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




        OVERSIGHT HEARING ON THE ELECTION ASSISTANCE COMMISSION

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON ELECTIONS

                           COMMITTEE ON HOUSE
                             ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                 HELD IN WASHINGTON, DC, MARCH 12, 2008

                               ----------                              

                       Printed for the use of the
                   Committee on House Administration


                       Available on the Internet:
   http://www.gpoaccess.gov/congress/house/administration/index.html













        OVERSIGHT HEARING ON THE ELECTION ASSISTANCE COMMISSION

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON ELECTIONS


                           COMMITTEE ON HOUSE

                             ADMINISTRATION

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                 HELD IN WASHINGTON, DC, MARCH 12, 2008

                               __________

                       Printed for the use of the
                   Committee on House Administration


                       Available on the Internet:
   http://www.gpoaccess.gov/congress/house/administration/index.html



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                    COMMITTEE ON HOUSE ADMINSTRATION

                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













 
        OVERSIGHT HEARING ON THE ELECTION ASSISTANCE COMMISSION

                              ----------                              


                       WEDNESDAY, MARCH 12, 2008

                  House of Representatives,
                         Subcommittee on Elections,
                         Committee on House Administration,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 3 p.m., in room 
1310, Longworth House Office Building, Hon. Zoe Lofgren 
(chairwoman of the subcommittee) presiding.
    Present: Representatives Lofgren, Gonzalez, Davis of 
California, Davis of Alabama, McCarthy, and Ehlers.
    Staff Present: Liz Birnbaum, Staff Director; Charles T. 
Howell, Chief Counsel; 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, Legislative Assistant, Elections; Matthew 
DeFreitas, Staff Assistant; Gineen Beach, Minority Election 
Counsel; Bryan T. Dorsey, Minority Professional Staff; and 
Ashley Stow, Minority Election Counsel.
    Ms. Lofgren. Good afternoon, and welcome to the 
Subcommittee on Election's oversight hearing on the Elections 
Assistance Commission. The purpose of the hearing will be to 
examine what the EAC has done to improve its policies and 
procedures since our first hearing last August and what the EAC 
has planned, leading up to the 2008 general elections.
    The EAC has been operational for 5 years. However, it is 
still having difficulties becoming a fully functioning agency. 
Although the EAC has made changes since our last oversight 
hearing, recent reports by the agency's Inspector General are 
cause for concern. As we will learn today, the IG found that 
the EAC lacks policies and procedures in all program areas, 
from document, governance and accountability, short- and long-
term strategic plans and performance goals to a clearly defined 
organizational structure. Additional reports also cite 
improvements needed in the management of travel expenses.
    Today we will also have the opportunity to discuss the 
just-released IG investigative report on the preparation of the 
voter fraud and intimidation report. This report was the 
subject of much interest, both by the public and this 
committee. I appreciate the time and effort that went into the 
report that we received today and that the initial request for 
the investigation came from the EAC commissioners themselves.
    While the investigation does not reveal that any political 
motivation was behind the changes and delayed release of the 
report, it does disclose a poorly conceived and managed 
project. The investigation, coupled with the Inspector 
General's testimony, provides clear evidence of the 
Commission's lack of an effective organization and management 
structure.
    However, we are not here to simply discuss what is wrong 
with the EAC. We are to learn what corrective action the EAC 
has taken since our last hearing and the agency's plans for the 
future.
    The EAC has received recommendations for change from the IG 
and has taken some steps toward developing sound goals, 
objectives, plans, policies and procedures. And that should be 
acknowledged, and I do acknowledge it.
    Unfortunately, we must now discuss whether those changes 
are enough and what role the EAC is capable of playing, 
particularly in light of what could be a very highly charged 
2008 presidential election.
    So I look forward to hearing from our witness today, the IG 
as well as the commissioners. I thank them for being here, and 
look forward to seeing how we can work together to have a 
better system.
    At this point, I would turn to our ranking member, Mr. 
McCarthy, for his opening statement.
    [The statement of Ms. Lofgren follows:]


    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. McCarthy. Thank you, Madam Chair.
    I just appreciate this hearing. One, I guess it is rather 
timely now, with the IG report coming out, finding no evidence 
to support allegations that the charges were made to the report 
due to improper reasons or political motivation.
    And I know this committee or Madam Chair had a number of 
lettered concerns, so I want to make sure we give enough time 
to answer all the questions that we need to go forward and see 
where corrections need to be made but also see where 
allegations were not true, at the same time, to be known for 
the public as well.
    We have a lot of different questions to move forward, but I 
thank the Madam Chair for holding the hearing.
    Ms. Lofgren. I thank you, Mr. McCarthy.
    And we would now turn to Mr. Crider for your testimony. As 
you know, your full statement is made part of our official 
record. We would ask that your testimony consume about 5 
minutes so that the members can have time to pose questions to 
you. And, at this time, we would welcome your testimony.

  STATEMENT OF MR. CURTIS CRIDER, INSPECTOR GENERAL, ELECTION 
                     ASSISTANCE COMMISSION

    Mr. Crider. Thank you, ma'am.
    Chairman Lofgren, Ranking Member McCarthy, members of the 
committee, thank you for the opportunity to discuss the 
activities of the Office of Inspector General of the U.S. 
Election Assistance Commission.
    In its year and one-half of existence, the I.G. Office, 
which currently consists of me and a contractor, has 
concentrated on two areas: use of Help America Vote Act funds 
by States and the internal administrative operations of the 
Commission.
    In addition, the Office of Inspector General has completed 
two investigations. Investigations were performed for the EAC 
by the Office of Inspector General for the Department of the 
Interior.
    And I would like to publicly thank the Department of the 
Interior Office of Inspector General, in particular Mr. Earl 
Devaney, the Inspector General, for his help and support in the 
last year and a half, in terms of helping my office get 
established and get it up and running. His support has been 
invaluable.
    The focus of my testimony is on the internal operations of 
the Commission. Pertinent audits covered Commission travel and 
Commission program and financial controls. The relevant 
investigation dealt with voter fraud report.
    The audit of travel: The objective of the audit was to 
determine whether travel was performed in accordance with 
Federal travel regulations, travel cards were properly 
controlled and used for only official purposes, and travelers 
paid their bills in a timely fashion.
    The audit found that the Commission did not follow Federal 
travel regulations in performance of travel. The audit 
identified errors in 91 percent of the travel packages--that 
is, authorizations and vouchers--examined. While the majority 
of the errors were minor, such as claiming taxes as a part of 
the lodging rate, some were more significant, such as traveling 
to a location that was not authorized or claiming a lodging 
rate that exceeded the authorized rate.
    Overall, the mistakes demonstrated a need for independent 
controls and clear instruction on the preparation and approval 
of travel authorizations and vouchers, and for reviews of the 
accuracy of the travel charges.
    We also noted the need for procedures to ensure that 
international travel is essential to the EAC mission and 
employees receive compensatory time when traveling on their own 
time.
    Finally, we concluded that travel cards were adequately 
controlled and used for official purposes and that travelers 
generally paid their travel bills on time.
    We made four recommendations in July of 2007 to the 
Executive Director. One was to implement written procedures for 
conducting temporary duty travel; two, implement written 
procedures approval of international travel; modify the 
procedures for approval of travel funded by non-Federal 
sources; and implement written procedures for authorizing 
tracking of compensatory time.
    To date, none of the recommendations have been implemented. 
However, the Director of the Finance and Administration of the 
U.S. Election Assistance Commission has instituted an audit 
program of travel vouchers, where she reviews the travel 
vouchers and the authorizations to make sure that the travel 
charges are in accordance with the travel authorization and the 
claims are allowed by the Federal travel regulations. But there 
still is a lack of written policies and procedures.
    In addition, the EAC has provided travel training to its 
employees so that employees now know how to prepare travel 
vouchers. And I think those things have helped. But there still 
is a very strong need for written policies and procedures.
    The second review we did was assessment of the Commission's 
program and financial operations. The purpose of the review was 
to identify the programs and administrative activities 
performed by the Election Assistance Commission and to assess 
for those programs the vulnerability of fraud, waste and abuse 
and areas of mismanagement.
    This assessment identified a need to immediately address 
longstanding and overarching weaknesses related to Commission 
operations. Specifically, the assessment disclosed that the 
Commission lacked: short- and long-range strategic plans, 
performance goals and measurements to guide the organization 
and its staff; an organizational structure that clearly defines 
the areas of responsibility and an effective hierarchy for 
reporting, especially between the Commissioners and the 
Executive Director--the staff needs to know who is in charge, 
and that is still a recurring problem at the EAC; appropriate 
and effective internal controls need to be established based on 
risk assessments; and policies and procedures in all program 
areas to document governance and accountability structure and 
practices in place.
    The report made 29 recommendations to improve the EAC 
operations. In response, the Executive Director has developed 
an action plan with milestones to address the issues identified 
in the report. The OIG plans to meet with the Executive 
Director on a monthly basis to assess where they are at, in 
terms of the corrective action, and try to make sure that the 
milestones are, in fact, met.
    In terms of investigations, yesterday and today we issued 
the investigative report on the voter fraud report. In 
September 2005, the U.S. Election Assistance Commission hired 
two consultants to conduct a study on voter fraud and voter 
intimidation. In August of 2006, the consultants completed 
their work and provided it to the EAC for review. The EAC 
officials edited the report and publicly released a final 
version in December of 2006.
    Subsequent to the release, it was learned that the EAC 
final report differed from the consultants' report, causing 
speculation that the report had been changed due to political 
motivation and other improper reasons. The consultants' report 
read, ``There is a widespread but not unanimous agreement that 
there is little polling place fraud.'' The final version of the 
report, after editing by EAC officials, concluded in its 
executive summary that, ``There is a great deal of debate on 
the pervasiveness of fraud.'' When the difference was disclosed 
by the New York Times, the allegation was made that the 
Commission changed the report due to political reasons.
    We conducted the investigation at the request of Commission 
Chair Donetta Davidson, who asked for a review of the 
circumstances surrounding the voter fraud and voter 
intimidation research project. The investigation centered on 
four general areas: The hiring of the consultants, the 
consultant staff report, the changes to the draft report, and 
potential external influences on the report.
    Overall, the investigation found no evidence to support the 
allegation that changes to the report were made for improper 
reasons or for political reasons. Investigators did, however, 
disclose a poorly conceived and managed project. The 
investigation found there was confusion regarding the intended 
scope of the project, the intended use of the consultants' 
draft report. In addition, the investigators found the EAC 
officials reviewing the consultants' report believed that the 
report was poorly written and contained unsupported conclusions 
and, therefore, required substantial editing. This, coupled 
with the delays in the EAC beginning the editing process, 
caused the final report to be released 4 months after receiving 
the consultants' draft.
    The investigators also made the observation that the voting 
fraud project and issues related to voter fraud were a highly 
charged political issue, and that the decision to edit the 
report without including the consultants for input, along with 
their data produced in the final report, undoubtedly fueled 
speculations raised by the opponents of the final report.
    In conclusion, the Commission lacks an effective management 
organizational structure. What it has been able to accomplish, 
in my opinion, is due to the drive of individuals and not the 
organization. The Commission needs to make substantial 
improvements in its operations. The basic components for a 
good, sound organization--goals, objectives, plans, policies 
and procedures--still do not exist, despite 3 years of 
operation.
    Furthermore, it is imperative that the Commissioners define 
their roles and responsibilities and those of the Executive 
Director to ensure that management decisions are made in a 
consistent, timely and nonpartisan fashion.
    This concludes my testimony, and I would be happy to answer 
any questions.
    [The statement of Mr. Crider and the IG report follow:]



