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


 
          VOTER REGISTRATION AND LIST MAINTENANCE (CONTINUED)

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON ELECTIONS

                           COMMITTEE ON HOUSE
                             ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

               HELD IN WASHINGTON, DC, NOVEMBER 16, 2007

                               __________

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                   COMMITTEE ON HOUSE ADMINISTRATION

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

                       Subcommittee on Elections

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


          VOTER REGISTRATION AND LIST MAINTENANCE (CONTINUED)

                              ----------                              


                       FRIDAY, NOVEMBER 16, 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 and McCarthy.
    Staff Present: Liz Birnbaum, Staff Director; Thomas Hicks, 
Senior 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; 
Gineen Beach, Minority Election Counsel; Roman Buhler, Minority 
Election Counsel; Bryan T. Dorsey, Minority Professional Staff; 
and Salley Collins, Minority Press Secretary.
    Ms. Lofgren. The subcommittee will come to order.
    This is the continuation of the Voter Registration and List 
Maintenance hearing. We have two panels today, and I will begin 
by asking the first panel to come forward--Mr. Leiendecker, Mr. 
O'Neal, Mr. Bell, Ms. Mitchell--and I will introduce them.
    Mr. Leiendecker is the Republican director of the St. Louis 
Board of Election Commissioners. The Board is responsible for 
the planning and the administration of elections within the 
jurisdiction of the city of St. Louis, Missouri. It is also 
responsible for the voter registration records of more than 
200,000 citizens registered to vote in the city of St. Louis 
and the processing of all petitions within the jurisdiction. 
Prior to joining the St. Louis City Board of Elections, Mr. 
Leiendecker was the chief of staff for Missouri State Senator 
Bill Alter. He also served as the special election investigator 
for former Secretary of State Matt Blunt, now the Governor of 
Missouri.
    Edward O'Neal is with us. Mr. O'Neal previously served as 
both the chair and the vice chair of the Norfolk Electoral 
Board. We look forward to his testimony and his experiences in 
administering elections in Virginia.
    Mr. Bell, Charles Bell, is a partner at Bell, McAndrews & 
Hiltachk, LLP, where he practices both political and election 
law. Mr. Bell also serves as general counsel to the California 
Republican Party. He was the first vice president of the 
Republican National Lawyers Association and vice chairman of 
the Federalist Society Free Speech and Election Law Practice 
Group. Prior to his private practice work, Mr. Bell served as a 
consultant to the American Bar Association's Committee on 
Election Laws, was an advisor to the California Election Law 
Recodification Project and was counsel in the Office of General 
Counsel at the Federal Communications Commission.
    Finally, we have with us Ms. Cleta Mitchell, who is a 
partner in Foley and Lardner's Washington, D.C., office, and 
she is a member of the firm's public affairs practice. Ms. 
Mitchell advises corporations, nonprofit organizations, 
candidates, campaigns and individuals on State and Federal 
election campaign finance law and compliance issues related to 
lobbying, ethics and financial disclosure. Prior to her work at 
Foley and Lardner, Ms. Mitchell served as a member of the 
Oklahoma House of Representatives for 8 years, as well as 
practiced litigation in administrative law in Oklahoma City.
    Your full written statements will be made part of the 
record of this hearing. At this time, we would ask each of you 
to deliver testimony in 5 minutes' time, summarizing your 
written testimony.
    That little machine on the table will tell you how the time 
is being managed. When the yellow light goes on, it means that 
4 minutes have been taken. When the red light goes on, it means 
your time is up, and we would ask, at that point, if you could 
summarize so that we can hear from all of the witnesses.
    With that, we would like to hear from you first, Mr. 
Leiendecker, and we will go right down the row.

  STATEMENTS OF MR. SCOTT LEIENDECKER, REPUBLICAN DIRECTOR OF 
  ELECTIONS, ST. LOUIS BOARD OF ELECTIONS; MR. EDWARD O'NEAL, 
 FORMER MEMBER, NORFOLK ELECTORAL BOARD; MR. CHARLES H. BELL, 
   JR., ATTORNEY, BELL, MCANDREWS & HILTACHK, LLP; MS. CLETA 
      MITCHELL, ELECTION ATTORNEY, FOLEY AND LARDNER, LLP

                 STATEMENT OF SCOTT LEIENDECKER

    Mr. Leiendecker. Thank you, Madam Chairman, for having me. 
It is an honor to be here in front of you today, representing 
the St. Louis City Board of Elections.
    What I would like to talk to you about is--this has always 
been an ongoing problem at the City Board of Elections, the 
registration, getting people up to date and active with our 
rolls.
    In 2000--I don't know if you are familiar with some of the 
problems that we ran into at that time. I wasn't involved at 
the St. Louis City Board of Elections, but we were that close 
to being another Florida. There were a lot of problems. What 
ultimately happened was St. Louis City was ultimately sued, and 
a consent decree was put in place for us to follow.
    A lot of positive things came out of that. We had an 
inactive list that, you know, was taken statewide by then-
Secretary of State Matt Blunt, and that is one of the positive 
things that has come out of the consent decree. Another thing 
that we have done that I think--I don't know if other election 
authorities do it across the country. I know that, in Missouri, 
there are a few who do it. We do it. I know St. Louis County 
doesn't do it. But we have cell phones in the polling place, 
which really helps out with communication between the judges 
and back here at the home base for the Board of Elections.
    How we keep our rolls cleaned, I want to talk to you about 
our canvas that we do that is mandated by State law. What we do 
is we send out a first mailing. It is not forwarded. When that 
first mailing comes back, then we send a second mailing. With 
that second mailing, when that comes back, they put the 
individual on what is called the ``inactive list,'' what I just 
talked about. The inactive list is in effect for two Federal 
elections and, at that time, an individual can be removed.
    I want to talk to you about problems that we have faced in 
the past, what I call--it is an umbrella of different election 
fraud. A lot of people think that fraud is people going into 
the polling places, stuffing ballot boxes and committing fraud 
on Election Day. There is more to it than that. One thing that, 
you know, is a problem is registration fraud, petition fraud 
and, ultimately, voting fraud, which it could ultimately lead 
up to. Those are some things that we have dealt with in the 
past.
    I want to talk to you about this last election. In 2006, we 
had many problems with an organization called ACORN that did a 
lot of petitions--or some registrations. There were over 5,000 
that came into St. Louis, about 15,000 that came into Kansas 
City. The disserving thing that happened was that--what they 
were doing was they were basically transferring registrations, 
people who did not know it, from one address to another. We saw 
that immediately. We took action immediately. We found that 
maybe there were thousands of individuals who had transferred 
their registrations. In Kansas City, it is, like I said, 
15,000. I cannot speak for them, but it is a problem that could 
have created an enormous problem in the 2006 election.
    That is a concern for this upcoming presidential election. 
I am concerned about it. I think other jurisdictions, 
especially in Missouri, are concerned about it--St. Louis 
County, Kansas City. We actually meet now on a monthly basis to 
talk more about some issues like this and how we can better 
manage issues that come up like that.
    Another problem that we face is petition fraud. We have 
recalls that happen in St. Louis quite a bit, not the type that 
happen in California but on a smaller, you know, field--
aldermen. We have got one currently facing our mayor that they 
are trying to get.
    What happens is these individuals do a two-step process. It 
makes it easier for them to get these names on the petition. 
They fill out the registration cards there, and then they sign 
the names. What happens is, when we send a letter to confirm if 
that individual is an actual person--we call them ``ghost 
voters,'' in a sense--then what happens is that letter comes 
back to us. Then we can----
    Ms. Lofgren. Your time has expired.
    Mr. Leiendecker. Oh, sorry.
    Ms. Lofgren. I don't want to cut you off in mid-sentence.
    Mr. Leiendecker. I am sure there will be questions.
    [The statement of Mr. Leiendecker follows:]

