, not cast a ballot
but register, you would have to--and the State, there is
nothing in this bill to prohibit the State to require that you
identify yourself with valid identification in order to
register to vote.
Mr. McCarthy. Now, I know we are not talking about your
other bill. But you have introduced another bill, 4026, that
prohibits election officials from requiring an ID.
Mr. Ellison. Right.
Mr. McCarthy. I only bring that up because later that could
come into play here. Are you familiar within Milwaukee on their
same day registration where they had a task force. And I don't
know, in Minnesota you say there hasn't been any concerns and I
haven't found any yet, but in Milwaukee they had the FBI, the
chief of police, and they found 1,300 same day registrations
that were cast with problems. They found 141 that weren't even
inside the city. And I get concerns when you go statewide.
What checks and balances do you have in Minnesota in this
provision that you go forward now?
Mr. Ellison. Well, Minnesota has a long reputation of
having good clean elections. I think that you will hear that
from the former Secretary of State and the present one who will
testify today. But if you vote, if you fraudulently vote in
Minnesota, that is a felony offense. That subjects you to
serious criminal penalties, something that just people don't
do.
Also in Minnesota, we have provisions to challenge people.
So if you have substantive information that the person is not
who they say they are, there are provisions for challenges.
Mr. McCarthy. But if you challenge somebody, how do you
find that ballot of what they voted? Because if you do
provisional, it is off to the side. If you let them have the
exact same ballot when they are going in the same day and you
find the 141 or the 1,300, there is no way of knowing which
ballot was there or how they voted. So I am just wondering,
from a checks and balance point, how do you answer that
question?
Mr. Ellison. Well, the fact is, is that we have--it is a
crime to do. We have people who did challenge you. You have to
sign, you have to swear under penalty of perjury. And the fact
is, I can tell you that our track record has been excellent.
And so it is what we have been doing has been working. I mean,
if the proof of the pudding is in the tasting, elections in
Minnesota taste pretty good.
Mr. McCarthy. Just a quick second, yes or no. Would you be
open to, if you moved your bill forward, amending it that at
the beginning you make these individuals vote provisional to
make sure these checks and balances were there?
Mr. Ellison. Well, let me say this, Representative. I am
one who never says we won't talk, but I don't think I would
agree to that provisional provision.
Mr. McCarthy. Thank you for your time.
Ms. Lofgren. I would just like to ask Mr. Ellison about,
you have got a real experience here in your State in the whole
issue of voting, lots of times various hints of there is fraud.
But I would like to just take a look at, have there been any
prosecutions? Because that is the real proof. I remember going
to a hearing a year ago in August and all these wild comments
about it. But there has been no prosecutions. So the proof is
in the pudding. And what has been your experience in Minnesota?
Has anybody been prosecuted for fraud associated with this?
Mr. Ellison. Madam Chair, I cannot report any known cases
of convictions for election fraud. Now, we do have two
Secretaries of State coming behind me.
Ms. Lofgren. I will ask them, too.
Mr. Ellison. But I will just tell you that I am not
inexperienced on this. I have researched this. I have looked
into this carefully. And I have a close friend who some of my
Minnesota colleagues know very well; his name is Pat Diamond.
He is a tough prosecutor. He will charge you and toss you in
jail if you violate the law. And Pat Diamond, who is a
prosecutor in Hennepin County, he has told me that he has never
prosecuted an imposter voter case. This just hasn't happened.
And this is a gentleman who takes his role as a prosecutor
extremely seriously.
So I would like to know, but--so I guess the answer is no.
But there are better minds than mine here.
Ms. Lofgren. Now, what has happened to turnout in
Minnesota? Usually the problem is not one where people are
trying to fake it to vote, it is to try to get people to vote.
What has turnout been?
Mr. Ellison. Madam Chair, we have trouble getting people to
vote one time let alone two. But the fact is, voter turnout in
Minnesota is excellent. 78 percent.
Ms. Lofgren. 78 percent.
Mr. Ellison. We have experienced very high voter turnout.
We did have high voter turnout in the early years, 50s, 60s,
then it dipped. And since we enacted voter EDR, it dramatically
came back up to a point where we are real happy about.
Ms. Lofgren. Now, I remember the election of Governor
Ventura, I mean just reading about it. But it seemed to me from
the press reports that that just took off at the end, and that
it was people who had not been registered voters but who got
excited by his campaign after the registration would have been
over who actually decided to come forward; that he had touched
something in them and surprised the whole country that this guy
who no one thought was going to win won. Was that, do you
think, because of election day registration?
Mr. Ellison. Yes, I do. And I think it is a very good
thing. I think it is important to leave alone what kind of
Governor people thought Governor Ventura made.
Ms. Lofgren. It is up to the voters in Minnesota to decide,
not me.
Mr. Ellison. But they expressed a preference. Students
expressed a preference. People who had moved had expressed a
preference. I think that if what we are trying to do is most
closely approximate how people really feel, that EDR brings us
very close to that. Because of course, as you know, Madam
Chair, there is a lot of voter information that comes through
in the last days of the campaign. You know, people may not
focus, people are busy. But in that last month of the campaign
where an artificial deadline may cut you out, you can still
listen, read, focus, hear debates, and really make up your mind
as to who you want to vote for.
Ms. Lofgren. I am going to yield back my time because we
are being called to votes and I want Mr. Ehlers to have his
chance to ask questions before we run off to vote.
Mr. Ehlers. Thank you, Madam Chair.
Just in response to a previous question-and-answer
interchange with Mr. McCarthy. As I read the bill, you say: On
the date of the election, the polling place may not make
services available under this section to any eligible applicant
who does not cast a ballot.
So, basically, you are saying if they register they have to
vote. Or, in other words, they are not even going to be
registered if they don't agree to vote.
Mr. Ellison. Well, Mr. Representative, I read it a little
bit differently. I don't think this is the most critical part
of the bill.
Mr. Ehlers. I agree. And I don't think--that is not a major
matter. I am just pointing out it is in your bill.
Mr. Ellison. Yeah, it is in my bill and I am familiar with
that section. The way I read that is if you want to vote in
that election that day, then registering that day makes you
eligible to vote in that election for that day. But I think
that if you wanted to register to vote the next day, the day
after election, I don't see any rules that would say you
couldn't fill out a voter application to register to vote.
Mr. Ehlers. I just wanted to try to clarify that issue.
I was born in Minnesota, southwestern Minnesota.
Mr. Ellison. Congratulations.
Mr. Ehlers. Thank you. It has made me what I am today, a
good solid Republican. Seriously. I grew up in Edgerton, a very
fine town. Everyone knew everyone, very little crime. There was
some crime. But I think same day registration would work there
easily because everyone knew everyone, and maybe that is what
you are referring to. But I refuse to believe that there are no
criminals in Minnesota, and that no one might try to take
advantage of this.
Even if there weren't, we are talking about Federal
legislation. And the history of our country, frankly, a
shameful history, is that in certain areas of the country there
is considerable dishonesty in elections. And in this particular
issue, and I totally agree with Mr. King on this, this creates
incredible opportunities for mischief and, frankly, for
breaking the law.
We are all familiar with Tammany Hall, the Pendergrass
machine, the Daley machine. You can go on and on. They
certainly played every trick in the book. And same day
registration has the potential for doing that, unless the
ballot that the person casts is a provisional ballot so in case
they are breaking the law by what they have done, then you can
discard their ballot and no harm is done.
If you allow the ballot to be tossed in the hopper and
counted, you have done permanent damage. You have cheated the
public of a fair election. And I think the key factor of same
day registration is to make certain that it is a provisional
ballot.
Related to this of course is the requirement that we passed
with HAVA that every State has to establish a statewide voter
database to keep track of registrations and so forth. That is
essential to determine if someone, regardless of whether they
are registering the same day or not, are voting twice.
And so, I just have experienced and seen enough fraud
around the country that I am very worried about adding
something that would make fraud easier for those who are
dishonest. It also, what you are proposing, makes voting easier
for those who are honest. And I don't object to that, really,
but you have to protect against fraud if you are going to
provide extra opportunities for fraud, which is what your bill
does. And I think we have to be very, very careful about that.
If we are going to try to make this a national issue
instead of an issue State by State, where all the good people
of Minnesota who by and large obey the law and wouldn't do
anything wrong, I am very worried about passing a law that is
going to apply everywhere in the country, where there is plenty
of chance for mischief and downright dishonesty.
I would appreciate your comments.
Mr. Ellison. May I comment very briefly, Madam Chair? Let
me say this very quickly. The people who live in a precinct,
even if you live in an urban area, it is like a small town. For
example, there might be just one building that people vote at
and that is like the whole precinct. So even though it is an
urban area, it is a closely knit unit that people are voting
in. So there really is quite a substantial amount of that small
town atmosphere. People know each other.
So I think we have probably got a vote. But I do appreciate
your question.
Mr. Ehlers. Well, I would hate to depend on that, simply
because I live in a relatively small urban neighborhood, and I
have served in local government, I know a lot of people. But
when I go to the precinct to vote, I see a lot of people there
I don't know. And when I talk to the election clerks, they see
a lot of people they don't know. And so I think caution is best
in a situation like this.
As Mr. King said, we really have to guarantee the purity of
the ballot to reassure the voters that the result is accurate
and that it follows the intention.
Ms. Lofgren. The gentleman's time has expired. And we have
been called to vote. So I will recess the hearing now, thanking
both of our colleagues for their testimony. We will return as
soon as votes are done and commence with the other two panels.
[Recess.]
Ms. Lofgren. I am sure that the Ranking Member is on the
way back. Under the rules we can proceed when we have two
members. But I am going to begin because we have more votes in
an hour, and we can start introducing now, while Kevin is on
his way.
I would like all the members of the next panel to come
forward. And I am searching for my introduction here. We have
three witnesses before us. We have the Honorable Mark Ritchie,
who is currently serving as Minnesota Secretary of State, where
he is the State's chief elections officer. Mr. Ritchie has made
many contributions to improving civic participation in the
electoral process, including his leadership of National Voice,
a national coalition of over 2,000 community-based
organizations working together to increase voter participation.
Mr. Ritchie was able to lead this organization in registering
over 5 million new voters nationwide, one of the largest
nonpartisan voter mobilizations in our Nation's history.
Next we have Mr. Tim Moore. Mr. Moore currently serves as a
representative in the North Carolina House of Representatives.
He was first elected in 2002, and now serves as chairman of the
Committee on Elections Law and Campaign Finance Reform
Committee. Mr. Moore is also an attorney with the law firm of
Flowers, Martin, Moore & Ditz.
And finally, we have Mr. Neil Albrecht, who is the
Assistant Director, City of Milwaukee Elections Commission. He
has been the Deputy Director for the city of Milwaukee's
Election Commission since July of 2005. His focus in this
position has been on the full implementation of system
improvements identified by the Milwaukee Task Force on
Elections. He is a lifelong resident of the city of Milwaukee
and has a professional background in finance and nonprofit
management.
And we do thank all of you for coming today to share your
insights with us.
STATEMENTS OF HON. MARK RITCHIE, SECRETARY OF STATE, MINNESOTA;
HON. TIM MOORE, NORTH CAROLINA STATE REPRESENTATIVE; AND NEIL
ALBRECHT, ASSISTANT DIRECTOR, CITY OF MILWAUKEE ELECTION
COMMISSION
Ms. Lofgren. And if we could, we will begin with Secretary
of State Mr. Ritchie. Welcome.
Let me just interrupt and note that your full written
comments will be made part of the official record of this
hearing. We do ask that your oral testimony consume about 5
minutes. And that little machine there has lights. And when the
yellow light goes on it means that you have consumed 4 minutes.
It is always a surprise. And when the red light goes on it
means you have actually spoken for 5 minutes. We would ask you
to try and summarize at that point so that we can hear
everybody. Mr. Ritchie. There is a little button. There we go.