    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]



    
    Ms. Lofgren. Thank you very much, Mr. Crider.
    I would note that ordinarily we have a little red light 
that goes on when your time is up, and it is not functioning 
today. But you were very terse, and we appreciate that.
    We will now go to our 5 minutes of questions. I think I 
will, when we get close to our 5 minutes, I will do my gavel so 
members can know that they need to wrap up.
    And we will start first with my colleague from California, 
a member of the subcommittee, Congresswoman Susan Davis, for 5 
minutes.
    Mrs. Davis of California. Thank you very much.
    Thank you, Mr. Crider, for being here.
    I appreciate the fact that you raise the issue in the 
difference between the two versions. I am just wondering the 
extent to which did you feel that this was a pretty big edit or 
a not-so-big edit? And is there a way that the EAC might have 
been able to deal with this in a way that is a little more up-
front?
    Mr. Crider. That is a politically charged question, in 
terms of the various versions, because--depending upon the 
reader and how they want to interpret the writing.
    Could the EAC have done better? Yes, they could have. Could 
they have involved the consultants in the revisions to the 
report? One of the issues that became involved here was that 
the consultants' contract had, in fact, expired and that, when 
they delivered the product, the EAC took it and then started 
working with it. But, yes, we could have involved the 
consultants with the revisions to the report.
    But I think it goes back further, in terms of how the 
project was initially structured and how it was managed; that, 
even from the very beginning, I think there was confusion as to 
what was going to be delivered, how it was going to be 
delivered and what was going to be done with the product.
    And when you go back through the whole history of the 
project--and I think that led up to this particular scenario--
is that, when we got the product, we did not go back, as you 
would with any other contractor, and try to work with the 
contractor to get revisions to the product.
    The project was done under a personal services contract, 
which means that they were basically employees of the agency 
during this period of time, and their work then became the 
product of the agency--or the agency-only work product.
    So I think a number of things contributed to this, but, 
yes, they could have done better. They could have worked with 
the consultants, in terms of making the revisions and trying to 
make sure they understood why the revisions needed to be made. 
And I think that is where one of the biggest failings was, is 
that we didn't go back and say, ``Okay, this is why we need to 
make those changes.''
    Mrs. Davis of California. Clearly, I mean, the EAC is in a 
difficult position. But I am just wondering, what kind of 
pressure do you see that they actually do come under to deal 
with that pressure?
    Mr. Crider. I think I should let the Commissioners answer 
that question, because they are the ones that have to deal with 
that. I don't have to deal with it. So I think they would be 
the ones in the best position to answer that question.
    Mrs. Davis of California. What do you think Congress could 
do or should be doing to be more involved in this process? Is 
there anything that you see that is appropriate?
    Mr. Crider. I think the hearing today and things of this 
nature, where there is oversight, vigilance in terms of what 
the EAC is doing, and making sure that the EAC has sufficient 
resources to do the job that it needs to do, would all 
contribute toward a successful mission.
    Mrs. Davis of California. And when you take a look at other 
agencies like the EAC, how does it compare?
    Mr. Crider. We are extremely small in relationship to other 
Federal agencies.
    During the period of this study, the EAC was also under a 
personnel ceiling cap, is my understanding, where they could 
not hire people. So they had people trying to perform multiple 
jobs and multiple functions at the same time.
    That cap has now been removed, and the EAC is trying to 
hire people so that people can start performing the functions 
that they were hired to do, versus trying to do multiple jobs 
at the same time.
    Mrs. Davis of California. Thank you. I appreciate it.
    Madam Chair.
    Ms. Lofgren. Thank you. The gentlelady yields back.
    I just realized that I invited you to give your testimony 
without properly introducing you to our audience. So if I may 
just divert for a moment, Mr. McCarthy.
    Mr. Crider, as we know, is the IG for the U.S. Election 
Assistance Commission and has been since August of 2006. He has 
32 years of auditing experience in the Federal Government and 
is a 1975 graduate of Clemson University. He is also a 
certified public accountant and a certified internal auditor. 
And we are pleased to have him here today.
    And, with that, I would yield to the ranking member, Mr. 
McCarthy, for his 5 minutes of questions.
    Mr. McCarthy. Thank you, Madam Chair.
    I just got your IG report last night. I guess it is dated 
March 10th. Looks rather thorough, 17 pages. I read through 
most of it.
    How many hours did you put into this audit?
    Mr. Crider. We contracted with the Department of the 
Interior Office of Inspector General to conduct the 
investigation. So I don't know how many hours they put into it. 
If you would like that information, we can get it.
    Mr. McCarthy. Okay. If you can follow up, that would be 
very helpful.
    But I was wondering, after investigating all the 
circumstances surrounding the vote fraud and the voter 
intimidation research project, did you find any evidence of 
partisanship on the part of the EAC?
    Mr. Crider. No, we did not.
    Mr. McCarthy. Having gone through all of that, as well, did 
you find any evidence that Hans von Spakovsky influenced the 
content of the report?
    Mr. Crider. He sent some e-mails to the Chair of the EAC at 
that particular point in time, and the Chair responded very 
strongly that he would not be a party to any deal-making, he 
would not be a party to any type of pressure or anything of 
that nature. So I think the EAC responded appropriately.
    Mr. von Spakovsky does not believe that he tried to unduly 
influence the project. But, like I said, I think the Chair of 
the U.S. Election Assistance Commission responded 
appropriately.
    Mr. McCarthy. Do you feel it is proper that people are able 
to e-mail and give input to the EAC?
    Mr. Crider. You have to have public input; you can't 
operate in a vacuum. There is a very strong constituency out 
there. This is a very important arena that we work in. And 
saying people can't e-mail or talk to people would not be 
appropriate, because I think you would have to have a wide base 
of people that you get ideas from and thoughts from and even 
criticism. So I think you do need that.
    Mr. McCarthy. Okay. I agree with you. I believe we should 
be very open. I believe e-mails give you greater accountability 
and give you greater input and give you continual education 
upon the subject.
    You had mentioned a little earlier about the staffing size 
and the multiple jobs. Do you find that was one of the major 
problems when it comes to some of the points you lay out about 
their need for greater bookkeeping?
    Mr. Crider. I think people were stretched very, very thin, 
and they were trying to do multiple things at the same time. 
And, in some cases, I think people may have been doing 
functions that they maybe should not have been.
    And that is just where you need to have enough people in 
order to segregate duties, to make sure that people do stay 
within their areas of expertise and can then perform the 
functions they were hired to do.
    Mr. McCarthy. How many more people do you feel the EAC 
needs to hire to be able to----
    Mr. Crider. Right now I think they have hired seven people, 
to date, in the last 6 months.
    And I think the--one of the things that the EAC needs to do 
is to take a look at--which we recommended as part of our 
assessment report--is take a look at the skill sets that they 
currently have and what skill sets they need to acquire, as 
well as develop strategic plans, operating goals and 
procedures.
    Right now, they are sort of like a ship without a rudder. 
And they need to focus in on what the mission of the 
organization is and determine what level of resources they do 
need. So I cannot give you an answer--10 people, five people. I 
think the Commission needs to focus in on that and decide what 
its mission is and how they are going to go about doing it.
    Mr. McCarthy. Do you think a year is enough time to--some 
of the corrections you asked for in here--is enough time to 
achieve all of that by the EAC?
    Mr. Crider. I would like to think that some of them could 
be done a lot sooner than that. And that is one of the reasons 
why we requested the action plan as a part of our assessment 
report, so that we can monitor and track.
    Some of the things are going to take an extensive period of 
time. This is not going to happen overnight. But I would think 
a year should be more than sufficient time for them to get the 
stuff done that we think they need to do.
    Mr. McCarthy. Okay. Well, I thank you for your time.
    And I yield back, Madam Chair.
    Ms. Lofgren. Thank you.
    I would recognize Mr. Artur Davis, member of the committee, 
at this point.
    Mr. Davis of Alabama. Thank you, Madam Chairwoman.
    Let me, Mr. Crider, turn to, I guess, the part of the 
report that is probably of most interest to people who aren't 
knowledgeable about all the weeds--that is, the portions 
related to Mr. von Spakovsky.
    As I understand it, he has been nominated for a position on 
the FEC, and there has been a significant amount of controversy 
around his nomination. Is that right?
    Mr. Crider. Yes, that is my understanding.
    Mr. Davis of Alabama. Did you--and I apologize, I did not 
have more time to read your report--but did you interview him 
in connection with preparing your IG report?
    Mr. Crider. Yes, he was interviewed.
    Mr. Davis of Alabama. And did you question him about this 
August 29, 2005 e-mail that refers to, quote, ``a political 
compromise agreement''?
    Mr. Crider. Yes, sir.
    Mr. Davis of Alabama. And did he--just give me some sense 
of what his response was to this notion of a political 
compromise agreement between DOJ and EAC.
    Mr. Crider. I am sorry, sir?
    Mr. Davis of Alabama. Could you give me some sense of what 
his reaction was to that language, ``political compromise 
agreement''? Did he share that characterization? Did he dispute 
it? What was his reaction?
    Mr. Crider. Mr. Davis, I don't have the report right here 
in front of me. And I would prefer to provide you that 
information for the record, if you don't mind.
    Mr. Davis of Alabama. Well, do you remember that? I mean, 
it seems like a fairly meaningful conversation.
    Mr. Crider. The Department of the Interior conducted the 
investigation for us, okay?
    Mr. Davis of Alabama. Okay.
    Mr. Crider. And we have copies of the interviews, and we 
have read the interviews, but it was over a period of time, and 
I don't want to misquote.
    Mr. Davis of Alabama. Well, let me try to perhaps pick up 
where Mr. McCarthy left off. The question that might be of some 
interest to our colleagues in the Senate is, what is the 
appropriate level of engagement, if you will, between someone 
like Mr. von Spakovsky and the process that was going on at the 
EAC? Where do you draw that line, in the perspective of the 
Inspector General?
    Mr. Crider. The Department of Justice is on several 
advisory boards by law, and so they do have input into a number 
of functions that the EAC performs by law. And, therefore, you 
know, that is what Mr. von Spakovsky was involved with. And, 
like I said, that is by law.
    Mr. Davis of Alabama. What about this notion of a, quote, 
``political compromise agreement.'' I don't have in front of me 
the authorizing statute for the EAC, but I suspect, if I looked 
at it, there would not be any reference to the EAC having the 
capacity to reach political agreements with the Department of 
Justice regarding its mission scope.
    Does that phrase, ``political compromise agreement,'' 
trouble you?
    Mr. Crider. Yes, it does. I think that the Chair of the 
U.S. Election Assistance Commission did respond appropriately 
and strongly that he did not make deals. I think that type of 
language would be very troublesome.
    Mr. Davis of Alabama. What does it say to you that Mr. von 
Spakovsky apparently thought it appropriate to make a deal?
    Mr. Crider. That there needs to be some clarification as to 
what roles people play, in terms of the advisory boards, and 
what input they need to have.
    Mr. Davis of Alabama. Have you provided a copy of your 
report to the United States Senate, which apparently is 
considering his nomination to be on the FEC?
    Mr. Crider. They have received the redacted version.
    Mr. Davis of Alabama. Okay. Can you explain to me why a 
redaction was necessary?
    Mr. Crider. The interviews were not provided as a part of 
the report, because there is information in there that is 
covered by the Privacy Act.