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    Ms. Lofgren. Oh, all right then.
    Mr. O'Neal.
    Mr. Leiendecker. Thank you.

                   STATEMENT OF EDWARD O'NEAL

    Mr. O'Neal. Thank you, Madam Chairman.
    An essential part of the foundation of our republic is the 
opportunity for all qualified citizens to elect their 
representatives through a secret ballot. In order to ensure 
that only qualified persons vote, election officials must 
maintain an accurate database. And that requires the positive 
identification of potential voters at the time of registration 
as well as at the polls. Illegal votes dilute the legitimate 
votes of all voters, regardless of political persuasion.
    The National Voter Registration Act has made it easier to 
register, but unfortunately, it has also made it easier to do 
so without adequate identification. In simpler times, citizens 
voted close to their homes, with their neighbors manning the 
polls. It was readily apparent when an interloper attempted to 
vote. In our mobile society, this is no longer true. Positive 
identification is absolutely necessary to protect the votes of 
legitimate voters.
    Previous testimony a couple of weeks ago suggested that, 
just as there is a presumption of innocence in criminal cases, 
applications for registration to vote should also be presumed 
legitimate and that efforts to prove otherwise should be 
limited. I do not agree. Let us look for a minute at the 
potential consequences of not investigating questionable 
applications.
    In 2005, the city of Norfolk experienced a massive surge of 
applications, the vast majority of which were submitted by 
third-party organizations, one of which was Project ACORN. Of 
some 5,000 applications presented, many were questionable. Some 
were simply mistakes on the part of the applicant, but 
approximately 1,000 of those 5,000 had to be denied because of 
serious flaws. Of those denied, 213 applications contained 
Social Security numbers which the Social Security 
Administration confirmed did not belong to the named 
applicants. Some of those numbers had belonged to deceased 
persons.
    761 felons denied having been convicted of a felony. The 
Commonwealth of Virginia keeps a special database of all felons 
whose rights have been restored, and none of those had 
completed a much-simplified process for restoration. 
Parenthetically, a previous witness here stated that her State 
keeps no list of felons. I don't understand how she manages to 
keep felons off of the rolls without such a list.
    Signatures on some applications did not match signatures 
already on file or on applications subsequently received from 
those persons. An employee of one of the third-party 
organizations admitted to having completed 14 applications 
where she obtained the names and addresses from a local 
telephone book. Apparently, there are few, if any, attempts by 
employees of these third-party organizations to determine 
whether the applicants are entitled to be registered.
    The NVRA, as an attempt to increase voter registration, had 
mandated Government agencies, other than dedicated voter 
registration offices, to offer applications to prospective 
voters. While these agencies act in good faith, their employees 
have other primary responsibilities and, subsequently, do not 
always perceive problems with the applications submitted. 
Applications received from these agencies have a high rate of 
error.
    Further, our experience is that some persons who have 
registered at places like the DMV never intended to register 
and frequently do not vote.
    As you can see, regardless of good intentions, there are 
forces at work which have the potential to degrade the 
integrity of our voter registration rolls. Investigating 
questionable applications is tedious and expensive yet 
critical. The provision of the Help America Vote Act, which 
requires Statewide registration systems, is a very positive 
step. However, as a high-turnout presidential election 
approaches, there is growing concern about the ability of 
registrars to maintain database integrity, partially due to 
questionable tactics on the part of these third-party 
organizations. The legal process against registration fraud 
moves slowly and is difficult to prosecute because of the 
necessity to prove that fraudulent action was willful.
    The future of our Nation and of our form of government 
hinges on our system of elections. To summarize, we need to 
make major improvements in our voting system to include: one, 
requiring that voter registration be conducted in person before 
registrars whose first duty is voter registration; two, 
requiring positive identification at registration as well as at 
the polls; three, permitting registrars to remove ``deadwood,'' 
so-called, from the rolls in a more expeditious manner; and 
four, ensuring that the public understands that the purpose of 
the provisional ballot is to compensate for administrative 
errors and to further ensure that voting officials count those 
ballots when appropriate.
    [The statement of Mr. O'Neal follows:]

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    Ms. Lofgren. Thank you, Mr. O'Neal, for your testimony.
    Mr. Bell.