STATEMENT OF HON. MARK RITCHIE
Mr. Ritchie. Chairwoman Lofgren, Representative Davis,
thank you for this opportunity to present testimony on election
day registration. When I began the process of running for the
office of Secretary of State, one of the first persons I sat
down with and asked his support was the Secretary of State of
Minnesota, who was serving in that position when I came of age
when they lowered the voting age, Arlen Erdahl. Arlen Erdahl
had been a Congressman, a Republican Congressman from
Minnesota, had come back to Minnesota, was Secretary of State
when Election Day Registration was passed and implemented in
our State. He gave me an amazing history of the process,
particularly pointing out the problems that were being solved
at that time by making that change. But he also urged me to go
meet with and talk to all of our 87 county election officials
and to get their point of view, because, as he said, county
election officials, city election officials, that is where the
rubber hits the road. If you want to know about Election Day
Registration, its benefits, and how it functions, go talk to
those officials.
So I did. And in meeting around the State--and I have met
with all 87--I heard four consistent themes about election day
registration in Minnesota. So this is based on 34 years of
experience. And some of these election officials have been in
their jobs for most of that time.
Number one, it clearly has increased turnout, but it has
been especially important for increasing turnout for young
people. Minnesota was on a decline from 1956 to the early
1970s, and with the introduction of the 18-year-old voting in
this country, another hit on participation. But we passed
Election Day Registration at roughly the same time. And so we
have been able to build up over the past few years so that we
are top in the Nation, but especially we are proud of the fact
that it brings in young people. In fact, Election Day
Registration has been shown to have about twice the positive
impact on bringing young people into the process as older
adults.
The second thing that election officials pointed out is
that this has largely eliminated the disputes, the problems,
the mistakes. It just made election administration much easier
and much cleaner, much less expensive, and allows election
officials to do their job better.
Third, it is a much more accurate and secure system. You
are registering somebody in person. They are standing in front
of you instead of a form received in the mail. If there is some
error in the registration form, hard to read, poor writing,
some missing information, you can correct it right there on the
spot. And we have a whole series of safeguards, including
requiring our proofs, our oaths. We have provisions for
challenging. And of course we have criminal prosecution for
anyone who is lying under oath. So we feel like it has been a
much better and more accurate and secure system.
And finally, since most of the same-day registrations are
simple address changes, we also think that there are some ways
to, you know, make this great system even better in the future.
And so we are looking forward on that.
I took their comments and their suggestions to heart in my
campaign and now that I am in this position, and Minnesota is
going to be an even better and stronger participant in the
Election Day Registration process. But what I have noticed is
that many other states are very interested because they have
the problems of provisional ballots and other problems. They
are asking us for our advice, for our help.
Many other States have come to visit Minnesota to look at
our system. I always have those visitors meet with local
election officials because those are the folks who really know
how the system works. They have seen every problem, every
unusual situation, and they have tackled those very well. And
so Minnesota at this point is a state where this system works
for us and it works well.
In the closing of Congressman Ellison's comments this
morning he quoted from my colleagues, the Secretaries of State
from Idaho and from Maine, about how this is not a partisan
issue, this is an issue that is in favor of voters. And I want
to underline that. Our 87 county election officials are very,
very fiercely independent, and they range from all spectrums of
the political climate in Minnesota, and they all feel strongly
that this is a great system. Our 34 years of history gives us
great confidence. And we are very happy to see this idea being
adopted in other States, and potentially at the national level.
Madam Chairwoman, thank you again.
Ms. Lofgren. Thank you very much, Mr. Ritchie.
[The statement of Mr. Ritchie follows:]
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Ms. Lofgren. I see that our colleague Mr. Ellison has
joined us. And by unanimous consent we will invite him to
participate with us. And we are now joined by our Ranking
Member, Mr. McCarthy, time for Mr. Moore's testimony. Proceed,
please.
STATEMENT OF HON. TIM MOORE
Mr. Moore. Thank you, Madam Chair, Ranking Member McCarthy,
members of the committee. It is really an honor to be here
today speaking before this committee both as a citizen and as a
member of the North Carolina State House of Representatives. I
am here today because our General Assembly recently this past
session enacted same-day voter registration in North Carolina
through the enactment of House Bill 91. I opposed that measure
in the General Assembly because I felt like there were real
concerns with a number of issues to protect against voter
fraud, and that we failed to fully address that.
Support for same-day voter registration is, of course,
based upon the noble intention of increasing voter turnout. But
I don't think any member of this committee or this Congress
would also doubt that we also have to be equally vigilant not
only about voter turnout, but accuracy and legitimacy in the
elections to prevent against fraud.
This process first started actually--or this past week, the
elections which were held for a lot of municipal elections is
the first time same-day voter registration has occurred in
North Carolina. The data I have seen thus far indicates that it
has not had an impact on the voter turnout. So I guess that
remains to be seen, and the canvass has yet to occur, and that
will be fleshed out in the coming weeks. But at least
tentatively at this point, the data does not show there was an
increase in turnout, at least in North Carolina, in the
municipal elections.
But same-day voter registration does have the very real
potential to decrease confidence in the elections, particularly
if there are increases in the amount of fraud. And I will point
out two examples to kind of show it.
I suppose if the only goal was to increase voter turnout,
we could take a cardboard box, cut a hole in it, and put it on
the street corner and leave it there for a couple days and come
back and pick it up. You would probably have an increase in
voting in that precinct. But it is obvious what the concerns
for fraud would be. Someone could stuff the ballot box or
anything. There are other ludicrous examples where you could
require fingerprint ID or something like that. The point is
there has to be a balance struck between voter security and
between ease of voting.
It is my concern that same-day registration at the State
level, and particularly with the Federal bill, tips that
balance dangerously away from ensuring accuracy and fairness of
the voting.
The bill that is before Congress is similar in some ways,
but different in one. One thing I would stress, one difference
I would stress, is the fact that in North Carolina the ballots
are provisional ballots. They are retrievable ballots. So if
there is a challenge to fraud it can be retrieved. But the
issue of voter I.D. really dovetails with this, because if we
are going to increase the opportunity for voter registration,
and, at the same time, decrease the period of time that the
Board of Elections would have to ensure the accuracy and verify
the eligibility of the voter, we need to find ways to enhance
the security component.
I have supported, or I ran an amendment in North Carolina
to our bill to add photo I.D. That bill did fail along partisan
lines, unfortunately. But I would encourage Congress, if you
pass this, that you implement at least a photo I.D. component.
Because the types of I.D. that HAVA sets forth right now are
things that are very easy to fabricate, such as a power bill,
and very difficult to verify.
The allegations as to past fraud, I think in some ways
those may be understated. History is full of examples of where
fraudulent conduct has affected elections. And any time we are
going to expand the opportunity for that to occur, we need to
put in place those protections.
Additionally, North Carolina, like many other States across
the Nation, has seen a huge growth in population, some of those
being illegal foreign nationals. In fact, some estimates in our
State estimate that as many as a half million members of our
new population are folks who are here illegally. By getting rid
of the period of time that the Board of Elections has to verify
the eligibility, we increase the opportunity that we could have
those who aren't even citizens voting. So again, I think the
photo I.D. component would be very important.
We did at the State level find some examples of voter fraud
that were discussed on the floor. One where a person went to
vote, or went to vote on election day, and then discovered
someone had voted in their place on the early day. They were
disenfranchised. There were several examples of where dogs had
registered to vote. I think one dog even got some votes. I
don't think they voted. But it does appear that there is an
issue and that there has to be a way to strike the balance.
And in sum, I will say this. I do think that this also is a
State issue as to election administration. I am all for finding
ways to increase voter turnout and participation. One thing
that I would recommend Congress look at doing is finding ways
to ensure that the ballots of our military personnel who are
overseas are counted. I am aware there are some problems with
some logistical issues getting those back and forth. I would
hope Congress would look at ways to address that. But I do
appreciate your time, Madam Chair, and members of the
committee.
Ms. Lofgren. Thank you very much, Mr. Moore.
[The statement of Mr. Moore follows:]
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Ms. Lofgren. And our last witness on this panel is Mr.
Albrecht. And we would be pleased to hear from you.
STATEMENT OF NEIL ALBRECHT
Mr. Albrecht. Good morning, Madam Chairwoman, and members
of the committee.
Ms. Lofgren. Can you pull the microphone a little bit
closer? Maybe it is not on. There is a button you have to--
there you go. Thank you.
Mr. Albrecht. Good morning, Madam Chairwoman, and members
of the committee. Thank you for this opportunity to represent
the city of Milwaukee in this discussion. My name is Neil
Albrecht, and I am the Deputy Director of the city of Milwaukee
Election Commission. My purpose in testifying this morning is
to speak to Milwaukee's positive and productive experience
administering election day registration, and also to address
the allegation that Milwaukee is a voter fraud city, and that
election day registration has contributed to a voter fraud
problem in the city of Milwaukee.
Nationally, use of the words ``voter fraud'' have been
applied randomly, and are often unsubstantiated. In recent
elections in Hawaii, there were allegations of widespread voter
fraud when six polling sites did not open on time. In Indiana,
problems with new touch-screen voting machines were construed
as election fraud. In Utah, where poll workers forgot a step in
setting up a voting machine, there were allegations of voter
fraud.
It has been our experience in Wisconsin that
misrepresentation of these two words is often intentional, and
has been successful at intimidating and disillusioning voters.
Voter turnout during the 2004 Presidential election was
unprecedented. Beyond any dispute, the city's elections systems
were overwhelmed by the sheer volume of preelection
registration and absentee voting activity. Due to Wisconsin's
status as a battleground State, the problems that were
experienced attracted significant national attention, as did
allegations of widespread voter fraud. After both a State and
Federal investigation into the election, there were two voter
fraud prosecutions, and neither related to election day
registration.
While the act of voter fraud in any election is not
acceptable, two prosecutions hardly warranted the labeling of
Milwaukee as a voter fraud city. Fortunately, allegations of
voter fraud did not overshadow Milwaukee's recordbreaking
turnout in the 2004 Presidential election; 277,535 ballots were
cast, representing 70 percent of the city's 307,000 registered
voters. Nationwide, Wisconsin ranked second in voter turnout,
just below our neighboring State of Minnesota.
There were many factors that contributed to Milwaukee's
success in motivating voter turnout, including the city's
longstanding history of engagement in political processes.
Unquestionably, the most significant contributing factor was
the availability of election day registration. Of the nearly
278,000 voters, over 80,000, or 29 percent, registered to vote
on election day.
I think it is time to get bifocals. In Milwaukee, voting is
a citywide event that crosses into every neighborhood,
community, gender, age, and economic class. Despite the
overzealous and inaccurate allegations of Milwaukee being a
voter fraud city, voting as a right is woven deeply and
throughout the very cultural diverse fabric of Milwaukee.
Election day registration has consistently encouraged voter
participation.
In Wisconsin, in the most recent gubernatorial election
nearly 35,000 of the 172,000 voters who voted on election day
were election day registration. That number represents one in
five voters.
Offering election day registration does require an
additional administrative investment on the part of any
municipality. Voting rooms are set up to allow separate areas
for election day registration so as to avoid long lines and
delaying the issuance of ballots to registered voters. In
Milwaukee, we provide trained registrars at every polling site.
At our 208 sites, this represents an investment of 320
additional election workers, a minimal investment considering
the outcome: civic engagement and voter participation.
The value of election day registration exceeds increased
voter participation. It is also evidenced by the demographics
of the election day registrants themselves: young people,
apartment occupants, people who are more transient, and persons
from the lower socioeconomic classes.
During the 2006 gubernatorial election I received a call
from the chief inspector at Riverside High School, a voting
site close to the UW-Milwaukee campus, notifying us that they
were running out of election day registration applications. On
delivering additional applications to the school, I found a
registration line that spanned approximately four blocks long.
Nearly every person in that line was a college student. Voters
from the neighborhood and school faculty distributed bottled
water and power bars to the people standing in line. It is
difficult for me to imagine turning away young people from the
polls because they did not register 15 or even 30 days prior to
the election.
