[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
LESSONS LEARNED FROM THE
2004 PRESIDENTIAL ELECTION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
----------
JULY 24, 2008
----------
Serial No. 110-199
----------
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
LESSONS LEARNED FROM THE
2004 PRESIDENTIAL ELECTION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 24, 2008
__________
Serial No. 110-199
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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JULY 24, 2008
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 4
WITNESSES
Mr. J. Kenneth Blackwell, Ronald Reagan Distinguished Fellow, The
Buckeye Institute for Public Policy Solutions
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Daniel P. Tokaji, Associate Professor of Law and Associate
Director, Election Law, The Ohio State University, Michael E.
Moritz College of Law
Oral Testimony................................................. 58
Prepared Statement............................................. 60
Cleta Mitchell, Esq., Partner, Foley & Lardner, LLP
Oral Testimony................................................. 67
Prepared Statement............................................. 133
Ms. Gilda R. Daniels, Assistant Professor of Law, University of
Baltimore School of Law
Oral Testimony................................................. 165
Prepared Statement............................................. 167
Mr. Hans A. von Spakovsky, Visiting Scholar, The Heritage
Foundation
Oral Testimony................................................. 172
Prepared Statement............................................. 174
Mr. J. Gerald Hebert, Executive Director and Director of
Litigation, The Campaign Legal Center
Oral Testimony................................................. 189
Prepared Statement............................................. 191
APPENDIX
Material Submitted for the Hearing Record........................ 235
LESSONS LEARNED FROM THE
2004 PRESIDENTIAL ELECTION
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THURSDAY, JULY 24, 2008
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:26 p.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Davis, Wasserman Schultz,
Ellison, Conyers, Scott, Watt, Franks, and Jordan.
Staff Present: David Lachmann, Subcommittee Chief of Staff;
LaShawn Warren, Majority Counsel; Caroline Mays, Majority
Professional Staff Member; and Paul Taylor, Minority Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order.
Without objection, the Chair is authorized to declare a
recess of the hearing. We will now proceed to Members' opening
statements. As has been the practice in the Subcommittee, I
will recognize the Chairs and Ranking Members of the
Subcommittee and of the full Committees to make opening
statements. In the interest of proceeding to our witnesses and
mindful of our busy schedules, I would ask that other Members
submit their statements for the record.
Without objection, all Members will have 5 legislative days
to submit opening statements for inclusion in the record.
The Chair now recognizes myself for 5 minutes for an
opening statement.
Today's hearing looks at the way in which the Nation
administers its elections, the way we go about ensuring the
integrity of our elections, and the means we use to ensure that
the right of all eligible voters to cast their votes, and have
those votes counted in an environment that is free from
intimidation, is protected.
Unfortunately, we have not always done a very good job
administering our elections in a manner that we expect of other
nations. If the result was solely disenfranchisement of large
numbers of people, that would be bad enough. Unfortunately, we
have now seen in the past two Presidential elections that the
public no longer has confidence that our elections are truly
fair and that the results are accurately reflected in the final
vote tally. The former is a violation of our values, our laws,
and our Constitution. The latter threatens the very foundation
of our Democracy. If the public cannot be assured that our
elections are free and fair, the results rightly or not, will
always be suspect. The outcome, especially in a close election,
could lose its legitimacy. That would be catastrophic, not just
for the individuals whose right to vote was lost or impaired
but for the entire Nation.
Today this Subcommittee looks at some of the problems we
have encountered in past elections, and we will explore
possible solutions to those problems. It is unfortunate that
the Federal agency charged with the administration of our
election laws, especially the Voting Rights Act, which this
Committee crafted and just extended 2 years ago, declined to
send a witness today. It is absolutely imperative that this
Committee ensure that the department is focused on threats to
the right to vote and has a plan to meet those threats
effectively.
The Election Assistance Commission, which Congress
established as part of the Help America Vote Act, has provided
a great deal of information and proposals on how to run our
elections better. It would have been good to hear from the
Department of Justice about those proposals, what the reaction
of the voting section to those proposals is, and what steps the
DOJ is taking to follow up. We will pursue these questions as
well.