                   STATEMENT OF CHARLES BELL

    Mr. Bell. Thank you, Chairwoman Lofgren, for the 
opportunity to testify before the committee on the subject of 
voter registration and list maintenance. This is a critical 
subject for the future of American elections because the 
integrity of the voter registration list is essential to the 
integrity of the entire election process.
    This subject needs to be considered in light of two 
concerns: voter fraud and voter participation. Voter 
participation is the lifeblood of the American election 
process, and we should ensure that every eligible voter is able 
to cast his or her ballot. And interference with the right of 
any eligible voter to exercise the franchise must not be 
tolerated, but at the same time, we must view any effort to 
cast or to facilitate the casting of illegal votes with equal 
concern, because each illegal vote cancels a legal one.
    There are some who allege that voter fraud is not a serious 
problem in the American election process, and I would disagree 
with that. Documented cases of organized voter fraud in Miami, 
Philadelphia, East Chicago, Compton, Orange County and Fresno 
in our own State demonstrate this, and we cannot take the 
integrity of elections for granted.
    When the names of ineligible voters appear on the rolls, 
they create an opportunity and even an invitation for fraud, 
something that Secretary Bowen has commented about--the 
opportunity for fraud being a reason for more careful 
consideration of electronic voting systems.
    HAVA took some important steps toward improving the quality 
of voter registration lists and in ensuring that voter rolls 
are clean and accurate, but more needs to be done.
    I would suggest that Congress look especially at two key 
areas: first, the restrictions that NVRA imposes on States that 
want to promptly remove ineligible voters from the rolls and, 
second, the loopholes in both HAVA and NVRA that make it too 
easy for illegal aliens and other noncitizens to register.
    With regard to NVRA, I would urge Congress to remove the 
unwise restrictions imposed by the law which make it 
extraordinarily difficult to remove voters who have failed to 
vote in two or more Federal elections and who have not 
responded to numerous inquiries from election officials, 
allowing States with proper notice to remove such voters who 
have not voted or who have not responded to notices in 4 years, 
covering two Federal elections. It would remove a dangerous 
potential source of deadwood from the voter rolls.
    With regard to voting by illegal aliens, there are also a 
couple of common-sense reforms. First, State agencies should be 
able to ask applicants for services if those applicants are 
citizens before offering them a voter registration card. NVRA 
now prohibits agencies from doing this. HAVA ought to be 
strengthened to make it absolutely clear that, when voters 
register, they must answer ``yes'' to the citizenship question. 
Any doubt about a nonresponsive answer with nothing filled in 
should not be resolved in favor of a voter who has signed a 
registration affidavit without answering that question.
    Now, these are just a few of the examples of things that I 
think can be done to improve the quality of voter lists. The 
integrity of the election process is at stake, and I would hope 
there would be some bipartisan agreement on the importance of 
these essential things: keeping the voter rolls free of illegal 
aliens and the names of those who are no longer legally 
registered to vote.
    Thank you.
    [The statement of Mr. Bell follows:]

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    Ms. Lofgren. Thank you very much for your testimony.
    We will close this panel with Ms. Mitchell's testimony.

                  STATEMENT OF CLETA MITCHELL

    Ms. Mitchell. Thank you, Madam Chairman. I am pleased to be 
here and to have the opportunity to speak to you today.
    I would open with one very basic question. Why do some 
people in organizations in this country so resent and so 
forcefully object to efforts to ensure the integrity of our 
voting procedures?
    Ensuring our voting systems are secure and that only 
legally eligible voters cast ballots and that every legally 
cast ballot is counted to the highest degree of certainty and 
accuracy is the goal of every Republican organization and 
conservative group that I work with--every candidate, in every 
conversation. I have never been in a conversation with any 
Republican attorneys or candidates or campaign operatives who 
ever said, ``Let's figure out how to keep minorities from 
voting.'' It simply does not happen.
    Our goal is to ensure that our voting systems are secure, 
that only legally eligible voters cast ballots and that every 
legally cast ballot is counted. But there is an industry that 
has arisen in this country over the past decade which is 
determined to convince all of us that there is no voter fraud. 
So, if there is no voter fraud, then, of course, we have to 
make sure that there are no protections in place, and we have 
to make sure that there are no observers and no safeguards, 
because if there is no voter fraud, then we do not need all of 
these things, right?
    Well, personally, I am tired of the professional vote-
fraud-deniers industry that has arisen, because their view is: 
There is no vote fraud; therefore, anybody who says there is 
vote fraud and who tries to take steps to protect against it 
must be, of course, a racist.
    I am not a racist. I am not out here to talk about 
protecting the integrity of the voting system because I am a 
racist. Because it simply is not true, nor is it true of all of 
the people who I work with, who are honorable people and who 
want to protect the integrity of the voting system.
    When they say there is no vote fraud, let me give you some 
examples.
    Headline, October 30, 2007, the Seattle Times: ``three 
Plead Guilty in Fake Voter Scheme. The prosecutors in King 
County, Washington, are in the process of sending people to 
jail for what they call the most massive voter registration 
fraud scheme in King County history.''
    From the Monroe Free Press, Monroe, Louisiana, November 
5th, just 2 weeks ago: ``Were Votes Bought with Toilet Tissue 
and Vanilla Wafers? The Louisiana Ethics Commission is 
investigating allegations of vote buying, stemming from the 
Statewide elections held last month. The candidates were all 
African American.''
    I talked to my daughter this morning, who graduated from 
the University of Pennsylvania last May, and she reminded me 
when I told her what I was doing today that, a year ago this 
month, she had been an observer at a Philadelphia polling 
place. She was a volunteer Republican observer. They sent her 
to a largely Hispanic minority voting place, not because the 
Republicans were racist but because my daughter is fluent in 
Spanish.
    During the course of the time when she was there, she just 
rattled off the things she witnessed--people tampering with the 
voting machines, people who were not the election officials who 
were going behind and tampering with the voting machines after 
voting had begun, people distributing partisan literature 
inside the polling place.
    When she, as she was supposed to do, objected and told the 
election officials that they are not supposed to be here 
deliberating passing out this literature, she was told, ``We 
don't want any Republicans here in this precinct. We all vote 
Democratic in this precinct. So why don't you just leave?''
    There were able-bodied people walking in, going directly to 
the disabled voting table, saying that they were disabled so 
that somebody could go with them into the polling place and 
could tell them how to vote.
    All of these things are not--people say, ``Well, that is 
just anecdotal evidence.'' Well, anecdotes of breaking the law 
are still instances of illegal voting activity.
    I could go on and on with instances of voting fraud, but 
what I am here today to ask is, why is it that we should have 
this debate about whether vote fraud exists?
    One of the things that I think I would most like to say, as 
a point of personal privilege, is that I have read the written 
testimony of one of the other witnesses. I want to personally 
go on record here today as saying that the efforts by this 
professional vote-fraud-deniers industry to attack and to 
malign Commissioner Hans von Spakovsky, formerly of the Justice 
Department, now the Commissioner of the Federal Election 
Commission, I find to be outrageous. Hans von Spakovsky is an 
honorable, decent man, and the attacks on his integrity, the 
aspersions cast on his character by people with whom he 
disagrees philosophically should not be tolerated.
    During the Clinton administration, the Justice Department 
was ordered to pay over $4 million in attorney fees for 
groundless, baseless cases that had been brought by the Justice 
Department. Now, none of that has been discussed publicly. Hans 
von Spakovsky--during the time when he was at the Justice 
Department, none of those kinds of cases were brought and did 
not happen. Well, his sin was to object to career people's 
being able to bring cases based on their philosophy and not the 
law.
    Thank you.
    [The statement of Ms. Mitchell follows:]