In Wisconsin, State law clearly identifies that election
day registrants must be prepared to provide a proof of
residence that includes their name and registration address.
The legislature has approved a comprehensive array of
acceptable documents similar to HAVA that can include student
identification cards, leases, property tax bill, government-
issued identification, and utility bills. An elector may also
produce a corroborating witness who will certify their identity
and address.
Ms. Lofgren. Mr. Albrecht, could you try and summarize? We
are a little bit over. And we do have a separate panel.
Mr. Albrecht. I am sorry.
Ms. Lofgren. That is all right. We are giving you extra
time because you didn't have your bifocals.
Mr. Albrecht. I know.
Ms. Lofgren. But we do need to, if you could summarize and
conclude, that would be great.
Mr. Albrecht. All right. Elections should be about
inspiring and engaging people, particularly young people or
people that have been disenfranchised by the political process.
In Wisconsin, we do not believe in setting up barriers that
prevent students from experiencing the power of casting their
first ballot or further disenfranchise the more transient
residents of the city or the poor or the elderly with
cumbersome I.D. requirements.
Ms. Lofgren. Thank you very much.
[The statement of Mr. Albrecht follows:]
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Ms. Lofgren. And thanks to all of our witnesses.
Now is the time when we can proceed to questioning for 5
minutes each. And I will turn first to Susan Davis, our
colleague on the committee from California.
Mrs. Davis of California. Thank you, Madam Chair. And thank
you to all of you for being here. I was actually going to ask a
question that in some ways, Mr. Albrecht, I think you answered
partly, but I think that there are in some ways--I mean there
are so many things that need to be done in communities to
outreach for registration.
I am guessing, and perhaps you can clarify for me, that in
some ways same-day registration is sort of a last attempt
effort in many ways. But that would suggest that somehow we are
not doing everything that we should do beforehand. But I also
am very aware of your testimony that largely we are talking
about college students, perhaps, and others who have moved who
are more transient.
Mr. Ritchie, is that your assessment as well? I mean is
there something that we should be doing more prior to--or in
those areas where we have same-day registration, now is it
considered not a last resort necessarily and it is just the way
it is?
Mr. Ritchie. Madam Chair, Representative Davis, Minnesota,
I think, is similar to Wisconsin in that on large election
years, presidential years, it can be 25 percent of our voters.
So this is for us, it is a full spectrum; it is old, young, it
is all kinds of people. It does represent approximately 80
percent of those people who are changing their address, so they
are prior registered, they have been in the system, they have
moved. And the other 20 percent have just come of age, just
moved to the state, or were just recently motivated because a
candidate or an issue caught their attention. So I think it is
a wide range. But what we see is that for young voters, it is
often of greater benefit to young voters than to others.
But I think your question gets to an issue that we are
addressing in Minnesota right now, which is how do we get more
people into the system earlier? And there are so many benefits
to that. As an elected official, of course, we are buying, you
know, voter lists, that kind of thing for door knocking, for
registration purposes, for direct mail. And the more people
that are registered before, the better are the lists. So that
is one advantage.
The second is that Secretaries of State offices and other
organizations like League of Women Voters are distributing
information about where to vote, about candidate information,
about what is needed. And so the better, the more people
registered the better the information is shared.
And then finally, it is certainly true that getting people
to feel they are part of the process somehow is going to have a
positive overall benefit. We don't think of it as necessarily
sort of a last-ditch effort, because so many of our Minnesotans
use this opportunity. But it certainly is true that we want to
do everything in our power to get more people registered
before. And we have some specific proposals to begin using U.S.
Postal Service data on change of address, being more directly
tied into our other State systems that are requiring
citizenship identification. And I would be happy to provide you
with further information about that after I go back to my
office.
Mrs. Davis of California. Yeah. In terms of your situation,
are you voting with machines or are you--what is the method of
voting?
Mr. Ritchie. Chairwoman Lofgren, Representative Davis,
Minnesota only votes on paper, paper ballots. They are counted
by optical scan equipment. And we have HAVA-compatible
equipment that assists voters in marking their paper ballots,
and then those are then used in the optical scan system. And
frankly, it is the fact that we vote on paper that we have
same-day registration, so everyone is welcome, and we do post-
election random audits. Those are the three pillars of our
voter confidence.
Mrs. Davis of California. Can you help me understand if in
fact you have a situation where somebody may be in the area but
it is not necessarily their precinct, or I am thinking even in
terms of, you know, if they are voting on some county
propositions versus city propositions, how do you deal with
that, then, if in fact they are to show up in the wrong area?
Are they sent to another area or are they----
Mr. Ritchie. Chairwoman Lofgren, Representative Davis, it
is a felony to vote outside of your precinct in the State of
Minnesota, so we do not permit or allow this. We instruct
people where they need to go. But we are looking closely at the
experience in Colorado, which has been really in the forefront
of looking at some county-wide voter registration systems where
you could go to near your workplace or your school.
So right now in Minnesota we don't have the option of
voting outside of our precinct. But we are looking how other
States are doing this, and we think there is something there.
Mrs. Davis of California. Mr. Albrecht or Mr. Moore, are
you also voting on paper in Wisconsin?
Mr. Albrecht. Identical systems. Paper ballots. And then we
also have the HAVA-mandated equipment for a person with a
disability to mark their ballot.
Ms. Lofgren. The gentlelady's time has expired. We will
grant an additional 30 seconds for Mr. Moore to answer and then
we will go to Mr. McCarthy.
Mr. Moore. In North Carolina we have both forms. And one
additional concern in our State on the same-day voter
registration, our early voting folks actually are voting in
places other than their poll site. A county will set up one,
maybe a couple facilities throughout that county. And one of
the concerns on the identification component is that they may
be in a part of the county which they do not reside, and so no
one there would know who they are. And that was one thing we
actually raised at the State level.
Ms. Lofgren. We now recognize the Ranking Member of the
committee, the gentleman from California, Mr. McCarthy.
Mr. McCarthy. Thank you, Madam Chair. Just a quick
housekeeping--I have a couple reports that are relevant today,
and just ask unanimous consent they get entered in the record.
Ms. Lofgren. Without objection.
Mr. McCarthy. Thank you very much.
[The information follows:]
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Mr. McCarthy. First to Mr. Moore. You talked about, and I
agree with your concerns on same-day registration, same-day
voting. But what you did in North Carolina is actually
different than what is being proposed in this House bill. You
allowed for provisional ballots if you are a same-day
registered and same-day voting. Could you elaborate why?
Mr. Moore. Certainly. The ballots would be retrievable in
that case. So if through the process of the few days between
when the ballots are cast and between the canvass, if it was
discovered that the ballot was fraudulent or the person was
ineligible to vote, then there would be a means to trace the
ballot to the voter and for the ballot to be retrievable at
that point.
Mr. McCarthy. Okay. Thank you very much.
To Mr. Ritchie, thank you for coming. And I read your
testimony. Sorry I was a little late. But in part of your
testimony you said same-day registration has actually increased
turnout.
Now, I have got this here where they have taken an
analysis, and you can tell me whether I am wrong or right here,
it takes from 1952 to 1972 because in 1973 is when you went to
same-day registration, correct? The average then was 77 percent
turnout. And then from 1973 now to 2004, the average is 71
percent turnout. So that is a decrease, but I don't know if
decrease across the country people turning out. But you still
feel, even though the numbers don't show it, that it does
increase turnout?
Mr. Ritchie. Chairwoman Lofgren, Ranking Member McCarthy,
yes, that is right. In 1956 we started at 83 percent, we fell
to 70 percent in 1972, and we extended the franchise to 18-
year-old men and women and we had a further downward pressure
on our turnout. And we are now back up to almost 78 percent as
of our last presidential election.
I am very sorry you weren't here for my testimony, but I
was referring to my meetings with the county election
officials, who are really the experts and who does elections.
All of them are quite clear.
Mr. McCarthy. Could I ask you one thing about your answer?
And I appreciate that. You talked about you want to make sure
people register beforehand. That is your initial goal. Because
people are more well informed. And I was just wondering, people
use voter lists for a lot of different things, but candidates
use them, too, for talking to voters. Do you feel voters that
go in and do the same-day registration, that they are less
informed or more informed because people are mailing their
positions and where they stand based upon election records?
Mr. Ritchie. Chairwoman Lofgren, Ranking Member McCarthy,
80 percent of our same-day registrations are people who have
been registered from 1 year to 89 years. And so 80 percent of
those people have the same level of prior registration as
anyone else. So we believe that the people who are registering
to vote on election day are more or less equally informed.
However, young people are generally often less informed
because they are new to the process. And so it is very
important to get more young people directly included. We are
working hard on that. And so there are things that we want to
do, but generally speaking, most of the people using this
opportunity are people who have been registered for their
entire lives, however long they have been adults. And they are
quite well informed, especially in Minnesota. But of course, we
are all above average.
Mr. McCarthy. Well, that is good to know. I come from
California, so maybe I am a little below. Have you found any
fraud through this? And have you found through those younger
people--I know people, they tell stories; people that are here
elected tell that they were a little wilder when they were in
their college days and they did things, pushing the envelope.
Have you found since that is a larger portion that goes and
votes on same-day registration, that they are voting absentee
back home and at the same time going in? Have you had any
reports about that?
Mr. Ritchie. Chairwoman Lofgren, Ranking Member McCarthy,
yes, thank you for this question. Almost every major election
cycle, we find one person who has made the very serious mistake
of voting in two places. And it makes me very sad to say it is
almost always a young person. And it is often college students
who don't understand that this will make it very hard for them
to grow up and be a lawyer, which is what happened in one case,
or some other. And there are things that we do as young and
older people that we know that are wrong. And drunk driving is
one. And sometimes there are no consequence and sometimes there
are terrible consequences. And so I make it part of my job to
try to communicate to young people, not to scare them away from
voting, but saying look, this is a very serious mistake. And we
always find them because we have a statewide system, and we run
all the----
Mr. McCarthy. Can I ask just one quick follow-up? I don't
mean to cut you off. I only have a couple seconds. Was that
vote counted? Because they don't vote provisional, correct?
Mr. Ritchie. That is correct. That vote was counted. And as
I say, in my state, I personally, my preferred system would be
where no person could drive until they prove to me or someone
that they weren't drunk or impaired. But that is not our
system. And in voting it is not our system.
Mr. McCarthy. Knowing what you know now, how every time you
find someone who has broken the law there, would you change
your current law and make a same-day registration vote
provisionally so those votes would not be counted?
Mr. Ritchie. Absolutely not. Madam Chairwoman,
Representative McCarthy, your proposal which you asked earlier
would disenfranchise 213,000 Minnesotans in a presidential
election year.
Mr. McCarthy. But they still vote. I don't understand how
provisional--if I am allowed.
Ms. Lofgren. The gentleman is granted an additional 30
seconds so the witness can answer.
Mr. Ritchie. The national average of counted provisional
ballots is 63 percent. Let's say Minnesotans, who are above
average, it is 70 or 80 percent. That would leave 100,000
Minnesotans disenfranchised by your idea. This would not be
something that I would support.
Mr. McCarthy. I wish I had more time.
Ms. Lofgren. The gentleman's time has expired.
I will begin. We got a letter from Deborah Ross, the
majority whip of the North Carolina General Assembly. From her
stationery I see she chairs the Ethics Committee and Judiciary
I Committee, and is vice chair of the Election Law Committee.
And she disagrees with you, Mr. Moore. And I just wanted to put
in--I ask unanimous consent to put the letter in the record.
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Ms. Lofgren. But I would note that she reports to us that
the Director of North Carolina State Board of Election
encouraged her as the bill sponsor to use one-stop voting sites
as ideal locations: And in a letter that he wrote to her she
quotes, a registration application filled out, and sworn to, in
the presence of an election official enhances the accuracy of
the information obtained and transferred into our database. In-
person registration also enhances a proper review of the
identification documentation provided by the applicant. And the
new law requires the Board of Elections to verify the address
of the applicant through the DMV and other databases.