    Mr. Davis of Alabama. Is there anything that you came 
across in your report that you think might be relevant to Mr. 
von Spakovsky's fitness to serve on the FEC?
    Mr. Crider. Not to my knowledge, no, sir.
    Mr. Davis of Alabama. Would you consider his veracity, or 
lack of veracity, to be relevant to his fitness to serve?
    Mr. Crider. That is not for me to decide. That is something 
that the Senate should decide when they take him up for 
confirmation. But we have his interview.
    Mr. Davis of Alabama. Do you remember if there were any 
credibility disputes or any differences of factual assertions 
between Mr. von Spakovsky and other individuals that were 
interviewed?
    Mr. Crider. No. I am not aware of any.
    Mr. Davis of Alabama. Okay. Meaning that there weren't any 
or you just don't remember if there were any?
    Mr. Crider. I am not aware of any.
    Mr. Davis of Alabama. Okay. Well, I don't want to take a 
lot of time, because we are trying to move on to our second 
panel, but I think you get the thrust of the concerns that I am 
raising. I think, as Mr. McCarthy pointed out, there is a line, 
and then there is conduct that falls on the permissible side of 
the line. What I hear you saying is that Mr. von Spakovsky may 
well have crossed that line, if these statements are accurate.
    And I am just struck again and troubled again by this 
notion of a political compromise agreement. If the EAC is going 
to render dispassionate opinions about how the election process 
is working, I don't know if they can do that by reaching 
political compromises. It would seem that that is the task of 
this institution.
    And if I understand the boundaries correctly, the EAC's 
role is to make recommendations, to objectively assemble facts. 
Then it is up to us to make the political assessment and up to 
us to forge a political compromise.
    Have I got that about right, Madam Chairwoman?
    Ms. Lofgren. The gentleman's time has expired.
    Mr. Davis of Alabama. Okay. Well, I will take that as 
meaning I got it right. I yield.
    Ms. Lofgren. That little marimba is on my iPhone. I am 
using the timer here.
    I recognize the ranking member of the full committee, Mr. 
Ehlers of Michigan, for 5 minutes.
    Mr. Ehlers. Thank you very much.
    I appreciate you being here, Mr. Crider.
    I have just been reading the summary of what you found. Is 
it typical, when you do enter into a situation like this, that 
you find this many shortcomings in management and accounting?
    Mr. Crider. It is unusual to find this many. But you have 
to remember the EAC is a relatively new organization, and it is 
time for them to grow up and become a Federal agency like it is 
supposed to be. We can no longer use the excuse, ``We are 
new.''
    Yes, we were concerned about the number of deficiencies we 
identified. And that is one of the reasons why we are going to 
be meeting with the Executive Director on a monthly basis, to 
try to monitor what is going on, because it is unusual.
    Mr. Ehlers. Yes, I find it appalling, because members of 
the EAC, by and large, have worked in government before. They 
know the stringent requirements of government accounting and 
management and so forth. And even though it is new, I thought 
there would be a structure set up that would handle these sorts 
of things and do it properly.
    Mr. Crider. A significant amount, especially when the EAC 
was first formed--and this is not a criticism of the 
individuals--their experience was more at the State level and 
not at the Federal level. And this is a Federal organization, 
and we have specific rules and things that we need to follow. 
And I think that is where some of the issues started to 
develop, is that they did not really understand how a Federal 
agency was supposed to operate and what all was involved.
    Mr. Ehlers. Okay. I served at the State level too, and I 
know the Federal requirements are very strict, but, in my case, 
I found the State requirements almost stricter, because it is a 
smaller body, reporters are more readily able to understand it, 
dig into it, and write nasty stories. Maybe that is not true in 
every State, however.
    So thank you. I just appreciate your comments.
    And that is all I have. I yield back.
    Ms. Lofgren. The gentleman yields back.
    The gentleman from Texas, Mr. Gonzalez, is recognized.
    Mr. Gonzalez. Thank you very much, Madam Chairwoman.
    Mr. Crider, let me ask you--and I am only going to spend a 
couple of seconds on this, because it is of particular concern 
to us--were the actions taken by Mr. von Spakovsky appropriate 
or inappropriate?
    Mr. Crider. That is a judgment call, sir. And I am not 
necessarily--obviously, Mr. von Spakovsky feels that he was 
within his rights as a member of the advisory board. The Chair 
of the EAC pushed back. I don't know if I can make that type of 
a judgment call.
    Mr. Gonzalez. Because his complaint was both to form and to 
substance, is my understanding. He complained to the EAC as far 
as the hiring of the consultant Wang and said, ``I don't 
believe that what we have representing the Republican side''--
because, obviously, he saw that there was a Republican or 
Democratic side--was not sufficient to withstand the aggressive 
or assertive nature of Wang. So that's the form part: ``I don't 
like how you are constituting your consultants.''
    And then, secondly, there was discussion about the 
substance, and that is, ``We had a deal. We were going to 
conform what we had here at DOJ to fit more what you might be 
doing. But there was, more or less, a deal or a compromise.''
    It would seem to me, if I was on the Election Assistance 
Commission, that that is an overreach, that it would be 
inappropriate, at least from--obviously, I can ask members, the 
Commissioners and such, but I am just thinking you, in your 
capacity--have you seen that occur in any other setting?
    Mr. Crider. The advisory boards operate differently than 
maybe what I have seen in other places. And I think that is one 
of the things that the EAC will have to look at, in terms of 
what role do the advisory boards play and what influence should 
they have, if any, and how should that input then be used and 
generated and recorded so there is transparency.
    But the advisory boards--like you said, Mr. von Spakovsky 
was on the advisory board, and he did have knowledge of the 
project. And I think his input was actually sought, in a couple 
of cases, as all the members of the advisory board were.
    Mr. Gonzalez. And I think basically what I am looking at is 
really the partisan nature of the inquiry, recommendation and 
interests, as expressed by him.
    Let me move to something else here. In a minute, we will 
have the individual members, and they can probably answer. But, 
you know, following up on what the ranking member was pointing 
out, as to whether this is an inordinate amount of 
deficiencies, if that is how we will refer to them, or areas of 
concern, but it seems to me that what you have is you have 
problems with process. Mandated studies and reports have not 
been submitted on due dates. You have problems with accounting, 
as far as the management of travel expenses, which may not be 
anything that is serious or that something untoward is 
happening--or delay in release of reports and such. But it 
seems to be that, just about at every level, there is room for 
improvement.
    But first I need to acknowledge something, and that is that 
the Commission really didn't get a healthy headstart as a 
result of Congress's inaction at its very inception. I remember 
those days, when they didn't have a place to meet, they didn't 
have staff and so on. So it is not all their fault that they 
were a little behind, and I acknowledge that.
    Where do they go for that guidance to improve in all of 
these areas that, obviously, you find, not necessarily 
alarming, but, again, of concern. Because you have said it is a 
good thing to have oversight, but there is only so much that we 
are going to be able to do.
    What we do is look at reports and such and we say, ``Look, 
you need to improve here, you need to improve there,'' and then 
we just kind of let them go at it. But this is a unique, unique 
commission, with a very specific mission that is different and 
has never existed before, to be quite honest with you.
    So where do they go for their guidance? Where would you 
suggest, in these areas where, obviously, they need to improve?
    Mr. Crider. A lot of the things we are talking about here 
are routine operating policies and procedures and things that 
every Federal agency has. Every Federal agency has a travel 
policy. Every Federal agency has a property management policy. 
Every agency has a contracting policy. So you go to other 
Federal agencies and get the stuff that they have, and then you 
tailor it to fit your circumstances.
    There are contractors out there that specialize in A-123 
work, in terms of establishing documenting and internal 
controls. So there are plenty of resources out there. We have 
gone to GAO for some guidance; Office of Management and Budget. 
So there are places out there that we can go and that we do 
need to utilize as an agency.
    Mr. Gonzalez. Thank you very much, Mr. Crider.
    I yield back.
    Ms. Lofgren. The gentleman yields back.
    I will now recognize myself for just a few minutes.
    On the report, what role has the general counsel for the 
agency played in drafting, editing and revising the 
investigative report of the vote fraud and intimidation and the 
study of the impact on voter identification?
    Mr. Crider. None.
    Ms. Lofgren. None.
    Mr. Crider. They didn't even see it.
    Ms. Lofgren. So this was just completely separate.
    Mr. Crider. Completely independent and separate from the 
EAC.
    Ms. Lofgren. Okay. Now, I am concerned that--I mean, there 
is the report itself, that the EAC, I want to emphasize, asked 
for. But there is the broader question of organization and 
efficacy of the agency. It sounds like we almost need, you 
know, ``agency in a box'' that you could put in place. I don't 
know if that is available in the Federal Government.
    I am just wondering if you are satisfied with the action 
plan that the Executive Director prepared in response to your 
February audit?
    Mr. Crider. We are pleased with the action plan. And we 
will be monitoring it, as we go through it. And if additional 
things come out of the implementation phase that need to be 
added to the action plan, we will work the Executive Director 
to add those to the action plan.
    Because there is no such thing as a complete cookbook for 
the Federal Government. You would think, with the number of new 
entities being established, that there would be some type of a 
manual or book to say, ``Okay, this is what I need to do,'' but 
there is not. At least we haven't found it yet.
    But, no, we are pleased with the action plan. And, like I 
say, we will be monitoring that and adding things as we go 
through it, if we need to, to try to get to the place where the 
EAC needs to be.
    Ms. Lofgren. Now, I understand that the GAO is at least 
considering a review of the agency similar to what they 
performed at one time for the Legal Services Corporation.
    Mr. Crider. We have talked to the GAO, and they do not have 
any plans to come in and do it at this point. But we have 
talked to them about doing a similar-type review. But they have 
not indicated their willingness to do it, at this point.
    Ms. Lofgren. Okay. Let me just ask a final question, which 
is the--maybe it is not possible to answer. But, in your view, 
does the EAC rely too much on outside individuals and 
nongovernmental groups to determine its focus, or not? I mean, 
there is no, really, agency that is like them. But is that part 
of what has led to the disorganization, do you think?
    Mr. Crider. I think that is a contributing factor, but I 
can't give you any evidence to support that other than my own 
observations. But I do think that the role that the advisory 
committees and panels play needs to be very clear and 
understood by everyone, and transparent so that everybody 
understands what is happening with those advisory panels.
    Ms. Lofgren. So, in your judgment, if we have these 
advisory panels, there is value, obviously, in getting input, 
but there ought to be structure and accountability and minutes. 
And it shouldn't be sending stray e-mails perhaps. But there 
ought to be action on the part of the advisory group itself or 
some structure that is transparent for individuals to provide 
input.
    Mr. Crider. In my opinion, yes.
    Ms. Lofgren. Okay.
    I am not going to use the remainder of my time. I will 
thank you, Mr. Crider, for being here and for your service to 
the Government and to the country.
    And we may have additional questions for you. Members have 
up to 5 legislative days to submit additional questions. And we 
would ask you to respond promptly, if we are able to forward 
those to you.
    We will ask our next panel to come forward.
    Mr. Crider. Thank you, ma'am.
    Ms. Lofgren. And while they are coming forward, I would 
ask, without objection, to enter into the record two letters, 
one from verifiedvotingfoundation.org and the other from Voters 
Unite, on the subject matter of this hearing for the record.
    [The information follows:]