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    Ms. Lofgren. Thank you all for your testimony.
    Since this is the minority panel, I will turn now to our 
ranking member, Mr. McCarthy, for his 5 minutes of questions.
    Mr. McCarthy. Well, thank you, Madam Chair.
    I want to thank all of the witnesses on this panel and the 
next panel.
    Even though this is known as the minority witness day, I 
was happy to approve the other panel to come as well. This is 
what I believe it should be, and I know Madam Chair personally 
approved and changed the ratio on the last hearing. I want to 
thank you for that.
    If I could get to questions, Mr. Leiendecker, you had 
mentioned in your statement 1,500 voter registrations. You 
talked about an organization called ACORN. What followed 
through on that? Was there any prosecution? Was anybody found 
guilty?
    Mr. Leiendecker. I am guessing you are referring to 2003.
    Mr. McCarthy. Yes.
    Mr. Leiendecker. Is this the time?
    Mr. McCarthy. I think you said--yes.
    Mr. Leiendecker. There were two that I mentioned. One was 
in 2003 that that happened, and the other one was just recently 
in the 2006 November election.
    In 2003, nothing at all happened to the individuals. There 
was an investigation. I was not there at the time, but I have 
talked with individuals in the office. What ultimately happened 
was the information was sent over to the prosecutor's office, 
and the prosecutor's office did not do anything.
    This last time in 2006, right before the November election, 
there was roughly 4,000 or 5,000 cards that we deemed as 
problems. What happened was the Justice Department came in and 
subpoenaed them and took them. It is, to my knowledge--and I 
talked with them about 2 weeks ago--that it is still under 
investigation, and we will be hearing something very shortly of 
indictments, I would say.
    Mr. McCarthy. So this is something that continues from 
election to election, where you are finding this fraud?
    Mr. Leiendecker. We have an ongoing problem. I don't know 
how it is with other jurisdictions with this group, but, you 
know, it was very frustrating to me, because, right before the 
November election, we tried to right this wrong and make sure 
that, you know, as to everybody who may have slipped through 
the cracks, that they were going to get the right to vote. And 
everybody did get the right to vote.
    The problem that we ran into with them was that they 
started pointing the finger back at us and saying, ``You guys 
are the problem. You are trying to just minimize individuals 
voting, and you are the problem,'' basically. It was not true.
    After the November election, there was a Post-Dispatch 
article in which one of the heads of ACORN came in and said, 
``Well, maybe they were a little right on this.'' They were not 
necessarily sorry, but they said that their organization in St. 
Louis was the worst that they have ever seen.
    Mr. McCarthy. Now, Mr. O'Neal, you talked about ACORN. You 
made some statement of 5,000 registrations, 1,000 of them 
seriously flawed, that 213 had Social Security numbers that 
were not theirs; they were those of deceased people.
    So you are witnessing the same concern?
    Mr. O'Neal. Yes, sir.
    Mr. McCarthy. Maybe you could elaborate on that, as well.
    Mr. O'Neal. Well, what we experienced was, apparently, some 
task forces, some of which belonged to ACORN and some of which 
apparently were part of other organizations that came in and 
went to various places throughout the city, particularly to 
college campuses, and they attempted to register people to 
vote, but they did so without really checking to make sure that 
the people there signing up really were qualified to vote.
    We would contact, for instance, these felons, and the 
felons would say, ``Well, they told us not to worry about 
checking that block; it didn't matter.'' Then, subsequently, 
somebody apparently went in and checked the block for them, 
saying they were not a felon. Well, of course, we caught up 
with that. We do look at these things very closely.
    Mr. McCarthy. Now, Mr. Bell, you brought up some--and I 
know your background personally. We have a personal 
relationship. I know we have talked about races and seeing 
problems throughout. We know personal witnesses have seen 
problems through there.
    Could you talk about ways in which we might be able to 
change this in a bipartisan manner, about the citizen box not 
even being checked? Why would somebody not check whether they 
were a citizen or not if they were?
    Mr. Bell. Well, there is not a lot of evidence on that, 
court cases or testimony, of people who failed to check the 
box. I believe, during the Dornan-Sanchez investigation, there 
was a pretty thorough investigation of a number of votes that 
were illegally cast in that congressional race.
    Mr. McCarthy. I think that number was in the 600s, was it 
not?
    Mr. Bell. Well, I think it was in the low thousands of 
people who--650 were identified as actually being illegal, 
noncitizens, who voted in that election. Over 1,000 were people 
who did not check the box on their voter registration 
affidavits.
    Mr. McCarthy. Now, you say one thing that maybe we can do--
and maybe we can do this, Madam Chair, in a bipartisan manner. 
If we just made everybody answer that question, that could 
clean up a lot within the rolls.
    Maybe if I could just quickly go down the line, because my 
time is up. Would you agree with that, if we just made 
everybody answer the question of whether they are a citizen or 
not?
    Mr. Bell. I think it is very important.
    Mr. McCarthy. Could I ask each witness really quickly if 
they agree with that?
    Ms. Lofgren. The gentleman is given an additional minute so 
that the witnesses can answer.
    Mr. McCarthy. Thank you.
    Ms. Mitchell. Well, I do not want the Federal Government to 
take over the decisions about voter registration any more than 
they already have. I think every State should require that that 
be done, yes.
    Mr. McCarthy. Mr. O'Neal.
    Mr. O'Neal. Yes, I agree completely that that would help.
    Mr. Leiendecker. I would agree.
    Mr. McCarthy. Thank you very much, Madam Chair.
    Ms. Lofgren. The gentleman's time has expired.
    I, without objection, will enter into the record a letter 
that has been provided to the committee from the Secretary of 
State's office in Missouri to you, Mr. Leiendecker, and to Mary 
Wheeler-Jones, dated October 30, 2006.
    [The information follows:]