She points out that there are many safeguards against
fraud. And that in addition to those, that the applicants sign
under penalty of perjury that he or she is a U.S. citizen. And
failing to adhere to the rules results in two felonies. And
notes that the bill--she says HB 91 passed with bipartisan
support, particularly in the North Carolina Senate. The U.S.
Department of Justice pre-cleared the new law within a month of
its passage, and that the law was used in October and November
2007, municipal elections without incident. So I make that part
of the record.
And I just, you know, I did a search with the Internet. You
can find a lot of things, but you are never sure if it is
entirely accurate. But the only instance I could find of a
prosecution of voter fraud in North Carolina was a gentleman
who worked for Congressman Patrick McHenry who voted twice and
was indicted. And apparently he is a young man who made a
mistake. He made some kind of plea deal, which I am happy for
him in his life. But I couldn't find any other prosecution. Are
you aware of any, Mr. Moore?
Mr. Moore. A couple things, if I may. I used to actually
co-chair the Elections Law Committee with Representative Ross.
We had a spirited debate on this issue on the floor of the
House. The one thing we heard was that there were folks who
said they went to vote, they weren't able to, and there were
allegations of fraud. One of the difficulties about voter
fraud, Madam Chair, is it is very difficult to prove. At least
that has been the experience not only in our State, but what I
have researched and found in other States. The example I told
you where the dog----
Ms. Lofgren. So were there prosecutions? Do you know any
other than this Congressman McHenry's aide?
Mr. Moore. I am not aware of any that I actually can cite
to you this morning, but I am aware there were other
investigations.
Ms. Lofgren. Okay. I think you answered this, Mr. Albrecht.
But Mr. McCarthy mentioned in his opening statement, or I guess
it was to the first panel, this task force that looked at
Milwaukee. And how many--there were prosecutions occurred?
Mr. Albrecht. There were two prosecutions----
Ms. Lofgren. Two prosecutions.
Mr. Albrecht [continuing]. Coming out of the 2004 election.
Neither was related to election day registration. Both were
occurrences of a person who was on probation or parole for a
felony conviction at the time of the election.
Ms. Lofgren. And so they--under State law they weren't
eligible to be a voter?
Mr. Albrecht. Correct.
Ms. Lofgren. Okay. And I am just wondering if any of you
can answer one of the things that I mentioned in my opening
statement is the situation where sometimes provisional ballots
aren't counted. And one of the things that I have thought about
is whether there should be standards and procedures so there is
uniformity on the counting of provisional ballots, because it
is sort of an equal, you know, justice thing. You know, if you
are in county A it gets counted; if you are in county B it
doesn't. And it seems like there ought to be some uniformity
to--you know, whatever the rules are ought to apply to all the
Americans so that they are treated the same.
Do you have thoughts on why ballots aren't being counted
and whether it is the lack of standards or some other reason?
Anyone who knows the answer. Mr. Ritchie you might have a
thought on that.
Mr. Ritchie. Madam Chair, I think national standards would
be very important, but it would also need to be somehow looked
at the overall cause. Provisional ballots are an extremely
expensive and time-consuming and complicated process. And so
once national standards are under discussion, finding out what
are the cost burdens----
Ms. Lofgren. Right.
Mr. Ritchie [continuing]. On state and local, particularly
local governments. And so that that could be somehow addressed.
Ms. Lofgren. That would be an important component.
Mr. Albrecht, do you have anything to add on that? I will
grant myself an additional minute so you can answer.
Mr. Albrecht. I will just agree they can present a pretty
significant administrative burden, and that there is
substantial cost involved with that as well.
Ms. Lofgren. Of course under HAVA, you have to have it
anyhow. So I think this is something we would certainly welcome
additional advice on from not just you two, but other State
election officials.
Well, my time has expired, so I will now turn to Mr. Ehlers
for his 5 minutes.
Mr. Ehlers. Thank you very much. And Mr. Ritchie, I was
born in Minnesota, so I appreciate your comments that
Minnesotans are above average. That has been my experience,
too. It has also been my experience that the crooks in
Minnesota are above average and very clever. And I think you
should be concerned about that.
In between the first part of this hearing and the second
part we had to go to the floor to vote, and one of my
congressional colleagues from Minnesota told me tale after tale
of dishonest practices, many of them involving same-day
registration. So it is not apparently as copacetic as we have
been led to believe here.
I don't understand the reluctance to have provisional
ballots. If you are so worried about the sanctity of the
ballot, I think it is essential that you have provisional
ballots. And you argue the expense. Good grief, it is far more
expensive to run an election than to deal with just a minor
part of it, which is the provisional ballots. It makes me very
suspicious when people say we want same-day registration, but
we don't want provisional ballots. That makes no sense. And
that leads me to believe people are trying to play games with
this. And I just cannot abide that.
Mr. Albrecht, I wanted to turn to you for a moment. After
your election in 2005 or 2004, I understand the Milwaukee
Police Department, district attorney's office, the FBI, U.S.
Attorney, formed a special task force. They found that there
were a number of cases in which the number of people who voted
exceeded--the count exceeded the number of people who actually
voted. I am sorry, the ballots cast exceeded the number of
votes. And there were a number of other improprieties. What can
you tell us about that?
Mr. Albrecht. The number that you are referencing, which
was sort of an immediate post-election disparity between the
number of people who had been assigned voter numbers on
election day and ballots cast in the machine, was actually
recently resolved. There was a number from the formula that law
enforcement was missing. And that is the people who had
registered to vote at City Hall in the 14 days prior to the
election. So while the final report from the district
attorney's office has yet to come up or be released, the
initial significant margin of error that was widely promoted in
the media in fact proved to be false.
Mr. Ehlers. Well, we will be following that with great
interest.
And I just want to quickly drop back to the issue of costs
of provisional ballots. We spent millions, in fact I suspect it
is above a billion, dealing with voting improprieties in
Florida in 2000. I can't believe that the cost of a provisional
ballot comes anywhere near the expense involved in case there
is really a legal battle involved about the results of an
election. I just think that is a totally mistaken assumption
and statement, and I cannot accept that. That is separate from
the issue of same-day registration, but I really think it is
also crucial to have provisional ballots for those exercising
same-day registration.
I am not a babe in the woods. I wasn't born yesterday. I am
familiar--I have been working in elections for over 30 years. I
am familiar with many, many cases of fraud taking place. And
sometimes there are victims, as the one, the gentleman you
mentioned, Mr. Ritchie, who was convicted. It may have been
innocent. But someone told that person to do that. And I have,
in contested cases that we have had to deal with in this panel,
I have found the same thing. There are outside forces who are
persuading people to do things that are illegal.
And we have a case of a group that was trying to persuade
illegal aliens that it was perfectly fine for them to vote
because they wanted them to vote. But of course they could be
deported immediately for doing that.
So it is the organized fraud I worry about, not the average
person who comes in and makes a mistake. But there are people
out there who try to influence elections fraudulently. And we
should be aware of that and we should guard against that.
I will yield any remaining time I may have to Mr. McCarthy
if he wishes to follow up on anything.
Ms. Lofgren. The gentleman yields 10 seconds.
Mr. McCarthy. The only comment I would make is that your
statement about the provisionals, you let a vote go that is an
illegal vote, knowing it is an illegal vote. Provisionals, the
majority aren't counted because they are not determining the
outcome. JFK was elected by one vote per precinct. President
George Bush, 500 votes in Florida. We have congressional
Members here that are here by 83 votes.
I think the accuracy and the trust of elections is of
utmost importance. I would say you have to have provisional.
Why you go beyond, and knowing that you are going to have and
accept illegal votes in, is not a way to move. Thank you.
Ms. Lofgren. The gentleman's time has expired.
The gentleman, Mr. Davis, is recognized for 5 minutes.
Mr. Davis of Alabama. Thank you, Madam Chairwoman. Let me,
I guess, make one observation at the outset that I don't think
anyone on either side of the aisle disputes that we have
election fraud that happens.
There is a particular gentleman in Alabama who ran for
Congress in a county that had 13,000 people, and the problem is
he got 16,000 votes in that county. Happened to be my
predecessor. So I know the story fairly well. What is
interesting to me is we spend a lot of our energy and a lot of
our time focusing on just that side of the equation.
The other side of the equation is voter suppression. The
other side of the equation is deliberate tactics designed to
suppress the vote, particularly in minority communities. Let me
mention two notable examples. The Ranking Member mentioned one
example that is odious, encouraging people who are not legal
citizens to vote. But there is another example that I know of
from the opposite side. And in one election in California there
was a congressional candidate in the last cycle who apparently
sent out notices to immigrants who were documented, who were
capable of registering to vote, and suggested to them that they
could not vote unless they were born in the United States. That
is not accurate.
And another election in Louisiana, 2002, Senator Landrieu's
reelection to the Senate, there were polling places, it was
alleged and documented, where certain individuals went into
minority voting precincts with bullhorns and announced that
anybody in this line who has an outstanding judgment or an
outstanding warrant can't vote. That is not the law in this
country.
There are other tactics that are hard to describe and hard
to explain, dealing with calling certain households in certain
communities and telling them that the polling places may be
moved on election day, so make sure you know where your polling
place is. Or there could be long lines on election day, if you
don't get to the polling place by a certain time you can't
vote. Or it may not be in your interest to vote because you may
not be able to get back to work on time. All of those things I
would label as voter suppression. And frankly, it is my
understanding that all those tactics violate existing laws that
we have today.
So let me just ask the panel, Mr. Albrecht, Mr. Ritchie,
the two election officers who are on the panel, do you agree
with me that voter suppression as you understand it violates
existing Federal laws? And would it also violate existing State
laws in your jurisdictions?
Mr. Albrecht. I would agree. I think in the State of
Wisconsin, in Milwaukee, for example, the two cases that were
prosecuted of felons who were on probation or parole at the
time of the election became such lightning rods for allegations
of voter fraud and attention to that issue that it has now
really succeeded as a suppression tool for felons who have
completed their probation or parole, not believing that in fact
they are eligible to vote in elections.
Mr. Davis of Alabama. And you would agree with me that
communicating, knowingly communicating false information to
convicted felons about their status and suggesting to them--for
example, in Alabama, now there are circumstances in which
convicted felons can vote. There were allegations from the 2006
election cycle, as I understand it, that there were some
campaigns and some communities saying remember, if you are a
convicted felon you can't vote, irrespective of a new law in
Alabama that changed that.
So you would agree that that kind of technique would be
illegal in your jurisdiction.
Mr. Albrecht. I would agree.
Mr. Davis of Alabama. Mr. Ritchie.
Mr. Ritchie. Madam Chair, Representative Davis, I would
agree this is a problem. And I participated in a number of the
hearings and studies for the reauthorization of the Voting
Rights Act. And the thousands of pages of voter suppression
that were documented in the Midwest region and throughout the
entire country were stunning to me.
And one morning in a recent election in my neighborhood
somebody put flyers underneath every windshield wiper, urging
people to go vote to a place that would seem logical but was
absolutely not the place to vote and had never been the place
to vote.
I feel very fortunate to live in Minnesota, where now
Congressman Ellison passed laws in our state legislature
against deceptive voting practices. And I am very encouraged to
see debate and conversation about that here in Washington. But
it does happen, and it is enough of a problem that the
Congress, I believe unanimously, reauthorized the Voting Rights
Act. So it must be widespread and nationwide.
Mr. Davis of Alabama. Well, two last observations. I wish
it were unanimous. Unfortunately, it was not. There were about
60 Members who voted against it.
But if I could just make two quick observations.
Ms. Lofgren. The gentleman is granted an additional minute.
Mr. Davis of Alabama. Thank you.
The first observation, I serve with the Chairwoman on the
Judiciary Committee, and we have oversight hearings
periodically with the voting rights division chiefs, the people
who are in charge of enforcing voting rights laws. I have asked
the question at several different hearings if the Ashcroft-
Gonzalez Justice Department have brought a single voter
suppression case, and the answer I receive varies from ``I have
no idea'' to ``I don't know of any.'' That is unacceptable.