Serious flaws in an election cannot be dealt with after the
fact. A person who is disenfranchised can never get that vote
back. An election rendered suspect by voting rights violations
will remain suspect. That is unacceptable, and I hope the other
Members of Committee on both sides of the aisle will join me in
demanding that DOJ, the Department of Justice, fully respond to
our questions on these important matters.
We are joined today by the former Secretary of State of
Ohio, Mr. J. Kenneth Blackwell, to discuss the very
controversial election held in that State in 2004 when he was
that State's chief election officers. Make no mistake, although
the Ohio case has been closely examined and hotly debated over
the last 4 years, it is far from unique. Many of the issues
that arose in Ohio are symptomatic of problems encountered
around the country.
Four years ago, Members of this Committee asked the then
majority to conduct hearings into the 2004 elections. The
majority at that time had other issues it deemed more
important. Nonetheless, we must confront these problems and
seek solutions even 4 years after the fact. At that time,
Chairman Conyers conducted his own unofficial inquiry,
including questions for Mr. Blackwell to which we never
received a response. I hope we can conduct today a forward-
looking and problem-solving hearing. We owe the voters no less.
I want to welcome our witnesses. I look forward to your
testimony. And I must add at this point that we will have two
panels today. The first one is sitting in front of us. And I
look forward to hearing the testimony of all the witnesses.
I yield back the balance of my time.
I would now recognize for an opening statement our
distinguished Ranking minority Member, the gentleman from
Arizona, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, voting is the life blood of a democracy.
There are no legitimate leaders in a democracy without
legitimate elections. And as we begin this discussion today, I
would like to draw everyone's attention to a letter that was
sent earlier this year to the Nevada State Democrat party that
I believe illustrates the challenges that are in many kinds of
elections. I point to this letter simply because it illustrates
the confusion that can occur and the doubt that can be
generated when we either do not have a clear means of verifying
legal voters or when existing voting laws appear to go
unenforced.
This letter was sent by the Hillary Clinton for President
campaign, and it requests an investigation into voter
suppression regarding actions taken by the Obama Presidential
Election campaign. Let me quote from that letter from the
Clinton campaign.
The letter states: ``The Clinton campaign wishes to bring
to your attention information we have received evidencing a
premeditated and predesigned plan by the Obama campaign to
engage in systematic corruption of the party's caucus
procedures. Compounding this blatant distortion of the caucus
rules was an egregious effort by the Obama campaign to
manipulate the voter registration process in its own favor,
thereby disenfranchising countless voters.''
They list caucus chairs obviously supporting Obama
deliberately miscounted votes to favor Senator Obama;
deliberately counted unregistered persons as Obama votes;
deliberately counted young children as Obama votes. Many
Clinton supporters were threatened with employment termination
or other discipline if they caucused for Senator Clinton.
Now, it seems to me, of course, that depending on the facts
of the case in each instance, these instances may constitute
any number of serious violations of Federal elections laws.
And now I would like to, Mr. Chairman, read a letter that
the Obama campaign sent around the same time to the Nevada
Democrat party alleging that Clinton campaign workers are,
``turning our supporters away by asking to see their IDs and
telling them they aren't valid.''
Now that is particularly unsettling since such abuse could
be remedied if there were a single secure universally
recognized and accepted voter ID. My own State of Arizona
enacted just such a law.
Public support for secure voter ID remains very strong,
according to Washington Times: ``Support for the concept is
overwhelming,'' said Scott Rasmussen. ``More than three-fourths
of Republicans supported showing identification, as did 63
percent of Democrats and Independents, 58 percent of Blacks, 69
percent of Whites and 66 percent of other ethnic or racial
minorities backed the concept.''
A recent survey conducted by the nonpartisan Congressional
Research Service found that two-thirds of local election
officials believed that voter identification requirements will
make elections more secure. The recent experience under
Indiana's voter ID law, which was recently upheld by the
Supreme Court in an opinion that was offered by famously
liberal Justice Stevens shows that such laws do not diminish
voter turnouts. Rather they can increase voter turnout by
giving legal voters the security of knowing that their vote
will be counted and that it will not be negated by the vote of
someone voting illegally. Indeed, the recent elections in
Indiana went very smoothly by all accounts.