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    Ms. Lofgren. I would just simply note that this letter from 
Betsy Byers and Kay Dinolfo, who were co-directors of 
elections, points out that the steps that you outlined in your 
letter are additional registration requirements in violation of 
Missouri law. And they cite the section of the Constitution and 
also indicate that your actions may also have been in violation 
of Federal election laws.
    That goes into the record.
    At this point, we would thank the panel for their----
    Mr. Leiendecker. May I respond to that?
    Ms. Lofgren. No. You had 5 minutes of testimony. She is 
responding to your testimony, and we are just putting it in the 
record, and people will sort it out.
    Well, now, I thank these witnesses, and I will ask the next 
panel to come forward.
    As the witnesses are coming forward, I will introduce them.
    We have Joseph Rich. Mr. Rich is the director of Fair 
Housing and Community Development, the Lawyers' Committee for 
Civil Rights Under Law. Before joining the Lawyers' Committee 
in 2005, Mr. Rich spent his career in the Department of 
Justice's Civil Rights Division, where he litigated and 
supervised civil rights cases. In addition, from 1999 to 2005, 
Mr. Rich served as the chief of the Voting Section, where, in 
2004, he directed and coordinated the most extensive election 
monitoring program in the history of the Civil Rights Division, 
involving coverage of 86 jurisdictions and election monitoring 
by over 1,000 Federal employees. Mr. Rich received his J.D. 
degree cum laude from the University of Michigan Law School and 
his bachelor's in history from Yale.
    Next, we have Gerald Hebert. For the past 10 years, Mr. 
Hebert has had an active Federal court litigation practice, 
specializing in redistricting and in voter rights issues. Over 
the last 3 decades, he has served as legal counsel for parties 
and amici curiae in numerous redistricting lawsuits, including 
several cases decided in the Supreme Court of the United 
States. Prior to his time in solo private practice, Mr. Hebert 
served in the Department of Justice from 1973 to 1994 in many 
supervisory capacities, including acting chief, deputy chief 
and special litigation counsel in the Voting Section of the 
Civil Rights Division.
    Finally, we have Elizabeth Westfall. Ms. Westfall is the 
senior attorney and deputy director of The Advancement 
Project's Voter Protection Program. In this capacity, Ms. 
Westfall litigates voting rights cases on behalf of voter 
registration organizations and individual voters. She also 
engages in advocacy with election officials on various voter 
registration and other election administration issues. Ms. 
Westfall joined The Advancement Project after serving as a 
civil rights litigator in private practice and with the 
Washington Lawyers' Committee for Civil Rights and Urban 
Affairs. She received her law degree from Harvard Law School 
and her undergraduate degree from Carleton College.
    We do thank you for being with us this morning.
    We will start with you.
    I think you heard the instructions with the first panel. 
Your entire statements will be made part of the official 
record. We do ask that your testimony consume 5 minutes. And 
when your 5 minutes are up, the red light will be on, and we 
will ask you to complete your sentence so we can hear the next 
witness.
    We will start with you, Mr. Rich.

  STATEMENTS OF MR. JOSEPH RICH, FORMER CHIEF, DEPARTMENT OF 
  JUSTICE VOTING RIGHTS SECTION; MR. J. GERALD HEBERT, FORMER 
  ACTING CHIEF, DEPUTY CHIEF AND SPECIAL LITIGATION COUNSEL, 
  DEPARTMENT OF JUSTICE VOTING RIGHTS SECTION; MS. ELIZABETH 
WESTFALL, DEPUTY DIRECTOR OF VOTER PROTECTION, THE ADVANCEMENT 
                            PROJECT