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    
    Ms. Lofgren. Our timer is not working, so I have my 
trusty--maybe it will be fixed by the time we are through--but 
I have my trusty iPhone here, and it will go off when the 5 
minutes are up.
    You all know our procedure. Your full written statements 
will be part of the record. We ask that your oral testimony 
consume about 5 minutes, so the members can get to questions.
    We know each of you, but I would like to introduce you 
formally, so that the audience on the webcast and here can know 
who you are.
    First, I would like to introduce Commissioner Rosemary 
Rodriguez. Commissioner Rodriguez currently serves as Chair of 
the Election Assistance Commission. She was appointed in 2007 
and served as Vice Chair of the Commission during her first 
term. Prior to her work with the EAC, Ms. Rodriguez was 
president of the Denver City Council, director of boards and 
commissions for the mayor's office, and a clerk and recorder 
for the city, as well as the County of Denver, for 5 years.
    We also have Commissioner Caroline Hunter, who currently 
serves as Vice Chair of the EAC. She has served on the 
Commission since 2007. And prior to her work with the EAC, Ms. 
Hunter was deputy director of the White House Office of Public 
Liaison; executive officer at the U.S. Department of Homeland 
Security Office of Citizenship and Immigration Services 
Ombudsman; and deputy counsel at the Republican National 
Committee, where she provided guidance on election law and the 
implementation of the Help America Vote Act.
    Next, we have Commissioner Gracia Hillman. Commissioner 
Hillman has served on the Election Assistance Commission since 
2003, where she was first Vice Chair in 2004 and then Chair in 
2005. Prior to her appointment with the EAC, Ms. Hillman served 
as president and chief executive officer of World Space 
Foundation, as well as a senior coordinator for international 
women's issues at the U.S. State Department. Ms. Hillman also 
was a former executive director at the League of Women Voters 
of the United States, the Congressional Black Caucus 
Foundation, and the National Coalition on Black Voter 
Participation.
    And, finally, we have Commissioner Donetta Davidson. 
Commissioner Davidson has served on the Election Assistance 
Commission since 2005, where she served as chair in 2007. Prior 
to her work with the EAC, Ms. Davidson served as the Arapahoe 
County clerk and then Colorado Secretary of State, where she 
was president of the National Association of Secretaries of 
State and president of the National Association of State 
Elections Directors. Ms. Davidson also served on the Federal 
Election Commission Advisory Panel and board of directors of 
the Help America Vote Foundation.
    And we do welcome all of you here today and look forward to 
your testimony and our opportunity to have a dialogue.
    And, let's see, what is the order? Since I introduced Ms. 
Rodriguez first, let's hear from you, and we will go on in 
order.

  STATEMENTS OF HON. ROSEMARY RODRIGUEZ, CHAIRWOMAN, ELECTION 
   ASSISTANCE COMMISSION; HON. CAROLINE HUNTER, VICE CHAIR, 
     ELECTION ASSISTANCE COMMISSION; HON. GRACIA HILLMAN, 
  COMMISSIONER, ELECTION ASSISTANCE COMMISSION; HON. DONETTA 
     DAVIDSON, COMMISSIONER, ELECTION ASSISTANCE COMMISSION

                STATEMENT OF ROSEMARY RODRIGUEZ

    Ms. Rodriguez. Good afternoon, Madam Chair and Ranking 
Member McCarthy and subcommittee members. Thank you for 
inviting us to come back today.
    We are very pleased the Inspector General's report is 
available today, because we know that many, many people in 
Congress and at the EAC and in the general public have been 
waiting for this report for, it seems like, a very long time. 
We are very grateful that it is out.
    Since our last hearing in your committee, our Inspector 
General assessed the EAC, and while I cannot say today that the 
agency is completely reorganized, or even organized, we are 
taking strenuous steps to improve operations. I appreciate the 
Chair recognizing our efforts in her opening statement.
    We are going to provide the Inspector General with monthly 
updates on our progress, and I would volunteer to provide those 
to this committee as well.
    Ms. Lofgren. We would appreciate that.
    Ms. Rodriguez. Okay, thank you.
    We are drafting regulations to govern FOIA, public 
meetings, grants, trade secrets and confidential business 
information, how to request testimony or information from EAC 
in third-party litigation, Privacy Act procedures, standards of 
conduct, and EAC's policy of nondiscrimination. We expect to 
publish those in April.
    We are drafting travel policies and procedures. We 
established an electronic FOIA reading room. We are in the 
process of hiring a chief operating officer to help with our 
management shortcomings--admitted management shortcomings.
    After our employee cap was removed, we hired additional 
staff in critical program areas, like the Voting System 
Certification Division. All senior staff received cross-
management training.
    We are going to implement the requirements of the Office of 
Management and Budget's management controls. We are creating an 
EAC manual to document our governance and accountability 
structure. And, on Friday, we are going to spend an entire day 
in planning to improve our operations.
    I assure you, however, that all of these efforts to achieve 
internal improvements will not interfere with our assistance 
for election officials.
    Our priority message this year to election official is to 
prepare for a huge turnout: Have enough ballots, voting 
machines and poll workers; adopt a contingency plan.
    The Secretary of State for the State of Arizona is here 
today, Jan Brewer, and she assured us right before we came up 
here that Arizona is ready.
    The EAC has delivered tools and information, and other 
testimony will go into that in more depth. I am going to keep 
this very brief and name three questions that I think we need 
to be prepared for and that I think you will be interested in.
    HAVA says that voting systems purchased with funds 
appropriated after 2007 must be fully accessible. What systems 
are considered accessible to individuals with disabilities?
    What is the role of the EAC clearinghouse?
    And Congress provided us with $115 million in new funds--
thank you--but can States use that money to replace touch-
screen equipment?
    As Chair of the EAC, I assure you that the EAC will focus 
on its responsibilities under HAVA. We will fully inform the 
Congress and the public about our activities.
    Someone pointed out that we are a fairly young 
organization, but that it is really, Congressman Ehlers, no 
excuse for not being appropriately managed. And we intend to 
correct that.
    Thank you very much.
    Ms. Lofgren. Thank you very much.
    Let me turn now to Commissioner Hunter, and invite you to 
give your testimony.

                  STATEMENT OF CAROLINE HUNTER

    Ms. Hunter. Thank you very much. Good afternoon, Chair 
Lofgren, Ranking Member McCarthy, members of the subcommittee. 
Thank you for asking us to be with you today.
    One of the EAC's most important mandates under the Help 
America Vote Act is the adoption of the Voluntary Voting System 
Guidelines. The guidelines provide a set of specifications and 
requirements against which voting systems can be tested to 
determine if they provide all the basic functionality, 
accessibility and security capabilities required of voting 
systems.
    HAVA transferred this responsibility from the FEC to the 
EAC. The EAC adopted its first version of the VVSG in 2005. And 
we are now in the midst of adopting the newest version of the 
VVSG, and we are calling that the next iteration.
    HAVA clearly defines the process for adopting these 
guidelines. The technical guidelines, development committee and 
NIST provide us with an initial draft. We then adopt a final 
version. We are doing that currently, under a public comment 
review.
    We have a public comment period that will expire on May 5th 
of this year. We are holding a variety of different roundtables 
with different advocacy groups, election officials, voting 
machine manufacturers and others. And we hope to get as many 
constructive comments from the public as possible, in making 
the very serious and difficult decision on which version of the 
Voluntary Voting System Guidelines to adopt.
    The newest version will likely be a complete rewrite of the 
2005 guidelines intended to address the next generation of 
voting systems. They contain new and expanded material in the 
areas of reliability and quality, usability and accessibility, 
security and testing.
    According to HAVA, as you know, adoption of the guidelines 
at the State level is voluntary. However, States may formally 
adopt the WVSG, making these guidelines mandatory in their 
jurisdictions.
    We often get asked what value voluntary guidelines provide. 
The answer is simple: They provide a base level of conformity 
testing that election officials can rely on, if they choose to 
do so. States have the flexibility to apply the parts of the 
guideline that make sense in their jurisdictions or not to use 
them at all.
    The EAC is also operating the Federal Government's first 
voting system certification program. And let me address two 
issues that come up frequently.
    One issue is the vendors paying labs directly. The EAC is 
not authorized to pay the labs. Any funds we collect must be 
turned over to the Treasury. To allow EAC to do this would 
require action on the part of Congress. And, as we have stated 
in the past, if Congress wishes to take this action, we stand 
ready to assist.
    The second issue I would like to mention today is that the 
Help America Vote Act did not give the EAC authority over 
voting systems that we have not evaluated. Right now we have 
approximately six systems within our certification program, 
but, as of this date, the EAC has not certified any voting 
system.
    So there are no EAC-certified voting systems in use today, 
and there likely won't be in the 2008 election. Therefore, we 
don't have any authority over the machines that are not 
certified by us and that are probably going to be used in this 
election.
    Thank you very much.
    Ms. Lofgren. Thank you very much.
    Commissioner Hillman.