The final point, Madam Chairwoman, something else that I
wish this committee would take up at some point, is the very
odious practice of anonymous election calls that communicate
slanderous and false information. For example, suggestions that
John McCain had an illegitimate child; that happened in the
State of South Carolina in 2000.
Ms. Lofgren. The gentleman's time has expired.
Mr. Davis of Alabama. False and defamatory.
Ms. Lofgren. Mr. Ellison is participating per our UC
earlier and is recognized for 5 minutes.
Mr. Ellison. Thank you, Madam Chair.
Could the panelists share with us if the States have a
standard and consistent definition of provisional ballot
between them? Do you understand my question? Is there one
standard, uniform definition of what a provisional ballot is?
Mr. Ritchie. Madam Chair, Representative Ellison, to my
knowledge, no.
Mr. Albrecht. I would agree, there seems to be varying
definitions between States.
Mr. Ellison. And, Mr. Moore, would you agree with that?
Mr. Moore. I would. We define it in our North Carolina
statutes, which is what I am used to working with, but how it
compares to other States I am not aware.
Mr. Ellison. And is there any standard requirement among
the States as to when a provisional ballot will be counted and
when it will not be? How is it ultimately determined?
Mr. Moore. Well, in North Carolina it is counted when the
determination is made that the person is an eligible voter; or
actually that the person is not an ineligible voter, I should
say. So most provisional ballots, it is my understanding most
provisional ballots are counted, and they are treated much like
an absentee ballot in North Carolina.
Mr. Ellison. So, for example, in North Carolina if you vote
provisionally, then some election official will determine
whether you are an eligible voter. And if it is confirmed to be
that case after you cast your ballot, it will be put in the
batch with the rest of the ballots. Am I right about that?
Mr. Moore. That is correct. And the eligibility criteria
would be determined in large part to the HAVA guidelines.
Mr. Ellison. Now, are you aware of other States where that
is not the case? It seems to me I am aware of some States where
provisional ballot sort of is really no ballot; it is just
something for you to fill out to feel like you voted, but you
don't really ever have your ballot counted. Are you aware of
any other kind of definitions like that? Perhaps there are some
other panelists on another panel that may speak to that issue.
Mr. Albrecht. No. Our issuance of a provisional ballot is
comparable to what has been described, the two identification
requirements consistent with HAVA. And if the I.D. is produced,
the ballot is counted in the election.
Mr. Ellison. What if the person votes, they are eligible,
but they don't come back to give, you know, for reasons of
their own, they can't come back and give that I.D. or whatever
it is that was lacking?
Mr. Albrecht. Which unfortunately happens often. We had 40
provisional ballots in one of our most recent elections, and
only three of them responded the next day to meet the
identification requirement. The 37 other ballots then were not
counted in the election.
Mr. Ellison. Mr. Ritchie.
Mr. Ritchie. Madam Chair, Representative Ellison, I believe
this is why somewhere over a third of provisional ballots are
never counted. That is the national average. And you are
describing some of the reasons, but there is no standard, there
is no national approach.
Mr. Ellison. Of course it might be--I mean I don't take any
issue at this moment with the North Carolina procedure, but I
mean there could be--you could define provisional ballot as
just, you know, pretty loosely. I mean you could just sort of
fill it out and then maybe it never gets counted. I mean that
is my concern with this whole provisional ballot thing. Well,
one of them is that it could simply result in people not voting
even if they are in all other ways qualified to vote. You have
any response to that?
Mr. Moore. I would. I think that the provisional ballots,
though, in not counting those, the State still has to comply
with HAVA. So you do have that Federal law, the same thing that
applies on voting on election day would apply to the
provisional ballots.
And secondly, I think it is important to mention when we
say we don't count all provisional ballots, well, the reason is
because a lot of those ballots may be invalid, the person was
not eligible to vote for some reason and that is why they are
voting provisional.
So I think when the percentages are thrown around that a
certain percentage of provisional ballots aren't counted and
that folks are being disenfranchised, that that in some way
ignores the reality that the reason they are provisional
ballots is that we don't know. And once they are reviewed, it
is determined that actually some of those ballots were not
valid and that they should not be counted. So that would at
least count for some of that percentage.
Mr. Ellison. Well, Representative Moore, you would agree
that there is a percentage of those ballots that were cast that
the individual is in all other respects eligible to vote, they
just didn't happen to have what they needed at the moment when
they were at the polls. You would agree with that, wouldn't
you?
Mr. Moore. Just as in answer to the other question about
prosecutions, I am unaware of the data on that, but I can tell
you----
Mr. Ellison. I know, but you suppose that hey, maybe some
of the reasons that these folks don't come back is because they
are not eligible to vote. I am just asking you to agree to the
other side of that equation, that there are a lot of those
people who were eligible to vote, they just--because they got
five kids and grocery shopping, two jobs and life on top of
their shoulders, they just can't make it back to the polls. You
would agree with that, too, wouldn't you?
Mr. Moore. I would certainly hope it wouldn't happen.
Mr. Ellison. Come on now. I agreed with you on your side.
You don't want to agree with me on mine?
Mr. Moore. I am sure there are examples.
Ms. Lofgren. The gentleman's time has expired, and all time
to question this panel has expired.
Mr. Ehlers. Madam Chair, may I just have 10 seconds?
Ms. Lofgren. Certainly. Without objection.
Mr. Ehlers. I just want to make clear, and I am sorry that
Mr. Davis has left, but I totally agree with his statements. I
abhor all fraud, no matter which party, which people, whoever
does it, how they do it. I abhor it, I want to stop it. And I
want to make that clear. And I think that is true of everyone
on this panel.
Ms. Lofgren. Thank you very much, Mr. Ehlers.
We want to thank the panelists, the witnesses. And we will
have 5 legislative days, if we have additional questions we
will forward them to you. And we would request if that happens
that you answer them as promptly as you can. And we thank you
very much for sharing your expertise with us.
And we will call the next panel forward at this time.
Ms. Lofgren. As the witnesses are coming forward, I will
begin our introductions.
First I would like to introduce Mr. Miles Rapoport. He is
the president of Demos, a nonpartisan public policy research
and advocacy organization committed to building an America that
achieves its highest democratic ideals. Prior to his service at
Demos, he served for 10 years in the Connecticut legislature.
As a State legislator, he was a leading expert on electoral
reform, chairing the Committee on Elections. In 1994, he was
elected as Secretary of State of Connecticut. And as Secretary
of State, Mr. Rapoport released two reports on the state of
democracy in Connecticut. He was also executive director of
Democracy Works, a nonpartisan group that works on democracy
reform.
Next we have Daniel Tokaji. He is an assistant professor of
law at Ohio State University's Moritz College of Law, and
associate director of election law at Moritz. In addition to
his work with Ohio State University, Mr. Tokaji has written
numerous publications and articles on election issues, as well
as co-authored an EAC study with the Eagleton Institute of
Politics on provisional voting. Prior to arriving at Moritz
College of Law, Mr. Tokaji was a staff attorney with the ACLU
Foundation of Southern California.
Ms. Lofgren. Next we have Jan Leighley, who is a Professor
of Political Science at the University of Arizona. Her current
research focuses on the determinants and consequences of voter
turnout in the United States and effects of various States'
policies regarding election administration and voter
registration. Professor Leighley's work appears in various
journals, such as the American Political Science Review, the
American Journal of Political Science, and the Journal of
Politics in American Politics Research.
And, finally, we have Mary Kiffmeyer. She served as the
Secretary of State of Minnesota, the 20th Minnesota Secretary
of State, from 1999 to 2006. Ms. Kiffmeyer also served as the
President of the National Association of Secretaries of State,
and she is also a former member of the Election Assistance
Commission Standards Boards.
So we welcome all of our witnesses who have tremendous
expertise to share with us today. We appreciate your being
here.
STATEMENTS OF MILES RAPOPORT, PRESIDENT, DEMOS; DANIEL P.
TOKAJI, ASSOCIATE PROFESSOR OF LAW, THE MORITZ COLLEGE OF LAW;
JAN E. LEIGHLEY, PROFESSOR, UNIVERSITY OF ARIZONA; AND MARY
KIFFMEYER, FORMER SECRETARY OF STATE, MINNESOTA
Ms. Lofgren. We will start with Mr. Tokaji.
STATEMENT OF DANIEL P. TOKAJI
Mr. Tokaji. Thank you so much, Madam Chair and members of
the committee. I am very grateful to have been invited today to
testify on this very important subject.
I am going to start with some background on election
reform, including the various values over the past several
years that have informed the debate. I will then turn to a more
detailed discussion of the issues of provisional voting and
election day registration, focusing on the nexus between the
two of them.
As explained below, provisional voting has undoubtedly had
enormous benefits in some respects, but it also should be
acknowledged that it carries with it some significant problems.
Foremost among them are the rejection of the votes of some
eligible voters, the unequal treatment of voters across
counties that was referenced a moment ago and, perhaps most
significantly, the potential for post-election litigation of
the type that we saw after Florida's 2000 election over whether
those ballots should count. For reasons that I will explain, I
think election day registration has the potential to both
increase turnout while minimizing our reliance on provisional
ballots and avoiding some of these problems.
Two of the values that have been at the center, properly
so, of the debates over election reform over the past several
years are access and integrity. By access, the idea that
everyone should be able to vote and everyone's vote should
count. By integrity, the idea that we want to minimize cheating
and fraud.
What I would like to suggest today is that there is a third
value that needs to be added to the mix, and that is finality,
the idea that we need to resolve elections promptly, ideally
with a minimum of judicial involvement.
Now, we have had some significant and I think very helpful
legislation both at the Federal level and at the State level in
recent years. Among the provisions of the Help America Vote Act
was a requirement that all States have provisional voting and
that they issue provisional ballots to at least two categories
of voters: those who show up at the polls and find their names
not at the list and those who fail to present required
identification.
The idea as expressed by the Carter-Ford Commission is that
no American qualified to vote anywhere in his or her State
should be turned away from the polling place in that State.
Now, I think provisional voting has had some significant
advantages, but there are also some downsides, and one of them
is that a lot of the provisional ballots that are cast by
eligible voters wind up not being counted. Nationwide, 63
percent were counted, but some 37 percent were not counted.
Now, I think there are some procedural things that can be done
to improve that number and to see that more provisional ballots
are counted, which I have referenced in my written testimony,
but it is an issue that we have to be concerned with.
Perhaps an even more significant issue is disparities in
how provisional ballots are treated across counties, different
standards and different procedures that are followed, as was
referenced just a moment ago. This is a serious problem and
could raise equal protection concerns of the kind that caught
the Supreme Court's attention in Bush versus Gore.
Third and finally, the more provisional ballots you have,
the greater the potential for protracted, post-election
litigation over the result of the type that we almost had in my
own State of Ohio in 2004, where we had a whopping 159,000 or
so provisional ballots cast. And there is no question that if
the result had been closer we would have seen litigation in our
State over whether to count those provisional ballots,
something comparable to what we saw in Florida 2000 over
whether to count those punch cards.
Let me turn in the short time I have left to the subject of
election day registration. There is no reasonable basis for
disputing that election day registration increases turnout. I
know that Professor Leighley will address that question. What I
want to focus on is that election day registration can also
significantly reduce the number of provisional ballots that
have to be cast, and thus advance the value of finality as well
as access, by reducing the likelihood of this very disruptive
post-election litigation.
So, again, election day registration is something that can
increase access, can advance the goal of finality, and does so
without increasing the risk of fraud.
I know my time is up, so I would call the committee's
attention to a study that I cited in my testimony from
Professor Lorraine Minnite, investigating very carefully the
incidents of fraud in election day registration States and
finding it is not greater than in any other States.
Ms. Lofgren. Thank you very much, Professor.
[The statement of Mr. Tokaji follows:]
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Ms. Lofgren. Professor Leighley.
STATEMENT OF JAN E. LEIGHLEY
Ms. Leighley. Madam Chairwoman Lofgren, Ranking Member
McCarthy, and other members of the subcommittee, thank you very
much for the opportunity to present to the committee an
overview of what scholarly research has demonstrated regarding
the effects of election day registration on voter turnout.