                    STATEMENT OF JOSEPH RICH

    Mr. Rich. Thank you very much, Madam Chairman.
    I was asked to address the issue of vote caging, and I very 
much appreciate the opportunity to state my views on this 
subject.
    Vote caging is defined in various ways, but the one I am 
using is in a ballot security report from 2004, which states 
``challenging voters using inaccurate, unofficial lists of 
registrants derived from do-not-forward letters sent to low-
income and minority neighborhoods.'' And these are letters that 
are not sent by election officials. These are letters that are 
sent by organizations or party organizations. Targeted at 
traditionally disenfranchised voters, this practice relies on 
voter challenge laws to indiscriminately question the ability 
of eligible voters to cast a ballot.
    While purported to be designed to fight voter fraud, caging 
is really a quite cynical way to undermine the most fundamental 
right of all Americans for partisan gain. The reason it really 
cannot be justified as a fight against voter fraud is it is 
targeted. The lists are targeted at predominantly minority 
areas. These activities have the effect of discouraging voters 
who are challenged, as the challenge process is cumbersome and 
time-consuming. They also may cause delays in lines, further 
lowering the number of persons who vote.
    And, of course, especially alarming is the targeting of 
minority voters. Indeed, in 2004, one State representative in 
Michigan was quoted as saying, ``If we do not suppress the 
Detroit vote,'' which was over 80 percent African American, 
``we are going to have a tough time in this election.''
    My written testimony focuses on the increased uses of this 
technique in recent years, which is well-documented in four 
studies that I discuss in the written testimony. The practice 
has grown significantly in recent years. Just a few weeks ago, 
the registration eligibility of over 900 students at Georgia 
Southern University was challenged by local residents in 
Georgia--Statesboro, Georgia. Despite a requirement under 
Georgia law that required personal knowledge in order to file a 
challenge, each of the forms used in this challenge were 
identical, save for the name of the challenged voters. The 
Voting Rights Project at the Lawyers' Committee investigated 
and monitored the situation closely. Just a few days ago, the 
challenges were dropped under threat of litigation from the 
Lawyers' Committee.
    Many vote caging incidents came to the Voting Section's 
attention when I was chief of the section in 2004. They 
included threatened challenges to voters at predominantly 
African American precincts in Duval County and Louisville, 
Kentucky, and to Hispanic voters in Alamance County, North 
Carolina, Atkinson and Long Counties, Georgia. In each 
instance, they were investigated, and monitors were present at 
the polls on Election Day. The challenge plans were 
successfully addressed because the schemes had been made 
public, and the Department of Justice as well as other 
interested national groups took strong, responsive action.
    However, with respect to the most extensive voter caging 
program in 2004 in Ohio, the Department's response was limited 
and appeared to be politically tinged. According to a Project 
Vote report, there were over 232,000 letters sent to newly 
registered voters by the Republican Party and around 30,000 
returned as undeliverable. Lists of returned mail to election 
officials were used to supplement the list, and in the end, 
there were over 35,000 voters on these lists.
    Extensive litigation resulted from this. In one of the vote 
caging cases, Spencer v. Blackwell in Ohio, the case was 
brought just before the election. The Democratic Party sought 
to enjoin any new challenges of voters in Hamilton County. The 
court found that the challenges would be of 97 percent of 
African American voters, newly registered voters, while only 14 
percent of new voters in white precincts would face a 
challenge. This is the court's finding. In other words, it was 
the classic and especially extensive vote caging scheme 
targeted at minority voters.
    The United States was not a party to this case, but 
nonetheless, it took the unusual step of sending the court a 
letter right before the hearing of October 29th, a letter 
drafted and submitted to the court by the political appointees 
in the division, with no knowledge, much less any input, from 
the Voting Section career staff.
    Ms. Lofgren. Mr. Rich, your time has expired, so if you 
could conclude.
    Mr. Rich. Okay. I will just finish up on this particular 
incident.
    Although the case raised serious claims of race 
discrimination, the letter by the then-Assistant Attorney 
General inexplicably did not address race, and urged that the 
challenges be permitted.
    [The statement of Mr. Rich follows:]

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    Ms. Lofgren. Thank you.
    Mr. Hebert.

                   STATEMENT OF GERALD HEBERT

    Mr. Hebert. Thank you, Madam Chairman. I would like to 
thank Mr. McCarthy for permitting us to testify as well, so 
thank you both.
    My name is Gerald Hebert. I am the executive director of 
the Campaign Legal Center. I am also the director of litigation 
there. I am here to talk about a couple of issues today. I 
would like to talk about the voter fraud statements that were 
made in the earlier panel and respond to some of that. I would 
also like to make a point about the Ohio situation that Mr. 
Rich just described, because the Ohio defense of vote caging by 
the Justice Department was not only unprecedented, it was 
actually contrary to the position that the Justice Department 
took a decade earlier when I was there.
    We actually filed a lawsuit against the Jesse Helms for 
Senate Reelection Committee, which engaged in a similar kind of 
voter intimidation effort, but the Justice Department under 
this administration did not do so. In fact, they came to the 
defense of vote caging, as Mr. Rich just pointed out. They were 
led by attorney Hans von Spakovsky, whose name came up earlier 
today, and by Brad Schlozman, who has now resigned from the 
Justice Department. They are men who have been called in front 
of Congress to testify about partisanship and law enforcement 
in the Justice Department, which is continuing there and needs 
to be cleaned up by the new Attorney General.
    It is, I think, fair to say, in responding to Ms. Mitchell 
in particular, that it is not just Gerry Hebert who is 
complaining about Mr. von Spakovsky's record of suppressing 
minority votes. It is Senator Obama, who has written a letter; 
it is the civil rights community that has written letters, and 
even Mr. Rich and other former career Justice Department 
officials.
    I want to talk briefly about the voter fraud issue. You 
know, you hear a lot of repeated references to this so-called 
``epidemic'' of voter fraud. Some, like Mr. O'Neal, for 
example, propose that there should be photo IDs mandated for 
everybody so that, you know, we can stamp out this epidemic. 
But photo IDs only address a single type of alleged voter 
fraud, the impersonation of a registered voter at the polls. It 
does not address the more common types of voter fraud such as 
voting by absentee ballot or vote buying, nor does it address 
the voting by ineligible persons with felony convictions or 
double voting at two different addresses, which can only be 
addressed through the updating of a voter registration list. In 
my view, the effective maintenance of voter registration lists 
by the States are the best means of combating this problem.
    And I would note that the most comprehensive study done on 
this subject, by Professors Minnite and Callahan, indicates 
that this alleged epidemic of voter fraud is not an epidemic at 
all. In fact, instances of in-person voter fraud are rare, 
indeed.
    You may know that there is a case pending in the Supreme 
Court right now involving a challenge to Indiana's voter ID 
law. Now, voter IDs are supposed to stop the impersonation of 
people at the polls according to the State of Indiana. Well, 
how many people have actually been prosecuted for in-person 
voting fraud in the State of Indiana that justifies this photo 
ID? The answer is zero. A study that has been done shows that 
the people who lack IDs are particularly the elderly and the 
young and the low-income and the poor.
    So what is outrageous--Ms. Mitchell, in her comments, said 
it was outrageous to criticize people who suppress the minority 
vote. What is really outrageous is apologists for people who do 
suppress minority voting rights in this country.
    Now, finally, a word on the NVRA, since I have a minute and 
a half left. I would like to just make a couple of points about 
the DOJ. The Justice Department has unfortunately used the 
National Voter Registration Act as a partisan tool rather than 
as a legitimate law enforcement tool to get people registered 
to vote. That was the purpose of the NVRA, the so-called 
``Motor Voter Bill.'' Instead of actually pursuing cases in 
States for failing to register people at public assistance 
agencies, they instead have gone and taken that part of the law 
that requires people to purge voters. And under von Spakovsky, 
Schlozman and others, that was their priority.
    Mr. Rich has submitted a statement to the Senate detailing 
this issue regarding von Spakovsky's actually not permitting 
the Justice Department to really investigate claims that 
people's voting rights are being suppressed and that States are 
not following through on their NVRA obligations. Instead, von 
Spakovsky treated his office more like the Republican National 
Committee's General Counsel's Office and only enforced the law 
when it saw fit to advance partisan gains.
    Now, oversight hearings like this are really critical, 
though, and I just want to close with this point, because what 
they really do--when you shine a spotlight on the Justice 
Department, it sometimes forces them to act, and I think it is 
starting to make a break in their politicization. For example, 
they just sent letters to 18 States, they say, on this issue of 
public assistance agencies not registering people to vote, and 
that is a good thing. If there is one thing we can all agree 
on, it is that the voting rights of all Americans, especially 
those who are poor and of low income, deserve vigorous 
protection.
    Thank you very much.
    [The statement of Mr. Hebert follows:]