                  STATEMENT OF GRACIA HILLMAN

    Ms. Hillman. Thank you. Good afternoon, Chairwoman Lofgren, 
Ranking Member McCarthy and members of the committee.
    On several occasions in 2007, this committee raised 
questions about EAC's decision-making process as it pertains to 
our research and studies. We previously reported that, in May 
2006, EAC began managing its large research contracts through 
GovWorks, which is a business unit of the Department of the 
Interior. This relationship provides us with Federal 
contracting expertise that we need.
    Additionally, EAC selects from GSA's schedule of pre-
competed vendors for our smaller contracts. And every contract 
is managed by an EAC staff person who has been trained in the 
management of Federal contracts.
    With respect to transparency, Madam Chair, EAC has taken 
three important steps since mid-2007. Our contractors and 
consultants continue their work until the final product is 
accepted by the Commission. We also receive periodic updates 
from staff and consultants at our public meetings. And draft 
research products are posted on our Web site.
    Additionally, we continue to work with our advisory boards 
to review their participation in our research, especially on 
the front end.
    But, Madam Chair, those and other steps haven't made a dent 
in our ability to navigate the complexity of being a Federal 
Government agency. I know that this committee recognizes the 
many structural challenges we face, as do Senate Rules and our 
appropriations committees. And I recognize that EAC must match 
its commitment to change with tangible action.
    Our work is significant and has national impact. We must 
expedite our efforts to improve the operations of our 
relatively young, now-adolescent agency. Yet, despite these 
challenges, EAC has directed its resources to assist State and 
local election officials.
    Within the last year, we have produced best-practice guides 
to help improve the administration of Federal elections. I will 
briefly describe two programs which provide this assistance and 
address specific interests of this committee.
    We frequently hear about election day problems caused by 
human error. Well, who are these humans who make these errors? 
Madam Chair, they are hard-working, honest people who volunteer 
to provide poll-worker service in their communities. These 
workers are America's champions of democracy. They deserve the 
best training available so they can perform with excellence and 
accuracy. So, obviously, one urgent need is adequate numbers of 
highly trained poll workers.
    EAC has helped to tackle this challenge. You have before 
you EAC documents that provide effective and affordable 
practices for the recruitment, training and retention of poll 
workers. They are guides that look like this, and one in the 
notebook. And we ask that the material be submitted for the 
record.
    Ms. Lofgren. Without objection, it will be accepted into 
the record.
    Ms. Hillman. Thank you.
    [The information follows beginning on page 124.]
    Ms. Hillman. Equally challenging for election officials is 
the effective design of voting materials. Ballot design flaws 
made front-page news in 2000, in 2006, and again this year 
during the California presidential primary. To help with this 
challenge, EAC produced and distributed sample materials and 
best practices for effective designs.
    Ms. Hillman. Madam Chair and Members of the Committee, I 
call your attention to the easels in this room. They hold 
displays of sample ballot designs for optical scan and direct 
recording electronic voting systems. These and other materials 
were produced by EAC after a year of study and field testing. 
Through these materials, EAC has provided professional 
expertise at no cost to election officials. We have also saved 
them time and money by providing the materials in camera ready 
images and in different languages. Additionally, EAC will hold 
a ballot design workshop in April, and we are providing 
information to the History Channel on this and other topics as 
it produces a series on elections.
    Madam Chair, I will close by saying that I have worked for 
over 30 years to ensure fair and equal access to the franchise. 
EAC can and must perform a critical role in ensuring access and 
accuracy despite its limitations under the Help America Vote 
Act. Having said that, I also know that Congress and the 
American voters must have confidence in EAC's ability to 
efficiently and openly serve the public good. EAC's success 
depends on the continued production of high quality and 
unbiased information. It depends on transparency and efficiency 
and it depends on your continued support. I look forward to 
answering your questions. Thank you.
    Ms. Lofgren. Thank you very much. We would turn now to 
Commissioner Davidson.

               STATEMENT OF HON. DONETTA DAVIDSON

    Ms. Davidson. Thank you. Good afternoon, Chairwoman 
Lofgren, Ranking Member McCarthy and Committee. Let me start by 
saying I am glad the IG report is out and done. It confirms 
what we felt we all knew. There was no partisan influence. That 
is why I requested the report and that I had unanimous consent 
with my commissioners. In the review, you will see that I 
reached across the aisle and discussed my concerns about voter 
ID report with another commissioner. Our conversation was 
shared with third parties for the purpose I don't know. And the 
information passed along was incorrect. I was concerned about 
voter ID report. For example, I felt that the statistics were 
not accurate. I will continue to urge to be transparent in our 
process across the board. And I will fully support and continue 
working with all of the commissioners because 2008 is going to 
be a very busy year.
    As the Chair said, due this year to anticipated increase in 
turnout contingency plans are very important. Increased turnout 
is a great problem to have. But it means having enough ballots, 
having enough poll workers and having enough equipment to 
support the turnout is what we have to have because the record 
numbers will be there. Secure, accurate and accessible 
elections are a complex process comprised of many moving parts 
and many people. Some of those people are involved only once a 
year. We hear a lot about whether voting systems can be 
trusted. In fact, any voting system, whether it's a ballot box, 
whether it is an optical scan system, a touch screen, can be 
compromised if you have two things, knowledge of that system 
and access to that system.
    I've been an election official my entire career, and one 
thing never changes, whether voters use paper ballots or a 
touch screen details matter. It is very important that we make 
sure that our voting equipment is working properly as it is to 
have procedures and well-trained people to control access and 
maintain the equipment properly. That is why the EAC has 
produced what we like to call quick starts, as I hold up for 
your attention. And they have been delivered. I'm sure that you 
have them. We have done these management processes on several 
areas like polling place and voting centers, managing change in 
election office, media and public relations, absentee voting 
and voting by mail, acceptance testing, voting system 
certification, voting system security, poll workers, ballot 
preparation, printing and preelection testing, new voting 
systems and the contingency and disaster planning.
    The management material, as we call the quick starts, have 
been distributed to every election official throughout the 
Nation. In the very near future, we will have material to serve 
the elderly and the disability and long-term care facilities. 
Also, military voters and how to audit the entire election 
process. Also, our language accessibility program has produced 
Spanish glossaries of the election terms. Translated a large 
portion of our EAC Web site took Spanish and also had the 
registration form in the language. In May, we anticipate the 
EAC will offer a glossary in five Asian languages, as well as 
provide the Web site content and the form in those languages. 
All of the material that the EAC produces to help election 
officials are absolutely free. And we distribute them to 
everyone.
    As a former election official who watched the formation and 
the evolution of HAVA very closely, the EAC is providing the 
type of information and assistance to the officials that we 
feel that HAVA definitely envisioned. I thank you very much and 
I look forward to your questions also.
    Ms. Lofgren. Thank you very much, and thanks to all of you 
for your testimony today.
    [The statements of Ms. Rodriguez, Ms. Hunter, Ms. Hillman 
and Ms. Davidson follow:]

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


    Ms. Lofgren. We will now begin our questioning. And I would 
like to turn first to our colleague, Susan Davis, for any 
questions she may have for the commissioners.
    Mrs. Davis of California. Thank you, Madam Chair, and thank 
you to all of you for being here and for your service. I can 
tell that this is not easy. And I had asked the inspector 
general about the pressures that you may be under from vendors, 
from others. And I wonder if you could talk about that briefly 
and how you all deal with that.
    Ms. Rodriguez. I will start. We have a fairly, I think, 
helpful ex parte policy so that vendors, we don't really have 
direct conversations from vendors, and therefore they can't 
really put any kind of pressure on us, which I'm grateful to 
have that policy in place. I certainly consult people. I have 
not experienced any kind of undue pressure to vote a certain 
way or anything, but I do seek input. I think it is a healthy 
part of our process to get different opinions. I have only been 
here a year and I have noticed that you can get sort of 
isolated in Washington, D.C. And so it is helpful.
    Whenever I go to a conference or travel, I try to meet, 
have a brown bag lunch and invite local voting activists in 
to--when I visited Secretary of State Brewer in Arizona, I had 
a meeting with about 150 interested Arizonans who wanted to 
talk about the political process. So I kind of seek that 
information. And I wonder if any of my colleagues want to chime 
in.
    Ms. Hunter. Thank you. I agree with my colleague, 
Commissioner Rodriguez, that it is important to seek input from 
outside sources, and I think we all strive to do that. To tell 
you the truth I have been surprised at how little interest that 
there has been in the workings of the Commission on the part of 
the public. Our meetings are not terribly well attended, we 
don't receive a lot of comment in my opinion. So we are sort of 
forced to seek that kind of input from the public, whether it 
is through conferences. Each of us does a number of public 
speaking engagements around the country to various State and 
local election officials and other groups.
    So I think it is extremely important that we hear from 
outside sources as long as we were aware of the positions from 
which they come.
    Mrs. Davis of California. Did you want to comment? I have a 
few other questions, too.
    Ms. Hillman. I will just say that there is a different kind 
of pressure. I personally have never been under any political 
pressure one way or the other, but this is a different kind of 
pressure. We operate in a two-year cycle. The election dates 
are set and we have to be ready to assist for those dates. The 
public has high expectations. And sometimes they go beyond what 
we are authorized to do. Plus there is a desperate need and 
probably a legitimate one for quick fixes. And you can't do 
quick fixes in an election. So some of that pressure is, it is 
a different kind of political pressure, but unlike my 
colleague, I feel it just in reading e-mails and blogs and 
letters that people write. I know that there is an expectation 
that the Election Assistance Commission working with its 
partners is going to fix the problems.
    Mrs. Davis of California. I wonder, one of the issues that 
you have to deal with, of course, is how you use some of the 
surplus HAVA funds. And there has been a question of whether or 
not those machines that were recertified, if they can't be 
used, can those dollars be put into other kinds of machines 
that counties might be taking a look at? How have you been 
trying to work through that clarification of how those funds 
can be used?
    Ms. Hunter. Are you asking someone in particular?
    Ms. Rodriguez. I can talk about it. The EAC has previously 
instructed the States that they cannot use remaining HAVA funds 
to purchase equipment to replace equipment previously purchased 
with HAVA funds. And we have a request from a State now to do 
that. And I have placed on the table for consideration by the 
Commission on March 20th a revision to our policy that would 
allow it. We have asked GAO to give us an opinion on that by 
March 19th and they have agreed to provide that. And so we will 
very shortly have the opportunity for the Commission to----
    Mrs. Davis of California. Is that for the State of 
California?
    Ms. Rodriguez. It would apply to any State in that 
situation.
    Mrs. Davis of California. We are certainly in that 
position. I think it is about $78 million left. And much of 
that equipment, of course, was decertified.
    Ms. Lofgren. The lady's time has expired. The gentleman 
from California, the Ranking Member McCarthy is recognized for 
5 minutes.
    Mr. McCarthy. Thank you, Madam Chair. I want to thank all 
the Commissioners for coming in and giving your testimony 
today. If I could ask Chair Rodriguez, you had brought up the 
Secretary of State from Arizona here too. Thank you for coming. 
But in the National Voter Registration Act, it requires the EAC 
to develop a mail voter registration. I know there are five or 
six States that are before you now that have requested some 
changes. Can you tell me where they are in that process and 
whether you have approved those yet?
    Ms. Rodriguez. We have not approved them. We have, let's 
see, I think we have had them in front of us for some time now.
    Mr. McCarthy. How long would that be?
    Ms. Rodriguez. At least since December of 2007, at least 4 
months. The Commission has been wrestling with crafting a 
policy by which we would accept those changes or make those 
changes. And we have not----
    Mr. McCarthy. Are all the States now the same then on this 
Web site? I mean, are all the voter registration items, every 
State the same?
    Ms. Rodriguez. No, they are not the same. Every State has a 
State instructions portion, all of the States and the 
territories.
    Mr. McCarthy. Then why would we hold up changing these 
States?
    Ms. Rodriguez. Because the EAC, in the transfer of the 
authority to amend the form from the FEC, we haven't completed 
that transfer. We have started it. The FEC, as you know, is 
stagnant at this moment. We have not been able to come up with 
an interim policy that all four of us can agree on, or at least 
three of us can agree on. And so Commissioner Hillman has 
placed each of the State changes on the agenda again on March 
20th for our consideration State by State.
    Mr. McCarthy. I have real concerns with the elections so 
soon and you having this before you for so long. You had 
mentioned Secretary of State Jan Brewer. She has written 
testimony, and I have it, Madam Chair, to present unanimous 
consent.
    Ms. Lofgren. Without objection, it will be entered in the 
record.
    [The statement of Ms. Brewer follows:]