Political scientists have long been interested in State-
level policies and their effects on whether individuals choose
to cast ballots on election day, perhaps the ultimate act of
engagement and equality in a democratic political system. Of
course, we know a relatively small proportion of individuals
choose to exercise this democratic right in the United States
compared to other countries, and seeking to understand whether
policies might be adopted to increase voter turnout is indeed a
critical endeavor, as we seem to have agreed so far today.
Widespread participation in the democratic process is an
important part of maintaining faith in government.
Briefly, my testimony shows that we know quite a bit about
the impact of election day registration. My own research has
shown that its adoption in the 1970s by the three early adopter
States--Maine, Minnesota, and Wisconsin--led to overall
increases in turnout of over 4 percentage points, increases in
the turnout of young people between 8 and 12 percentage points,
and increases in turnout of lower-middle-class people of over 5
percentage points. And this research is consistent with all
existing research which has shown that those States had
substantial increases in turnout from the adoption of election
day registration.
Modern research on the impact of electoral reforms on voter
turnout starts with the seminal work, Who Votes, by Professors
Ray Wolfinger and Steve Rosenstone; and Wolfinger and
Rosenstone showed that requiring people to register well in
advance of election day decreased voter turnout by about 6
percentage points. A substantial body of research produced in
27 years since Who Votes has unambiguously supported its
conclusion that lowering the costs of voting would increase
turnout. The only questions open to debate are what are the
most effective ways of lowering the cost of voting and which
persons would be most affected by any reforms.
The existing literature on the effects of election day
registration points to four key conclusions:
First, election day registration has a positive and
significant effect on voter turnout. Not a single study based
on the experience of the Wave I States suggests that voter
turnout would decrease or remain unchanged. Instead, this
research suggests that voter turnout would increase at a
minimum from between 3 to 6 percentage points.
Second, the magnitude of this effect is larger for the
three States that adopted election day registration earlier
than for those who adopted it later, Idaho, New Hampshire,
Wyoming.
We don't have any firm evidence as to why election day
registration seems to have had less of an impact in these
States. However, they did adopt election day registration as an
alternative means of complying with the National Voter
Registration Act--Motor Voter--which allows those States to
avoid complying with other substantive provisions of that law.
So any analysis of impact of election day registration in these
States is implicitly comparing the adoption of election day
registration to the adoption of the provisions implemented of
the National Voter Registration Act.
Third, the two groups who are most affected by the
availability of election day registration are young individuals
and individuals who have moved recently.
Michael Alvarez at Cal Tech has written several reports
with other co-authors and published by Demos showing that
election day registration would have increased turnout in other
States that were considering it, New York and Iowa, and
estimating that the turnout of younger individuals and of
recent movers would likely increase by approximately 10 to 12
percentage points. These studies show the effects of election
day registration are somewhat larger for middle and lower
income and education individuals than for high income and high
education individuals. My current research confirms these
estimates.
Fourth, existing research suggests the two potential
disadvantages of election day registration, the possibility of
fraudulent registration and voting and increased implementation
costs, are minimal.
As consistent as these research findings are, they are
nonetheless somewhat captive of the empirical reality that we
have only six States--I guess we now have more--with evidence
on that that have adopted election day registration, and these
States adopted election day registration in two different
periods. The common mode of analysis is to estimate the
difference in turnout in election day registration States pre-
and post-EDR adoption and to compare the difference with the
difference observed in non-EDR States. Methodologically, this
raises issues about what the relevant comparison groups should
be.
For example, some non-EDR States might well adopt other
policies meant to increase registration or turnout, and such
actions could minimize observed differences between the two
sets of States. This is precisely what we believe occurred in
comparing the Wave II State adopters with the non-EDR States
and their compliance with NVRA.
My current research with Jonathan Nagler provides some
advantages in research design over these previous approaches.
Our analysis at this point strongly reinforces the four key
points of previous research: an estimated positive impact of
approximately 4 percentage points in Wave I States, the
greatest impact for youngest age group and greater impacts of
election day registration for individuals in the middle and
lower income and educational groups rather than in the highest
groups.
Ms. Lofgren. Thank you very much, Professor; and I just
want to take this opportunity to say what a pleasure it is to
hear Ray Wolfinger being quoted. He was my absolute favorite
professor as an undergraduate at Stanford quite a few years
ago. So thank you very much.
[The statement of Ms. Leighley follows:]
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Ms. Lofgren. Ms. Kiffmeyer.
STATEMENT OF MARY KIFFMEYER
Ms. Kiffmeyer. Madam Chair Lofgren, Representative
McCarthy, members, I am here today to testify in favor of
integrity in the elections system.
It is so often that we take a little piece of an election
and we focus so much on that that we lose sight that it is a
system. It is an entire system. It begins with registration,
and it concludes at the finality of actually having those votes
recorded and included. So my approach here is, let's stop just
focusing on just that one piece. Let's think of it as a whole.
Because the ballots in the box are integrally tied to who gets
the ballot.
Does same-day registration increase turnout? In taking a
look at some of these statistics, in the years before same-day
voter registration in Minnesota, it went below 60 percent one
time. In the years after same-day voter registration, it went
below 60 percent six times. So I think it is important to
realize not only in the average but in the individual years it
is certainly seen.
And I think part of that is attributed to Minnesota's
culture. We are Germanic, Norweigian. We just are involved. If
there is an organization for anybody, we have got it in
Minnesota. So a lot of this I believe has a lot to do with just
simply that kind of culture.
Our high school students, almost 100 percent of them are
registered to vote before they leave high school. It is a very
active part of that. So for those young people it is really an
issue. The college students who are coming here from other
States are often using same-day voter registration to vote in
elections in Minnesota on election day though they are from
another State.
My approach was to encourage everyone; and certainly the
results and that message of hope and focus on integrity, I
believe, did contribute to the upward trend in Minnesota's
election turnout during the last years. I took those
principles--access, accuracy, integrity, and privacy--before I
thought of running for Secretary of State, because I felt those
embodied all of the election system.
In Minnesota, when it came to paper ballots, which I took
office before the 2000 election and served during the time
including the tragic death of Senator Wellstone, we did an
election in 11 days, and as well we did many other things, but
we focused on those ballots. I stood for paper ballots when the
technology trend was just out of this world; and I said, no, it
can't withstand that scrutiny. We deserve better.
In Minnesota, we implemented Precinct Optical Scan paper
ballots during my watch, the methodical recounts of ballots,
aggressive training at all levels of election workers. Having
been one myself for 12 years in the polling place, I knew how
much training could really implement these changes we needed.
The auditing statewide of results and certification of the code
was implemented during my time as Secretary of State.
Now, on the other issue as well, incidents, some that you
might say, is there no stealing of votes, all these kind of
things you hear? Well, any of you who don't believe that there
is stealing of votes, next time you leave, don't lock your
house and don't lock your car door if you have that kind of
absolute trust. It is important to realize that, of course, I
think what we want is a balanced system that recognizes those
situations not only in the final end, counting ballots, but in
the beginning, which is registration.
I think that recently, as a matter of fact this week, in
the University of Minnesota daily newspaper a commentary was
written by the students in support of photo ID. These young
folks stated, in synch with the minds of Jimmy Carter, James
Baker, and Andrew Young, former mayor of Atlanta, Georgia: A
photo ID would not be a poll tax but a voting enabler. This
comes from the mouth of the University of Minnesota college
student newspaper themselves. I think that should carry a lot
of weight from these young people.
I know that also there are a lot of folks who will maybe
tout and gloss over some of the challenges. I have experienced
that. Of major import, when time is short and urgency is great
and you are doing elections in the polling place on election
day, you will have lines. It is hard to guess the number of
poll workers you need because you don't know exactly how many
are coming.
A personal instance for me in Minnesota was hearing on the
news a polling place that had run out of ballots and people
were there. I walked to the polling place. About 200 people,
they had run out of ballots. I sent my staff person with a $20
bill from my own pocket, and I said, ``Go get pens, because
when the ballot gets here they are also out of pens.'' So we
were able to pull that together. But I felt so bad that there
were people because of this situation who didn't get to vote
simply because we had election day registration and the polling
place was flooded.
Those are issues that are important. If we are going to
have a let-everyone-vote measure, then let's make sure that
everyone-is-eligible measure balances those two situations as
well.
In regards to some of the cases in Minnesota, we have the
Coates city had 93 people falsely registering to vote.
Fortunately, it was before election day, it was caught, and it
was prevented.
We had another deputy county administrator who told a
polling place person, yes, a green card is okay to register to
vote.
We had a car trunk that was collected with over 300 voter
registrations just stuffed in a trunk; and, again, that was
caught by a routine traffic stop at the airport.
Thirty-four non-U.S. citizens registered to vote in
Minnesota, documented after HAVA, because we are required to
verify things. Twelve of those also did vote. Those were turned
in to the Department of Justice.
Those are some of just the larger ones, and indeed two of
those that were actually prosecuted. It is difficult to
prosecute after an election.
Thank you very much for the opportunity to be here.
Ms. Lofgren. Thank you for your testimony.
[The statement of Ms. Kiffmeyer follows:]
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Ms. Lofgren. Finally, we go to Mr. Rapoport.
STATEMENT OF MILES RAPOPORT
Mr. Rapoport. Thank you very much, Chairman Lofgren.
I am Miles Rapoport, and I currently serve as the President
of Demos: A Network for Ideas and Action. Demos is a
nonpartisan public policy center in New York, which has been
dedicated since its founding in 2000 to the expansion of
democratic participation. We have felt all along that Election
Day Registration is one of the mechanisms we could use, one of
the policies that we could adopt that would significantly
enhance voter participation.
I want to make mention of the fact that I have longer
written testimony that I will summarize; and also that there
are three reports, including Professor Lorraine Minnite's
report.
Ms. Lofgren. Without objection, those will be entered into
the record.
Mr. Rapoport. Thank you.
[The information follows:]
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Mr. Rapoport. I think the single largest argument for
election day registration has been discussed a lot, and that is
that it increases voter participation. It seems a fundamental
reality that many of us--and I served as Secretary of the State
for the State of Connecticut for 4 years in the 1990s--have
observed the precipitous drop in voting percentages that
occurred in the early 1970s. This has been partly because we
allowed 18-year-olds to vote, partly because of disillusion
around Watergate, and we have never regained those levels. So
we have actually nationwide a serious drop which now we are
hoping to come and push back up a little bit.
I think we also understand that people's lives are
complicated and that the more you can make something convenient
for people the more they will access it. The private sector
understands this very well.
When I was young, I used to get a paycheck every Friday
afternoon at 2:30, race to the bank, stand in line for about an
hour with all the other people who got their Friday paychecks,
because you knew that if you didn't get your paycheck cashed on
Friday, you didn't have any money for the weekend. I tell my
son, who is sitting back here, that that is the way it used to
be, and he looks at me like it is an Abraham Lincoln log cabin
story.
So, no self respecting bank would require people to take
extra steps in order to get their money. But when it comes to
voting we require people to register, in some cases, 30 days in
advance.
The turnout figures, the participation rates are clearly 10
to 12 points higher in the States where they do have Election
Day Registration. Not all of that can be attributed to Election
Day Registration itself. I think the academic studies that
Professor Leighley referred to, about 4 percent, with larger
increases for certain parts of the population, are accurate.
There are two corollary benefits to election day benefits
beyond the increase in participation, which is, of course,
first and foremost.
One, it does reduce the problems with provisional ballots.
There have been huge problems with provisional ballots on the
counting. We know that a third of the provisional ballots in
the 2004 Presidential election were not counted. The
possibility of huge, lengthy battles about who was eligible to
cast a provisional ballot and have it counted is a dramatic
possibility.
There are also, as Representative Ehlers mentioned,
additional costs, but I don't think that has been a central
focus here and doesn't need to be.