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    Ms. Lofgren. Thank you, Mr. Hebert, for your testimony. Ms. 
Westfall, we will close with you.

                STATEMENT OF ELIZABETH WESTFALL

    Ms. Westfall. Thank you. On behalf of The Advancement 
Project, I would like to thank you, Chairwoman Lofgren and Mr. 
McCarthy, for inviting me to testify today.
    I would like to follow up on the remarks of one of my co-
panelists concerning voter caging and Advancement Project's 
involvement in litigation in 2004 in Ohio, concerning voter 
caging.
    As well, if I have time, I would like to respond to some of 
the comments of Mr. O'Neal concerning the matching of an 
applicant's information on his or her application with 
information in the Social Security Administration's database, 
which is riddled with errors.
    In the months leading up to the 2004 presidential election, 
voter protection advocates, including The Advancement Project, 
became concerned that a large-scale effort would be undertaken 
to challenge the eligibility of African American and Latino 
voters. Advocates' fears were realized in Ohio, among other 
States, when, in October, the Ohio Republican Party compiled a 
list of 35,000 newly registered Ohio voters through voter 
caging and filed challenges against those voter registrations. 
Local election officials told our voter protection partners in 
Ohio that these challenges were overwhelming and could cause 
chaos at the polls and could disenfranchise thousands of voters 
on Election Day.
    Four days before the 2004 presidential election, The 
Advancement Project filed a motion to intervene and to reopen a 
case styled ``DNC v. RNC'' on behalf of an Ohio voter named 
Ebony Malone. Ms. Malone was a newly registered African 
American citizen of Cleveland who was on the list of voters to 
be challenged by the Ohio Republican Party. The DNC v. RNC case 
had been filed in 1981 in Federal court in New Jersey to 
challenge the RNC's voter caging in that State.
    The case resulted in a consent decree that requires the RNC 
nationwide to refrain from engaging in so-called ``ballot 
security activities'' where the racial composition of the 
polling place or election district is at issue and is a factor 
in the decision to conduct such activities. In 1987, the 
consent decree was modified based on further voter caging that 
the RNC had employed in Louisiana to require the RNC to obtain 
prior approval from the court of all ballot security efforts.
    In 2004, the district court in the DNC case granted Ms. 
Malone's, our client's, motion to intervene. On November 1st, 
one day before the election, it found the RNC had violated the 
consent decree and that it had, in fact, been involved in and 
connected to and had coordinated, in part, the Ohio caging 
activities. Further, the court ordered the RNC to refrain from 
using its compiled list of voters to challenge those voters on 
Election Day. Although the Court of Appeals granted the RNC's 
motion to stay, that order was not issued until late in the day 
on Election Day, so the district court's ruling, in addition to 
rulings in other cases, contributed to the absence of 
challenges in Ohio on Election Day. Ms. Malone, I am happy to 
report, successfully cast her ballot without being challenged.
    The Advancement Project recommends that Congress enact 
legislation to prohibit voter caging and voter challenges by 
private citizens outright. At a minimum, Congress should enact 
legislation that prohibits challenges to a person's eligibility 
to register to vote or to cast a ballot based solely on 
returned mail or a caging list. Further, it should require that 
challengers base their challenges on personal knowledge, and 
they should set forth specific grounds for their purported 
ineligibility under penalty of perjury. Finally, Congress 
should prohibit partisan poll watchers from challenging voters 
at the polls on Election Day.
    With my remaining time, I would like to respond to the 
comments of Mr. O'Neal, that there were applicants who 
submitted applications in Norfolk, Virginia, in 2005 that did 
not match the Social Security database. I would like to bring 
to the subcommittee's attention that the Social Security 
database is riddled with errors, and for any number of reasons, 
information that an applicant puts on an application may not 
match data in the Social Security Administration. It may be 
wholly unrelated to their eligibility. Advancement Project and 
the Brennan Center and other counsel are involved in litigation 
against the Secretary of State of Florida for refusing to 
register applicants for that reason.
    For example, typos can be made from entering that person's 
data into a Statewide database. Women may use their married 
names instead of their maiden names, which are listed in the 
Social Security database. And of course, hyphenated names and 
the use of double names by Latino applicants, in particular, 
can cause mismatches with the database.
    We have found in discovery in that case that this rule, 
Florida's statute, disproportionately impacts African 
Americans, who often have nontraditional spellings of common 
names, as well as Latino voters.
    [The statement of Ms. Westfall follows:]