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. McCarthy. That the EAC is unnecessarily 
disenfranchising voters using the Federal form by refusing to 
properly instruct them regarding State citizenship 
requirements. And I am wondering in the concept of the tenth 
amendment and States rights if they committed this to you, and 
you have had it before you a long time, is that the holdup, 
that you don't agree with what the State wants to do, or I 
don't quite understand.
    Ms. Rodriguez. The EAC's position on the Arizona 
citizenship, the documentary proof of citizenship requirement, 
is that there is--it simply isn't--there is no place for it in 
the State instructions on the Federal form because there is 
reasons for that position. The Congress itself grappled with 
whether or not to require that when they wrote the----
    Mr. McCarthy. But the State has passed a law is my 
understanding and they put this in 2 years ago. I understand 
you had studied this, but if the State and States rights has 
passed something to put on their voter registration and their 
mail and they have requested you to do it, I don't understand 
the holdup.
    Ms. Rodriguez. I see your point, and the Commission, there 
are a couple of members of the Commission who share your 
opinion, your position. However, it is not the consensus of the 
Commission that we should amend that.
    Mr. McCarthy. So then you agree with the Secretary of State 
that you are disenfranchising them by not acting, you are 
withholding their ability to change?
    Ms. Rodriguez. In my opinion, the State of Arizona is 
disenfranchising their own voters.
    Mr. McCarthy. How is that?
    Ms. Rodriguez. By requiring this documentary proof of 
citizenship.
    Mr. McCarthy. So you would say because you disagree with 
what the voters of Arizona have voted and asked for, you will 
not move it even though the States asked and the voters have 
asked for it because you personally disagree with it?
    Ms. Rodriguez. No, I would not agree with what you just 
said.
    Mr. McCarthy. Then I apologize, but that is the way I was 
understanding the last thing that you just said, that the State 
was disenfranchising an elected official that the State has 
voted for this, asked for this, moved it on 2 years ago for 
you, and I am just understanding why we haven't moved it 
forward?
    Ms. Rodriguez. Well, it is still in the courts being 
argued. I am not the only person who has this opinion. I mean, 
this issue is being--is scheduled for trial. It is going to be 
heard on the merits. And when it is resolved, the Commission 
will----
    Mr. McCarthy. So you want to wait until the trial is over 
to make a decision by the EAC?
    Ms. Lofgren. The gentleman's time has expired.
    Mr. McCarthy. If I can just have an answer to that question 
I will be done.
    Ms. Rodriguez. Yes, I would like a court to interpret the 
appropriateness of that on the NVRA form. Yes, I want to know 
what a court would say.
    Mr. McCarthy. Madam Chair, I find a real concern with these 
answers. And I may request a minority hearing just based upon 
this, nothing to do with you, Madam Chair, but just to get 
further beyond----
    Ms. Lofgren. Maybe if we don't have votes we can have a 
second round. The gentleman from Alabama is recognized.
    Mr. Davis of Alabama. Thank you, Madam Chairwoman. I think 
all the Commissioners were present when I was questioning the 
Inspector General, so you know I have an interest in Mr. von 
Spakovsky, because he is a figure of some controversy right 
now. And there is a question as to whether he is the 
appropriate person to continue to serve or to serve on the FEC.
    Let me go to you Ms. Hillman, if I can, because you are 
referenced in one of these e-mails. Have you read the inspector 
general's report? I am assuming that you have read it.
    Ms. Hillman. I have seen the same redacted version that I 
believe you have.
    Mr. Davis of Alabama. I am looking at page 16. And I don't 
want to waste time with a lot of questions about it, but I was 
struck by one e-mail exchange between Mr. von Spakovsky and Mr. 
DeGregorio. And at some point, Mr. von Spakovsky says the fact 
that you, Ms. Hillman, does not want to do this because she 
does not want to anger her friends at the League of Women 
Voters is no need for you, Mr. DeGregorio, to be railroaded 
into this. What is your professional response to Mr. von 
Spakovsky's characterizations here?
    Ms. Hillman. Well, first let me tell you, I did not know 
until this report came out that that e-mail exchange happened 
to my colleague's credit. But Mr. von Spakovsky is entitled to 
his opinion, but the facts are not correct.
    Mr. Davis of Alabama. And tell me what is incorrect about 
Mr. von Spakovsky's version of the facts?
    Ms. Hillman. There was no conversation that I had with the 
League of Women Voters about the release, or not release of the 
report or what the report would say. And as Mr. DeGregorio said 
in his e-mail there was nothing I did to--in fact, if anything, 
I was trying to shove that report out the door when I found out 
it had been delayed.
    Mr. Davis of Alabama. And I certainly don't want to read 
Mr. von Spakovsky's mind, but I frankly didn't even read him to 
literally insinuate that you had a communication with the 
League of Women Voters. I am reading this as a little bit of a 
dig, frankly, that he is saying that--I guess he could have 
said liberal do-gooders instead of League of Women Voters. Am I 
out of line in my interpretation?
    Ms. Hillman. Well, I am sure he said that because I was 
formerly employed with the League and there are people who 
would suggest that the League's position on issues is different 
than theirs.
    Mr. Davis of Alabama. We were talking, and Mr. McCarthy, I 
suppose was talking from the other side of the aisle about this 
question. Obviously, it is not illegitimate for Mr. von 
Spakovsky to have given some input or for DOJ to have given 
some input to the EAC. I don't think that itself is 
problematic. But on the other hand there appears to be a line. 
And my sense is that Mr. von Spakovsky may have attempted to 
cross that line with Mr. DeGregorio. Let me just ask all the 
Commissioners to give a quick response. Are any of you troubled 
by Mr. von Spakovsky's efforts to influence Mr. DeGregorio? Ms. 
Davidson, are you troubled by what you read in this report by 
Mr. von Spakovsky?
    Ms. Davidson. You know, I believe that everybody has a 
right to an opinion. We get many things, e-mails from 
individuals that feel that we should be doing something 
different than what we are and we are trying to follow the law. 
Everybody has a right to an opinion, but it is our 
responsibility to stand up and make sure that we take the 
proper action.
    Mr. Davis of Alabama. Let me get at it this way because our 
time is limited, and I know the cell phone is going to go off 
again in a minute. I think we can all stipulate to what I said. 
We all agree with the generality that everybody has a right to 
have an opinion, everybody has a right to insert their opinion. 
It is up to the Commission to be independent. I am asking a 
very specific question about Mr. von Spakovsky's role. And I am 
asking if the Commissioners are troubled by Mr. von Spakovsky's 
reference, for example, to a political compromise agreement 
between EAC and DOJ. Do any of the Commissioners present think 
that it would be appropriate for the EAC to enter a ``political 
compromise agreement'' with DOJ? Ms. Rodriguez, do you think 
that would be appropriate?
    Ms. Rodriguez. I don't even know what it is, so I--I don't 
know what it is. I'm sorry, this is an extraordinary term.
    Ms. Lofgren. Ms. Hunter, does that concept strike you as an 
appropriate one, the idea of a political compromise, because 
this is Mr. von Spakovsky's phrase, not mine?
    Ms. Hunter. Certainly a political compromise wouldn't be 
the proper words to use. I would not have used those words, and 
I suppose he may wish he had not either. But my read of the 
report is that this exchange is not about the voter fraud 
intimidation report, rather it is about conflicting 
interpretations of a provisional ballot law vis-a-vis an 
Arizona law and EAC guidance that was put out several years ago 
that in many people's view was incorrect. And so Mr. von 
Spakovsky was saying he was willing to change his opinion from 
the Department of Justice's perspective which was, in some 
people's view, overly restrictive on when Federal law requires 
you to give a provisional ballot.
    So he is saying I am going to change my position on that, 
if EAC would please consider changing your position on this. So 
it was more a legal situation where my interpretation is he 
didn't want the Federal agencies to have differing views. It 
was not about the voter fraud intimidation report.
    Mr. Davis of Alabama. Since I am hearing the cell phone I 
will close out, but I will just end my last 10 seconds by 
saying that I think I understand better now why Senator Bayh 
and why some other people have issues with Mr. von Spakovsky. 
Because as I understand the role of the Commission, your work 
and the diligent work that you Commissioners are doing is not 
enhanced by an overt politicization, it is not enhanced by an 
attempt at an overt politicization. And I think I agree with 
Ms. Rodriguez that this notion of a political compromise 
agreement just doesn't strike me as being remotely relevant to 
what you do and what DOJ does. Thank you, Madam Chairwoman.
    Ms. Lofgren. Thank you. The gentleman yields back. I would 
recognize the gentleman from Texas, Mr. Gonzalez, for 5 
minutes.
    Mr. Gonzalez. Thank you very much, Madam Chairwoman. 
Chairwoman Rodriguez I am going to follow up on what the 
Ranking Member of the Subcommittee, Mr. McCarthy, was talking 
about, the Arizona situation. I am trying to get it straight in 
my mind. There has not been a final legal determination on the 
merits of the case challenging the citizenship requirement as 
outlined in Arizona law pursuant to, I guess, Proposition 200. 
I know the injunctive relief has been dissolved and that issue 
has probably resolved. But the underlying case itself, is it 
still pending?
    Ms. Rodriguez. Yes, it is still pending.
    Mr. Gonzalez. So it is possible that when this case is 
finally determined----
    Ms. Rodriguez. Commissioner Hunter would like to say 
something.
    Mr. Gonzalez. Oh, I am sorry.
    Ms. Hunter. I just wanted to make a comment that it is true 
that there are some claims remaining in the case. However, the 
District Court recently dismissed on summary judgment many of 
the claims, including the one that this Arizona law violates 
the NVRA. That claim was dismissed, so that issue is no longer 
in the courts.
    Mr. Gonzalez. But there are other--I mean, the summary 
judgment only addressed certain grounds?
    Ms. Hunter. That's correct.
    Mr. Gonzalez. So they still have a legal challenge, which I 
am not sure what the basis may be. I am sure those of 
constitutional dimension. The bottom line is we have pending 
litigation that could be determined and a judgment rendered in 
favor of those challenging legitimacy of the law. I think we 
can agree on that. So what would happen if that comes to pass 
in the next few months after November?
    Arizona is insisting on the citizenship provision, rejects 
thousands and thousands of individuals that are going to be 
disenfranchised for all elections up until the time that the 
court does make its decision. So the court makes a decision in 
December or whatever; election's over, presidential election 
and so on. How do you undo that?
    Ms. Hunter. The court could have granted an injunctive 
relief if they were concerned of such a scenario that you point 
out. And the court would resolve the injunctive relief. As 
Secretary of State Brewer has said on numerous occasions in 
public hearings the minute the injunction was issued she 
immediately stopped enforcing that law, and the minute the 