The second corollary benefit is interesting, and I say this
as a former candidate. I do believe that it widens and enriches
the political debate that we will have. You are taught as a
candidate only talk to people who are registered and on that
list. If you go out knocking on doors, you walk right by a
house even if people want to talk to you if they are not on
that list. Those people are ignored as far as the political
process is concerned. That is efficient as a candidate, but it
is not very healthy for our democracy.
I think we want to create a situation in which the
campaigns and candidates talk to everyone, because everyone is
a potential voter. I think that flow of information and flow of
discussion would be much, much better.
Let me deal with the arguments against Election Day
Registration that have been mentioned. One has been the
administrative complexity at the polls, where there will be
difficulties. Clearly, as with any new policy, the poll workers
need to be trained, the procedures need to be put in place, a
separate desk or whatever needs to be set up for the
registrants so they are not standing in line, creating lines.
But that has been shown in every State that has had Election
Day Registration, some for 30 years, to be entirely manageable.
The second is the cost, where there clearly are additional
costs of additional personnel. I think they are minor, and I
think they are offset by the costs of hiring additional people
to get the voters on the rolls where there is not Election Day
Registration and the counting of provisional ballots
afterwards.
The most important argument that has been adduced has been
the argument that will open the way to fraud, and I want to
address that very directly. It is certainly a theoretical
possibility. I don't think anybody could say, don't worry,
there is no possibility whatsoever. There are problems in our
current system in as many States without Election Day
Registration as there are in States with. We have had problems
in Connecticut, mostly minor, mostly with absentee ballots. But
the overwhelming thrust of the evidence here is that it simply
has not happened and is very unlikely to happen.
I think that the study by Professor Minnite documents that.
She looked at 4,000 news reports for all six EDR States over
the period of 1999 to 2005, found only 10 incidents that were
even substantive and investigated and prosecuted, and only one
of those involved an impersonation and that was in New
Hampshire where a son voted for his father.
So I think that the fraud issue is a potential one. We are,
as elected officials, election officials, or people who are
interested in our elections, having to balance. You will have
the responsibility to balance. But we have a situation here
where I think there is very little evidence that fraud will
increase, a huge amount of evidence that this will draw
millions of new people into the polls; and, on balance, for the
health of our democracy, it seems that Election Day
Registration would be a very, very good policy to adopt
nationwide as well as State by State.
Ms. Lofgren. Thank you very much for your testimony.
[The statement of Mr. Rapoport follows:]
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Ms. Lofgren. Thanks to all of you for very interesting
testimony.
We now go to the time in our hearing when we have a chance
to ask questions; and I will turn first to my colleague from
California who represents San Diego, Susan Davis.
Mrs. Davis of California. Thank you, Madam Chair.
I appreciate your all being here. Thank you very much.
One question that really occurred to me while you were
talking, have we done very much tracking of those people who
vote in same-day registration, whether or not they continue to
return to the polls for subsequent elections? Do we have any
data on that, as far as you know?
Ms. Leighley. I am not aware of any tracking in terms of
panel data on individuals. I would note, we do have some work
which suggests that the key is getting those people in the door
the first time; and at that point the political interest is
enhanced. Mobilization is enhanced. They have entered in. So
our best guess, from fairly strong theoretical arguments, is
that there would likely be a subsequent effect.
Mr. Tokaji. If I could just add one thing. There is also
evidence that the benefits from election day registration in
terms of increasing turnout do persist over time, specifically
from the three States that Professor Leighley mentioned in her
testimony earlier.
Ms. Kiffmeyer. Representative Davis, Chairman Lofgren, I
believe that there is an effect that, no matter how you
register to vote, no matter where your first time voting is,
that once you begin that you are more likely to continue. But I
don't think it makes it any more so, as an opinion, how you get
registered or which day. But I do think that it does make a
difference, and that is why we very much focused on making sure
that those young students in Minnesota were registered and had
those opportunities right away. First-time voters are more
likely to continue as they go along, but I think the
methodology where they register isn't proven to be as big a
factor.
Mrs. Davis of California. Thank you.
You are capturing, though, a lot more people. So I think
that you would suggest that if they continue to be voters that
you certainly would have them when you might not have
otherwise. And I think we still have questions about why we
weren't able to get to them in 30 days prior, but that is
another issue.
One of the things I think we would all agree on is no fraud
is acceptable. But I think we have also talked about the
suppression of voting issues as well. And in your experience,
is there an acceptable level in some ways? We know that there
is going to be problems, but they seem to be rather minimal.
And we know that there is tremendous suppression that can exist
in communities just as well. I mean, is that something that in
your positions you have discussed?
Because it would seem to me that, while we don't like it,
there may be an acceptable level. But it is also clear that--
what are the red flags that go up when you know that something
is really going wrong? And maybe we need to kind of look at
what are those red flags. And, again, how would you act to
secure whether it is same-day registration or even registration
generally that perhaps we are not addressing?
Mr. Tokaji. Let me take the position that no voting fraud
is ever acceptable. I think we are in agreement on that point.
I would also suggest that, no matter what kind of system
you have, there are always going to be a few people out there
who are trying to cheat.
I think it is important when we are talking about fraud to
be clear about what we mean and in particular separate it into
three categories. There is, first of all, the voter who goes to
the polls on election day and tries to cheat, pretending to be
someone they are not. That is extremely rare. A bit more
common, though also rare, is people trying to cheat through
absentee ballots; and if you are an individual voter trying to
cheat, that is the way you are most likely to pursue. Also rare
is the third kind, but again a bit more common than the first,
which is insider fraud, people on the inside stuffing ballots
or things like that.
What should be emphasized is that the risks of fraud
arising from election day registration are very small. Because
if voters are going to try to cheat, they more often than not
do it through absentee ballots, not through going into the
polls on election day, pretending to be someone they are not or
otherwise trying to cheat. And that is demonstrated by
Professor Minnite's study.
So I don't think there is any acceptable level of fraud,
but I also don't think that the evidence supports the
conclusion that election day registration increases it. It is
clear that election day registration does increase turnout, and
this is where we have a huge problem in our society that we
have not satisfactorily addressed. Not nearly enough people
come out to vote; and, moreover, certain groups, including
racial minorities, poor people, younger people, people with
disabilities, are underrepresented in our voting polity. And
that is a serious problem. Election day registration is the
best way I know of, based on the social science evidence, to
increase registration and participation through election
administration.
Mr. Rapoport. I would add a quick comment on that. It seems
to me that if we make the assumption that we want to guard
against fraud as effectively as possible, there are still two
paths to go. One is to create an election system that works as
smoothly and as efficiently and where we give the prosecuting
authorities, the election enforcement commissions in the States
and the Attorney General in the State, the resources that they
need to really actively go and search out the fraud, look at it
in a case-by-case basis, and do it.
The second path is to sort of tamp down on the process of
allowing people to vote in a more general way, catching the
fraud but also I think limiting significantly the amount of
people that will vote.
And I think the first path we have the capacity to do with
the digitized statewide voter lists, with increasing the
sophistication of the voter identification processes and
mechanisms. I think those are the better ways to go.
Ms. Lofgren. The gentlelady's time is expired.
I turn now to the ranking member, the gentleman from
California, Mr. McCarthy.
Mr. McCarthy. Thank you, Madam Chair.
I want to thank the whole panel. I appreciate all the
testimony.
Like Congresswoman Davis said, we want to make it as easy
as possible for people to vote, and we have evolved so far in
everything we do in America. You think today--and Mrs. Davis
and I had a conversation just the other day about other
countries and how you see the turnout so much larger than
America, and people waiting in line, people having to walk to
the polls. And we could vote absentee. States let you vote
early out there for 2 weeks at a time in shopping centers and
everything else.
But one testimony struck me very unique, Ms. Kiffmeyer,
taking from the whole perspective. Because in this committee we
are also looking at contested elections. We have one issue in
Florida 13. So we are looking at, is there an undervote or
whatever going through? But do we ever also look at, if we are
going to do a complete accounting, if we are looking at just
the final product, was this person actually able to vote or
should they have?
And I do have a real concern in this whole debate of
whether it be a provisional or not. Because once it is inside
the ballot, you don't know which ballot it was. There is no way
of checking.
And when you look at how close these elections are, then
you have the whole argument about, are these people informed?
Are we not allowing them to be more informed? The more we get
in voter registration, that is how people use the voter rolls.
Some people use them for wrong reasons. But that is the main
reason why we are able to get information out.
My question would be to Ms. Kiffmeyer, have you found--
because you have had same-day voter for quite some time, did
you find with the college students--and you put about the ID
there. Did you find any fraud within there? That people from
other States, because--coming in there, going to college,
voting back home and also voting there as well?
Ms. Kiffmeyer. Representative Lofgren and Representative
McCarthy, certainly we have cases. There are instances of
convictions. But what we have found, though, is that the tools
that we need in order to verify some of these things are
nonexistent. In other words, is there fraud is one question.
The second thing is, do you have a system to catch it? Do you
have a system that can give you that degree of certainty?
When you have students coming from other States and voting
in your State, there is no ID requirement. They come in on
election day. The ballot is live and counted. Then, afterwards,
a nonforwardable postcard is sent to them. What happens to that
nonforwardable postcard? I mean, those are the kinds of
researches.
Newspaper reports, by the time things get to a newspaper,
there is lots of stuff going on that never hit the newspaper.
You need to dig a little deeper and also be wiser about the
actual system and what is really happening to know what to do
there.
But those tools to verify that those students--did they
vote in their home State? Did they vote also in Minnesota? Can
we know? And shouldn't we know?
Where are the tools that enable us to give what I believe
we owe to the American people? I mean, we do it on the side of
the ballots. We have the recounts and we have all this and we
have attorneys and we have all this stuff going on. But it
seems like on this side, when it comes to registration, there
is almost a sense of faith-based trust in regards to
registration, that, ergo, they registered, ergo, it must be
true, without the same level of scrutiny that we give in the
ballots themselves.
Mr. McCarthy. We are pretty much leaving the door unlocked,
like your analogy earlier, because we don't have the
information to even check to see about the accuracy within
there.
I know HAVA has--if you are a first-time voter and you
register, first-time registered and first-time voter, they make
you form a check of an ID or you get mailed it back. Would you
think, if a person goes to the ballot and they are first-time
registering to vote, should there be any other check there?
Should people show an ID?
Ms. Kiffmeyer. Well, certainly when you have your check and
you go to cash your check, in most every instance you are
required to show some sort of identification to tie those two
records together. In other words, here is my name on the roster
and here is my name on this ID, and you tie those things
together. That is just a common-sense thing that is used
everywhere else in our society. And the only place it is wholly
absent, many times, is in the polling place on election day,
where you are getting a vote, a real live ballot.
Mr. McCarthy. Because it is the only registering by mail
the first time that we do that check.
Now, the only other question I have, maybe to Mr. Rapoport,
would you support showing an ID? I know a lot of people use
driver's license. I come from a State that first proposed
giving driver's license to illegals. It got repealed. Where is
your position on that?
Mr. Rapoport. I think it is reasonable for a first-time
registrant to show identification. I think the question
becomes, ``what are the acceptable forms of identification?"
We negotiated this very carefully when I was the chairman
of the Government Administration and Elections Committee in the
Connecticut legislature about what form of ID. And where we
ended up was a list of acceptable IDs, driver's license
probably the most used, electronic benefit transfer cards,
student IDs, but anything that has both a signature and either
a picture or an address. And then the last, the sort of fail-
safe, is an attestation requirement where a voter can, if they
are absolutely lacking ID, sign an affidavit stating--under
penalty of perjury stating I am who I am. And if someone else
were to come and vote there, under that name you have at least
the beginnings of a signature to do it.
I will say that in the 15 years since that system has been
enacted in Connecticut, there has been not a single prosecution
for false identification. There have been election fraud issues
in Connecticut. They have been entirely in the misuse of
absentee ballots.
Mr. McCarthy. One quick follow-up. I know that was 15 years
ago. Would you still have that opinion now, with the debate
going on about illegals being able to have a driver's license?