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    Ms. Lofgren. Thank you for that testimony.
    And thanks to all of the witnesses for your testimony.
    Mr. McCarthy, would you like to proceed?
    Mr. McCarthy. No. Go ahead.
    Ms. Lofgren. Okay. Fine. I will go first.
    I would like to talk about the 1981 Federal ruling--I guess 
it is a consent decree--that prohibits the Republican National 
Committee from engaging in racially based caging activity. That 
ruling does not apply to State parties. So, in order to get 
this law enforced, you would have to prove a connection between 
the RNC and the State parties.
    Is that not correct, Ms. Westfall?
    Ms. Westfall. That is correct. That is a position--the RNC 
is the one that is bound by----
    Ms. Lofgren. Do you think there is a need to expand that 
ruling to State parties?
    Ms. Westfall. Certainly. The State parties are not parties 
to the consent decree, so you do, as a plaintiff, need to 
establish a connection and a role that the RNC has played in 
the caging if you are to apply that case to the activities of 
the State parties. That is correct.
    Ms. Lofgren. I just want to note that, in addition to 
serving on the House Administration Committee, I serve on the 
House Judiciary Committee. Earlier this year, we had Ms. Monica 
Goodling appear as a witness before the committee. During the 
course of that testimony, she talked about vote caging and the 
activities of various lawyers in the Justice Department, but 
not on company time, to engage in the vote caging of African 
American voters. I mean, I remember sitting there, receiving 
this testimony, and asking other members of the committee, 
``What is `vote caging?' '' none of us knew, and none of the 
staff knew. I mean, it was a new concept to me.
    Would it be true that it would include activities, for 
example, Mr. Hebert, where you would send, for example, a 
registered letter where you would have to sign to get your 
letter, and then if it got returned, you would use that as a 
basis for challenging a voter?
    Mr. Hebert. That is typically the way it works. You send 
out nonforwardable mail, and then, from the letters that come 
back, you compile a list.
    Ms. Lofgren. So if you were at work and you were not there 
to sign--I mean, lots of times people don't go down to the post 
office. They just aren't there to sign it, and they don't fill 
it out. They don't know what it is, and they didn't sign--you 
know, there is nothing coming from Amazon that they want. And 
so you could end up with people who are perfectly legitimate, 
and you could come to a wrong conclusion on the basis of that, 
could you not?
    Mr. Hebert. You could. The reason that it is most 
offensive, I think, is because, first of all, you are targeting 
a particular racial or ethnic group with your letters. That is 
problem number one.
    Problem number two we saw, for example, in Jacksonville, 
Florida. A lot of the people who did not have forwardable mail 
were people who were overseas, fighting for the freedom of our 
country, and so their mail was not forwarded to them. So, you 
know, to disenfranchise somebody who is putting their life on 
the line every day in the name of vote caging to suppress 
somebody's voting rights I think is un-American, frankly.
    Ms. Lofgren. Mr. Hebert, in looking at your bio, you joined 
the Department of Justice when Richard Nixon was President.
    Mr. Hebert. That is correct.
    Ms. Lofgren. You served under President Nixon, President 
Ford, President Carter, President Reagan, the first President 
Bush, President Clinton, and you are an observer of what is 
going on now.
    Have you seen anything like this in other administrations, 
where the Department of Justice has apparently proceeded on the 
basis of partisanship in election laws?
    Mr. Hebert. No. In fact, I was proud during the Reagan 
years, in particular, when the civil rights organizations made 
a lot of criticisms about the Reagan administration's lack of 
enforcement of civil rights. Even in all of those years, there 
was not a partisan tinge to our law enforcement from the 
highest levels on down, whether it was Ed Meese as Attorney 
General or William French Smith or Dick Thornburgh, any of 
those Republican Attorneys General. They never let, to my 
knowledge, partisanship be the guidepost.
    Ms. Lofgren. I would ask you, Mr. Rich, you were a career 
person in the Department of Justice. Would you share Mr. 
Hebert's view?
    Mr. Rich. Yes. I have testified and have spoken about this 
on several occasions. The difference between this 
administration and any other I served were the partisan factors 
that entered law enforcement decisions, which I had never seen 
before. I gave you an example in the Ohio case, which dealt 
with vote caging, but I have testified to several other 
examples that arose in, particularly, Section 5 decision-making 
in the Voting Section when I was there.
    Ms. Lofgren. Well, I thank the witnesses for this 
testimony.
    And I will turn now to our ranking member, Mr. McCarthy, 
for his 5 minutes.
    Mr. McCarthy. Well, I want to thank the panel. I appreciate 
your coming.
    One thing I will tell you from both sides of the aisle is 
that we want to gather all of the information. If you have a 
different philosophical belief, that is fine, but the thing I 
believe is, regardless of whether you are a Republican or a 
Democratic, of the Green Party or are an independent, we want 
to make sure we have honest elections, fair elections. We want 
to make sure the voters have the right to vote.
    We have come a long way. We have absentee balloting. We 
have early voting. We have others. We know, as we move to that 
direction and make it easier for individuals to vote--and we 
watch these other countries where people will stand in line for 
hours and will walk to their polling places and will turn out 
in such greater numbers than Americans will do. We want to make 
sure, as you set this up and make it easier for people, that we 
keep them honest.
    I mean, I have had witnesses here who will tell me they 
disagree, and they will go through different things. The 
Secretary of State says we know we have fraud every time. We 
have Secretaries of State from small States who do not even ask 
for signatures when they vote by absentee. They say, ``Well, we 
trust everybody. We know everybody.''
    I think the one thing that binds us is our making sure that 
at the end of that Election Day that democracy worked, that we 
do not have fraud in the system, and that we allowed people to 
go to it as well. That is why I believe it is best to have 
these two panels. That is how I think Congress should work. 
That is how I think this committee should work.
    So I applaud you for coming, and I thank you for your 
testimony.
    Ms. Lofgren. With that, we will note that we have 5 
legislative days to ask additional questions. If questions are 
proposed, we will forward them to you. The Chair will forward 
them to you. We will ask that you respond as promptly as 
possible. And that would also be for the first panel of 
witnesses.
    We do thank you for your testimony. A lot of people do not 
realize that our witnesses are volunteers and that you come 
here to help share your insight with the committee to make a 
better country, and we do appreciate that.
    Mr. McCarthy. Madam Chair, if I may, I just have a letter I 
would like to submit here for the record. If I could ask for 
unanimous consent to have 5 days that members could submit 
additional----
    Ms. Lofgren. That is part of the rules. Without objection, 
the letter is made part of the record.
    [The information follows:]

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    Ms. Lofgren. This hearing is adjourned.
    [Whereupon, at 10:58 a.m., the subcommittee was adjourned.]
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