injunction was lifted she resumed enforcing it. Of course, a 
law is good unless and until it is overturned.
    Mr. Gonzalez. Well let me ask you this, then. You took a 
time out while there was injunctive relief, and during that 
period of time, didn't reject any applications or registration 
forms that didn't comply with the citizenship requirement, 
would that be correct?
    Ms. Hunter. That is what I have heard the Secretary of 
State say yes, sir.
    Mr. Gonzalez. So those individuals came in without that 
requirement. Then when the injunctive relief was dissolved or 
whatever, we have this other population that is subjected. 
Wouldn't the prudent thing to do is simply make sure everybody 
then--it doesn't make sense to me that you are going to have 
two basic standards; one that came during the injunctive relief 
and those that will come afterwards. I am just wondering. Now, 
you could simply say, ``We start the process over and everybody 
that may have registered without the requirement has to 
reregister or whatever.''
    But it just seems to me that the prudent thing while you 
still have a challenge to this law would simply [be] to 
proceed. Now, I am just--this is going to be resolved I take 
it. And I am not sure if it is going to be resolved. You all 
are going to reconsider it. What's the consequence to no action 
by the Commission? What is the consequence again to an action 
that would not support what Arizona is attempting to do and 
Arizona would proceed?
    Ms. Hunter. The consequence, I don't know if anybody else--
--
    Mr. Gonzalez. No action, first of all.
    Ms. Hunter. What is the consequence on if we don't change 
the form?
    Mr. Gonzalez. If you don't approve the form as submitted.
    Ms. Hunter. Well, the law is good law unless and until it 
is overturned. So that is just a clear principle. And I think 
we have the responsibility to accurately reflect State laws on 
the Federal form. The United States Constitution protects the 
right of States to set eligibility requirements.
    And the Federal form has a perfect place for that in the 
State instructions portion of the form. If the EAC were to 
determine or to delay action on this issue, in my view, we are 
impermissibly eroding the right of the State to set the 
eligibility requirements.
    Mr. Gonzalez. Let me ask you, what constitutes a State; 
people, right?
    Ms. Hunter. Yes.
    Mr. Gonzalez. But you are disenfranchising voters, would 
you not? While something is still pending and a law is being 
challenged; What would be the basis and reason for that? Now I 
understand you can have frivolous lawsuits out there, but once 
this is taken care of, then you have stare decisis, you have 
precedent, the issue is dead, it is long gone, it has been 
decided. But it has not been decided. So why wouldn't you, if 
you are going to err, why wouldn't you do that on the side of 
making sure you don't disenfranchise voters?
    Because after the fact, when you do disenfranchise you 
cannot undo it. Those people will not be allowed to vote. And 
it is still a very, very real possibility that the law would be 
set aside. I am just saying you all ought to always think in 
terms of not disenfranchising individuals, especially while you 
have pending litigation, and I would yield back.
    Ms. Lofgren. Thank you. The gentleman's time has expired. I 
am going to ask just a few questions, if I could. And just on 
the subject that has been discussed both by Mr. McCarthy and 
Judge Gonzalez. As I understand the question really posed by 
yourself, Chairman Rodriguez, is that the issue is whether the 
Federal law really preempts the State's opportunity to do what 
they are asserting to do by their proposition, which is the 
very same issue that is before the U.S. Supreme Court in the 
Indiana case, I think.
    As a matter of fact, I have offered an amicus brief with 
Senator Feinstein suggesting that, in fact, the Federal law 
does preclude the ability of States to do what Indiana 
attempted to do, and by extension, also the State of Arizona. 
And if I am hearing you correctly, correct me if I am wrong, 
you know reasonable people can differ, and apparently do on the 
Commission and in the country. The question is is that what has 
really caused the inability for the Commission to reach a 
conclusion on this, is the disagreement on how to view that 
legal question? Is that accurate?
    Ms. Rodriguez. That is Madam Chair. And I always thought 
that the Federal form and the whole NVRA process was to 
equalize procedures across the country so that any voter who 
wanted to participate in a Federal election knew what form to 
use and what to do. And in my opinion the Arizona requirement 
puts an additional burden on the voter in Arizona.
    Ms. Lofgren. If I could, I share your opinion, but the 
point I am trying to make is that the Supreme Court itself was 
trying come to grips with this. It is not a surprise. It is a 
difficult question that the Commission itself is trying to come 
to grips with this, and it is not easy to reach agreement in 
every case. So I think that is what has happened here.
    Ms. Hillman. Madam Chair, if I might just say, on that 
point, yes, it is true we have disagreement. And we were 
proceeding on the premise that we would be reviewing the 
regulations once transferred to EAC from the FEC. And then came 
the inability of FEC to take action because it doesn't have a 
quorum, so we are sort of stuck there. We continue to work this 
through. But there are two points I would make. It is my 
understanding that Federal agencies don't, unless there is some 
absolute emergency, promulgate regulations while a case is 
going on in court. That, generally speaking, it is prudent to 
wait until the case is over and the final judgment has been 
rendered.
    Secondly, under Federal law a form cannot be initially 
rejected if a voter turns it in incomplete. That form must be 
returned to the voter noting the incompleteness. So if under 
Arizona they receive a mailing form and they believe that it is 
within their right to ask for proof of citizenship they must go 
back to that voter before they can reject the voter's 
application.
    Ms. Lofgren. Commissioner Davidson, did you want to weigh 
in on this point?
    Ms. Davidson. Could I please. I completely agree with a lot 
of what has been said. But I think there is one thing that I 
think that has been brought up to date, is the State rights. 
And Commissioner Hillman is completely right, they do have to 
go back to the voter. But as time gets closer to that election 
is my concern. And then the voters, they don't know what the 
requirements are. Then there is possibly not time to get back 
to that voter, and that is the voters that I am very concerned 
about.
    Ms. Lofgren. Let me turn to another subject, because it 
really is the gist of the IG report, and really the attention 
that we gave to the Commission last year. We had administrative 
law experts testify before this Subcommittee and the EAC to 
discuss Federal administrative procedure requirements 
applicable to the Commission. And they were experts. And they 
had recommendations for EAC on implementation of various 
procedural regulations. Has that been helpful, have you been 
able to adopt some of the recommendations that those experts 
had made, have we had the training opportunities that were 
suggested on the Administrative Procedures Act implemented?
    Ms. Hillman. The answer to your question is yes, and yes. 
Yes, the suggestions were helpful. We have, in fact, retained 
consultants. You asked about the use of consultants. We need 
the expertise to help us cut through the bureaucracy of Federal 
Government. And we are in the process of having many of those 
written up for us and staff have been undergoing training, 
particularly in the issue of managing contracts.
    Ms. Hillman. Could I add one thing? Because of your meeting 
also and bringing those individuals in, we also had a hearing, 
a public hearing and brought in some of those same people to 
really discuss deeper of about what we needed, and that was 
very helpful also.
    Ms. Lofgren. That is great feedback to have. Just a last 
question. I believe that the EAC has created a new chief 
operating officer position. And I am interested in what are 
going to be the respective roles of the executive director, the 
chief operating officer and the general counsel after this 
person has been hired? And the, I don't know if this is 
accurate or not, but I received the impression that the general 
counsel had been undertaking functions that were unusual for a 
general counsel, broader than a traditional general counsel 
position.
    Will the filling of this new position change the alignment 
of the general counsel's position and will it be a more 
standard administrative structure after that.
    Ms. Rodriguez. I will take that, Madam Chair. The chief 
operating officer will report to the executive director. I 
think the general counsel is very relieved that we are going in 
this direction so that she doesn't have to double up and help 
with the budget as she had in the past. She is a statutory 
officer of the organization. So she will not report to the 
chief operating officer, she will continue to report to, he or 
she, whoever it is, shall continue to report to the executive 
director. But the chief operating officer will then have line 
reporting or other staff will have line reporting to the chief 
operating officer.
    Ms. Lofgren. All right. I am going to, before my cell phone 
goes off again, and hoping that we will get our regular 
lighting system replaced before our next hearing, we won't have 
votes for another few minutes, so we do have time. I know Mr. 
McCarthy had additional questions. I would like to recognize 
him for another 5 minutes. And we will go until we get called 
away to vote.
    Mr. McCarthy. I thank you, Madam Chair, for the kindness of 
letting us go. Let me touch base a little more on this Arizona 
issue, because I heard our colleague talk about 
disenfranchised. But I guess to Commissioner Hunter, it is my 
understanding, okay, this law has passed in Arizona, more than 
two years, so they have changed their voter registration in 
Arizona already, have they not?
    Ms. Hunter. Yes, sir, they have.
    Mr. McCarthy. So if I go to your Web site and I pull off 
that form and I fill it out, I am disenfranchised because I am 
going to get rejected by the Secretary of State, rightfully so, 
because of the law they passed. So by doing nothing you are 
disenfranchising. Am I seeing this wrong?
    Ms. Hunter. Well, you are not seeing it wrong. I think the 
Secretary of State, I am not sure about this, but I think she 
takes that form and then tries to ascertain the information 
from the voter. And so it is not rejected out of hand, but she 
has to go through an additional step. So it is obviously 
cumbersome, I would imagine, and it is not useful to provide 
information that is not accurate.
    I think there are other examples of States that are before 
the Commission now where it might even be more obvious that 
voters are disenfranchising. One example is that the address 
for the State of Colorado is inaccurate. And we know that the 
voter registration deadline in New Jersey is inaccurate. They 
have changed it from, I believe, it is 30 days to 21 days. And 
in Rhode Island, persons who are no longer incarcerated, even 
if they are still serving parole may now register to vote in 
Rhode Island.
    However, if they looked at our form they would not know 
that and they would think that the old law was still in effect, 
which would mean that they are not able to register unless they 
are either not incarcerated or not serving parole. So those 
examples, in a lot of ways, are clear examples of voters who 
will not be able to register by virtue of the fact that the EAC 
has not properly updated the State instructions portion of the 
form.
    Mr. McCarthy. That is disturbing to me.
    Ms. Hunter. Yes.
    Mr. McCarthy. I don't understand what those five that we 