Would a driver's license still be okay for you for the IDing,
for that purposes?
Mr. Rapoport. I imagine that it would. I think there
probably would be some differentiation in the license.
But I also say this, that I think that the people who have
studied this generally feel that people who are not citizens
and who are subject to deportation or subject to real problems
are very unlikely to expose themselves by coming out to vote. I
think it is hard to get them to respond to many things at all.
Mr. McCarthy. Madam Chair, I do want to thank you for--it
must have been our miscommunication that you did from 6-4. And
if we are moving beyond three in the majority and one on the
minority for witnesses, it would be my intent to withdraw my
rule 11, and I thank you for that.
Ms. Lofgren. We should have a discussion of this at a later
time.
Mr. Ellison is recognized for 5 minutes.
Mr. Ellison. Thank you, Madam Chair; and let me thank all
the panelists. And I hope you all will forgive me for thanking
Ms. Kiffmeyer to be here in particular. She is from Minnesota,
and she and I worked together over the years. She could report
how we showed up in places around the district and tried to
encourage people to go vote, and I want to thank you for the
work you did then and for coming out today.
Professor Tokaji, one question I want to ask you is there
seems to be sort of a dispute in the statistics about whether
or not same-day voter registration increases voter turnout.
Secretary Kiffmeyer said that we already had high voter turnout
in Minnesota, and so same-day voter registration didn't really
change that. What if we look at it in a more broad sense, look
at the more comprehensive look at all the States that have it?
Can you say with some authority that it actually does increase
voter turnout?
Mr. Tokaji. I say with absolute confidence that election
day voter registration increases turnout, and I believe I have
looked at all the social science evidence that exists on this
subject. I think Secretary of State Ritchie explained one of
the blips in Minnesota, which had to do with the fact that we
were lowering the voting age at around the same time as some of
those studies. But there is no reasonable basis for disputing,
based on the evidence that election day registration increases
turnout. It is--I would say it is a social scientific fact,
just as evolution is a natural scientific fact, is at that
level of clarity. There is reason----
Mr. Ellison. There are people who debate that, too.
Mr. Tokaji. There are always going to be people who debate
certain things. There may be some reason for quibbling about
exactly how much you think it increases turnout, but there is
no reasonable basis on the evidence for questioning that it
increases turnout.
Mr. Ellison. Thank you, Professor; and thank you. Everybody
had an excellent presentation I want to say.
What about your thoughts on this, Professor Leighley? Do
you agree or concur with Professor Tokaji on this issue?
Ms. Leighley. I do. This is one of the few places where, in
studying electoral behavior in the United States, there is a
clear unanimity in all of the studies about increases that
result from election day registration; and it is based on
empirical evidence, things that we actually observe in the
world, as opposed to concerns or questions or allegations.
Mr. Ellison. How about you, Secretary Rapoport? Do you
concur with Professor Leighley and Professor Tokaji?
Mr. Rapoport. I do, and I think the evidence is consistent.
I want to call the committee's attention to a chart which is
actually not in what I introduced, but I can leave it and
copies can be made.
Mr. Ellison. Can I offer unanimous consent that it be
introduced?
Ms. Lofgren. Yes. Without objection.
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Mr. Rapoport. Thank you very much, Madam Chair.
We did a chart just to look at this very question, about
were States higher anyway and does Election Day Registration
make a difference? And what we found, that if you go back to
1968 to the Presidential elections, all six of the States that
had election day registration in 2002 were indeed higher than
the national average by anywhere from 6 to 9 points. But once
they adopted election day registration, it went up to 12 to 13
and 14 and, in some cases, 17 and 18 percent higher. So I think
there is a very clear distinction to be made.
Secretary Kiffmeyer is correct, that some of the States
already had very high voting traditions. But there is no
question that EDR has significantly increased this. And I will
leave this chart with the committee.
Mr. Ellison. So, Secretary Kiffmeyer, why are these
distinguished, learned individuals wrong?
Ms. Kiffmeyer. I don't think I take a position that way. I
think that what I am looking at----
Mr. Ellison. Excuse me. I am sorry. So you agree with them.
Ms. Kiffmeyer. I don't think that is a point that I was
making.
Mr. Ellison. Well, do you agree with them?
Ms. Kiffmeyer. I think that they are giving a lot of facts
and a lot of background that--especially when you get into some
of these studies that they have done, such as the study done by
Miles, and when you are reporting another study where they were
using newspaper reports to do their study as a basis for what
you had found--so I think all of their analysis, and I think
that, actually----
Mr. Ellison. Madam Secretary, forgive me for my
interruption. I only have 5 minutes. Of course, I would never
interrupt you, as you know, I respect you so much. But do you
disagree with them or do you agree with them?
Ms. Kiffmeyer. I think I don't have all their studies and
facts and figures.
Mr. Ellison. So you would say that you don't know?
Ms. Kiffmeyer. Well, I haven't looked at all of their
studies and all of their research.
Mr. Ellison. Well, you would have to agree, disagree, or
you don't know.
Ms. Kiffmeyer. I think I have stated, though, that they
have given a lot of facts and a lot of information, and you are
asking me to just ratify all of their statements and their
opinions----
Mr. Ellison. No, I am not asking you to ratify. You could
say they are wrong and they have got it all wrong and they
looked at the data wrong.
Ms. Lofgren. The gentleman's time has expired.
Mr. Ellison. Ten more seconds.
Ms. Lofgren. By unanimous consent, 10 more seconds. But
since you and Ms. Kiffmeyer know each other very well, you can
also finish this at a later date.
Mr. Ellison. That is right. Madam Chair is absolutely
correct. I was just hoping to get Secretary Kiffmeyer on the
record taking a position on this issue. But if--but I--it may--
one last chance to see which----
Ms. Lofgren. I think Ms. Kiffmeyer has probably concluded
her----
Mr. Ellison. Okay.
Ms. Lofgren. And we will now turn to Mr. Ehlers.
Mr. Ehlers. It is very tempting to satisfy Mr. Ellison's
request by just saying they are wrong and get it over with.
But, no, just expanding on that a bit. I just cast my lot
with Ms. Kiffmeyer. I have the same hands-on experience that
she has had. I have seen it. And I respect these gentlemen.
Since I am supposed to be an egghead myself, I certainly don't
want to castigate any of the witnesses for their research. But
there is something to be said for the hands-on, having to deal
with the problem on election day, which is a very frantic time
for all election workers, and deal with all the problems that
come up. And there are lots of them, innumerable problems that
come up. You can't describe all of them.
But I will certainly cast my lot with Ms. Kiffmeyer and the
practicalities and the difficulties that you encounter in this
situation. And that doesn't mean that I am against same-day
registration. I am just cautioning everyone here that it opens
multiple opportunities for fraud. And I am not talking so much
about the fraud on the part of an individual. I am talking
about organized fraud. Bussing, gathering people up and--well,
I shouldn't use the term bus. What I have seen is vans, not
buses. But picking up people and getting them to vote when they
shouldn't vote and telling them that it is legal for them to
vote when in fact it is not legal for them to vote.
You can't just have the pie-in-the-sky attitude. This is
great. It improves turnout. You have to look at all aspects of
it, and that is what I want to thank Ms. Kiffmeyer for doing,
because she has given us those aspects and I respect that.
Thank you.
Ms. Lofgren. The gentleman yields back.
I just want to ask a couple of questions, and then we will
thank you all and go to our floor vote.
We talked earlier about the provisional ballots and that
many of them are not counted. Now, maybe--and we don't know why
they are not counted. But, for the two professors, have you
given any thought to whether there should be some kind of
nationwide standard for how provisional ballots are dealt with?
And, if so, what those standards ought to be?
Mr. Tokaji. Let me say a couple things on this.
First, I am actually someone who is generally very cautious
about recommending that we implement national standards when it
comes to the administration of elections. Our elections have
traditionally been run at the State and local level; and I
think that, generally speaking, our State and local officials
do a fantastic job.
Ms. Lofgren. I do, too.
Mr. Tokaji. I do think that there is some place for the
Federal Government here. Frankly, I think that HAVA should have
been written to make clear that people who mistakenly cast a
provisional ballot in the wrong precinct should have those
ballots counted, at least for races they were entitled to vote
in. We do have statistical evidence which I have cited in my
testimony that States that do count those ballots count a much
higher percentage of provisional ballots.
Beyond that, I would be wary of too much Federal
legislation on this question. I do think it is essential,
however, that every State have clear standards for what
provisional ballots should count and that those standards and
procedures as well be followed uniformly throughout the State
so as to avoid an equal protection problem.
Ms. Lofgren. Professor--Mr. Rapoport, you have made a
multi-decade study of these issues. Do you have----
Mr. Rapoport. Yes. I think that the absence of national
standards on the counting of provisional ballots and on several
other kinds of issues is a real problem. So I would, despite
having been a State-elected official and not wanting too much
Federal control, I think that voters in all jurisdictions are
entitled to know that their provisional ballots will be counted
more or less in the same way. And it is clear from the
testimony that has been given here that one of the real virtues
of Election Day Registration, if it were adopted, would be to
minimize the problems with provisional ballots. I think that
would be a good thing as well.
Ms. Lofgren. Ms. Kiffmeyer, you were President of the
Secretaries of States Association, and I know the Secretaries
of State don't like Federal interference. On the other hand,
there is an equal protection issue if there is wide variation.
What would your thoughts be on some kind of national standard
that we work with the Secretaries of States to develop?
Ms. Kiffmeyer. Well, Madam Chairwoman and members of the
committee, one of the things you saw in the implementation of
HAVA was there was a standard in regards to the equipment. But
they also gave a methodology by the standards board, which was
made up of local and State election officials, to work together
to review those, and under the EAC. And so I think there was a
methodology there that enabled the States and locals to do
that.
It was interesting, it was very important to us to make the
issue that it was still up to the States to voluntarily comply
with those standards. Now, interesting enough, all 50 States
have. Why? Because they have had input. They have been able to
establish that. And it was made up of those who actually
administer elections.
So I think in that particular case you see that, even
though it was voluntary, the heart and the desire to do good
elections--as a matter of fact, making it not voluntary would
have actually put a big resistance to the whole situation. So
that I think is an example.
I don't know. I think that, really, we don't have Federal
elections. We have State elections for Federal officers.
Ms. Lofgren. I would just like to ask Mr. Tokaji, you have
done so much research on this. When I registered to vote in
California a long time ago, it was before we had postcard
registration, but now that is how everybody registers that way.
And you just fill it out and sign it, and there is no--you
don't show up anywhere. You don't show any ID. And it sounds to
me that what is being proposed on election day acts as a much
higher standard. You have to show up in person and sign it. It
is a lot more rigorous than what California has. Is that just
wrong?
Mr. Tokaji. I think you are exactly right, Madam Chair. And
a couple of other social scientists have made precisely that
point, that when you register on election day you are actually
appearing before someone in person, representing that you are
who you say you are, signing a statement under penalty of
perjury that you are and providing some sort of identifying
information.
When things go through the mail, there are all sorts of
opportunities--I don't think they happen very often but at
least opportunities--for improprieties that don't exist when
someone is doing it in person.
Ms. Lofgren. My time has expired. But I will just say that
this whole issue of--I just have to make this statement.
Because, in addition to chairing the election subcommittee, I
chair the Immigration Subcommittee in the Judiciary Committee.
And all that we have learned--I mean, people who are
undocumented, they are risking their lives crossing the desert
to get a job, they are not risking their lives to come over and
vote. It is a whole different dynamic. And once you are here,
they are laying low. They do not want to be found out.
So I just think it is important to state that. There is no
evidence to support that.
But I will get off my soapbox and thank all four of you for
being here today. We have 5 legislative days to pose additional
questions. If we do that, we would ask that you try and respond
as promptly as possible.
A lot of people don't realize that the witnesses who come
before our committees are volunteers and come here just to help
our country by sharing their expertise; and so we thank you
very much, each of you, for doing that.
And this hearing is now adjourned.
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