talked about earlier that you just laid out, the same five, why 
that takes so long to get forward, and by doing nothing, we are 
disenfranchising people. When is your next meeting and why 
couldn't this be moved forward?
    Ms. Hunter. Our next meeting is next Wednesday in Denver, 
Colorado. And one of my colleagues alluded to the fact, and 
maybe she wants to address it, that Commissioner Hillman has 
proposed, I believe it is an up or down vote on each and every 
State request that is before the Commission. So these issues 
will be addressed next Wednesday.
    Mr. McCarthy. So we might be able to move forward even 
though someone waits 2 years?
    Ms. Hunter. Hopefully.
    Mr. McCarthy. But I am concerned because--maybe you can 
give a little better explanation to me about where we are in 
the court system. If the court system decides this does not 
have anything to do with the National Voter Registration Act 
which gives you the power to change, then why can't you move 
forward with Arizona?
    Ms. Hunter. Well, I don't think there is any reason that we 
shouldn't. Each from the day the lawsuit was filed--of course, 
there are many lawsuits that challenge many laws, both Federal 
and State all throughout the country. And if one were not to 
enforce a law just because it has been challenged in a court, 
that would obviously drastically change the dynamic of our 
system. So in my view even on the day that the lawsuit was 
filed that is not relevant with regard to our responsibility. 
Now, of course, if a court ruled the law unconstitutional, of 
course, we would immediately remove that from the form.
    Mr. McCarthy. There is a lot of laws I don't agree with. 
Most of them speeding laws, but I still abide by them until 
they are overturned.
    Ms. Hillman. If I might. For me it is not just about 
Arizona. The EAC has been criticized for taking actions without 
having in place proper procedures and policies. And what I have 
been pushing is that the EAC adopt from some very simple and 
clear procedures as to how we will consider requests from 
States for changes to the State instructions portion of the 
form. We have not been able to come to agreement on it. It is 
true that probably of the six or seven States that have 
requests before us Arizona is the, the Arizona request is the 
one that is the stickler. I requested that we separate those 
two and say let us continue discussing what the Federal law 
provides for, what NVRA provides for, what HAVA provides for, 
where this request fits under current regulations and move the 
others and we could not.
    I am reluctant to do case-by-case regulation, that is as a 
State request comes in, we vote it up or down. But I am also 
sensitive to the fact that unfortunately we have lost 3 good 
months since January trying to work this out, and it is time 
for us to move forward.
    Mr. McCarthy. But you have got--well, my concern is you 
have got Arizona there for 2 years, and what procedures would 
you have? Because you had four individuals, if two individuals 
want to say no we don't personally agree with that State, you 
can hold somebody up this whole time and disenfranchise a lot 
of voters. I think the procedure would have to be if you can't 
act then someone has to. If you can't come together and someone 
has been there 2 years going forward, you are disenfranchising 
a State, and I don't believe that is fair in the process. I 
yield back and I appreciate the Chair.
    Ms. Lofgren. The gentleman's time has expired. The 
gentleman from Texas, Mr. Gonzalez, is recognized.
    Mr. Gonzalez. I guess if you take any decision-making 
process and knowing that there is someone else making a 
decision that is subsequent to yours that could truly alter the 
consequence of your decision, I would think you would be very, 
very, very, very careful and choose that course of action that 
wouldn't do--in other words, it is just--yes, there is going to 
be harm either way. Let's say the court comes and sets it 
aside; there is going to be harm. Where is there less harm?
    And the question then comes: What are you trying to 
protect? And that is people that are not citizens from voting, 
and all of us would join you in that endeavor. It's how you go 
about doing it. What is the proof that you are requiring and so 
on? You can check off a box, you sign it. And if you are lying 
about your address, your residency, you are lying about 
citizenship or so, that could subject you to some sort of 
penalty. And then the reality of the situation. What do you 
have empirically out there that really would indicate that you 
have that kind of problem on such large scale that you would be 
willing to implement that right now before it's fully tried in 
the judicial system? What is this evil. What is this danger and 
who are you disenfranchising?
    I mean, those are really serious questions and where you do 
greater harm to the body politic and to the electoral system. I 
would hope that you would look at that. Now, is it fair to 
Arizona that it has been delayed and that it is being 
challenged? I mean, we could go on and on. But I think the 
reality of the situation is, you are going to do a lot greater 
harm by moving forward before you have some sort of judicial 
determination.
    I want to go on to another topic and something I wanted to 
cover. My staff indicated here, it says that mandated studies 
and reports have not been submitted by due dates, reports on 
registrations by mail, electronic voting, free absentee ballot 
postage and so on. And I am just assuming what we are talking 
about is some sort of reports being received by election 
authorities that had deadlines: Are they tardy, are they late, 
how late and when do you catch up?
    Ms. Hillman. Well, Congressman Gonzalez, some of the report 
due dates were required before the Commission was established. 
And in a couple of cases the scope of the project was such that 
we did finally get started on the free or reduced postage for 
absentee ballots voted. It took us a long time to find the 
consultants who could work with us on that. On the Social 
Security issue, the use of the Social Security number, we are 
having conversations with Social Security about how we wrap our 
arms around that study, and even Social Security is having some 
challenges coming to grips with it.
    So there are a couple of studies that because of the unique 
nature of the issue we have been a bit challenged to find the 
resources we need so that we could move forward. With respect 
to some of the other studies it is what the inspector general 
identified earlier. We had staff multi-tasking all over the 
place. And we realized that we were asking the staff to perform 
outside their areas of expertise, but we had no choice. We had 
to hit the ground running. And to a question that was asked 
earlier, HAVA envisioned that GSA would provide certain 
administrative support services to EAC, they could not do that. 
They just structurally did not have the human resource capacity 
to assist us.
    There was no one place we could go. I personally harassed 
the Office of Personnel Management for over a year to help us 
to put together our human resources manual. They said that is 
not their job. And we said we have nowhere else to go. They 
finally capitulated and worked with us on it, and once we got 
started we were able to complete the project. I have been 
astounded how difficult it is to get the information you need. 
It would be nice to be able to go to an agency, get their 
document and say let us use this as our document. But then we 
have to apply it to our unique situation and go through that 
process.
    One thing I have learned my two tours of duty with Federal 
Government, if you don't know the right question to ask, you 
will never get the information and you don't know what you 
don't know until you hit that brick wall and you say darn, what 
is this now? So it has been a very interesting experience 
getting a brand new agency started, particularly since we had 
such immediate deadlines like the 2004 presidential, the 2006 
general and now the 2008 with many, many things to do. So it is 
true that a couple of the studies are behind date, but we are 
pushing ahead.
    Mr. Gonzalez. Thank you very much. I yield back.
    Ms. Lofgren. The gentleman yields back. I am just 
wondering, I don't know if you know the answer to this today, 
but about the funds provided for covered jurisdictions to meet 
their requirements under Section 203 of the Voting Rights Act, 
are funds sufficient to meet those needs of limited English 
proficient voters in that section? Do we need to address that 
in terms of our budget here? Anybody who knows the answer or 
you can get back to me.
    Ms. Hillman. We will get back to you. We don't have 
jurisdiction over that. And to my knowledge since I have been 
on the Commission jurisdictions have not spoken to us directly 
about the need for more funds. We are assisting in many ways by 
providing as many materials as we can in different languages so 
the election officials can just use them right away and not 
have to do their own work.
    Ms. Lofgren. Has there been consideration of an EAC study 
on language accessibility throughout the country in addition to 
those jurisdictions that are subject to the Voting Rights Act?
    Ms. Hillman. We are working on that. And what we are doing 
is as we are working on it, we are producing whatever documents 
we can. And so we haven't yet determined what the final report 
to Congress should be on that issue, but we are looking at the 
issue and producing what materials we can and identifying what 
the challenges are that the officials have.
    Ms. Lofgren. Okay. Yes, Commissioner Davidson.
    Ms. Davidson. We have even had one of our staff individuals 
that has actually attended a conference for the nonspeaking 
languages that was held in New Mexico, I believe.
    Ms. Lofgren. You mean unwritten language?
    Ms. Davidson. You are absolutely correct, the unwritten 
languages. And so we are interested even in that area of the 
arena of it, so that we can at least do some best practices or 
the quick starts and at least get that out as quickly as 
possible.
    Ms. Lofgren. Well, all those bells and whistles mean that 
we have votes on the floor of the House. And I would like to 
thank all the Commissioners for being here today and for your 
testimony and answering our questions. We may have additional 
questions which we will send to you if we do and ask that you 
answer them as promptly as you can. I just will say I was 
talking about language accessibility.
    I can still say this for only one more year, that I was on 
the Board of Supervisors in Santa Clara County longer than I 
have been in the House of Representatives, and one of our 
obligations was to oversee the registrar of voters. And it is 
chaos, but it is a wonderful responsibility. And one of the 
things we did when I was in local government was to go beyond 
what was required of us on language accessibility, because 
especially in California you have these initiatives. They are 
so complicated.
    And I will never forget a very elderly gentleman came and 
he spoke to us in English, but with a pretty heavy accent, and 
he thanked us for making available to him information. He said 
for the first time I get to vote the way I want instead of the 
way my son tells me to. So it is very important, and I hope 
that we can get the results of that study. At this point our 
hearing is--yes, Ms. Rodriguez.
    Ms. Rodriguez. Thank you, Madam Chair. I just wonder if we 
might supplement the record with a little bit more information 
about some of the gaps that we left in our responses?
    Ms. Lofgren. That would be absolutely fine. Just get it to 
the staff. And again, thank you so much for being here. We look 
forward to additional progress, and this hearing is adjourned.
    [Whereupon, at 4:57 p.m., the subcommittee was adjourned.]
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