I also want to point out that when the Indiana voter ID law
was challenged by opponents in the Supreme Court, it turned out
that the lead plaintiff in that case had been illegally
registered to vote in two different States.
Now I know duel voting registrations can often be innocent
mistakes, but they are mistakes nevertheless, and they can
invite voting fraud by others, and they should be brought
forward and corrected.
That the exploitation of gaps in the voting system to
facilitate voting fraud is a problem today cannot be plausibly
denied.
Just since our last hearing on this subject a few months
ago, the New York Times reported that a Democratic district
attorney in Alabama has called for a Federal investigation into
voting irregularities there. And the Times article itself
quotes several individuals who admit on the record that they
have been paid for their vote and that the practice is ``pretty
common.''
And a special investigations unit in Milwaukee issued a
report that found evidence of illegal voting in which ``persons
had to commit multiple criminal acts in an effort to reach
their ultimate goal of voting.''
The same report concluded that ``the reports of more
ballots cast and voters recorded were found to be true.'' The
report then states that the only reason prosecutions weren't
pursued was because election records were so poorly maintained.
The Supreme Court itself recognized the problem of voting fraud
in its Crawford decision in April.
Mr. Chairman, it's important to all of us to know that,
when we vote, that the process will be fair and just and
accurate. I think that it not only lends great credence to our
system, but it avoids some of the challenges that other
countries have demonstrated, like Mexico, to where their entire
elections are called into question because people do not have
confidence in the system.
So, with those concerns in mind, I look forward to hearing
from all of our witnesses today and to exploring what Congress
can do to help maintain the integrity of the election process.
I want to thank all of our Nation's election officials,
including Kenneth Blackwell, who so nobly and ably served the
State of Ohio as Secretary of State.
Thank you, Mr. Chairman.
Mr. Nadler. I thank you.
I want to welcome our distinguished panel of witnesses
today, at least our first panel of witnesses today. Before we
begin, we have an opening statement by the distinguished
Chairman of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Nadler and Ranking Member.
This is an important hearing, because we've had so much
controversy about the appropriateness and fairness of our
election process starting with the year 2000, where the Supreme
Court intervened in a Presidential outcome for the first time
in American history. Then we had 2004, in which we had a huge
amount of controversy following the outcome of the Ohio
election vote, which determined the Presidency of the United
States that year.
But in between those elections and even now, there were
Federal elections that have been in controversy as well. And so
it is important that we note Chairman Nadler's comment; we get
little or no cooperation from the Department of Justice, the
election section, where the security and confidence of the
balloting process, the electoral process, is monitored and
enforced.
First of all, we can't even get a witness here from that
section from the Department of Justice. And that leads to
people being suspicious about what's up. Will this process of
disputed balloting continue on, or is this just an Attorney
General that's preoccupied with other matters? Why can't we
appreciate that in a year where we're going to have an
acknowledged record turnout of new voters, we can't even get a
representative from the Department of Justice to tell us what's
happening?
So this lack of communication is very serious. And I'm very
concerned that we're going to get the same kind of song and
dance that frequently issues from the Department of Justice,
namely, ``we're on it; we've got people working on it; we're
concerned; we're going to try to do a good job; do not worry.''
Whenever any complaints arise, everything will be okay.
Well, everything is not going to be okay because coming up
on the back end of the problem is a lot different from being
proactive and dealing with the problems that can easily be seen
in advance.
The other question we're trying to get to the bottom of is,
how much of the Department of Justice's resources are allocated
to making sure that this is the fairest election we've had in
many years? That we've got to find out as well.
And so it is with great enthusiasm that I look forward to
the witnesses that are here. We note that the former Secretary
of State of Ohio who lead the election process in that State is
present with us voluntarily, and we appreciate that very much.
We're looking forward to the hearing.
And thank you, Chairman Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Nadler. Before we begin, it is customary for the
Committee to swear in its witnesses. If you would please stand
and raise your right hand to take the oath.
[Witnesses sworn.]
Mr. Nadler. Thank you.
Let the record reflect that the witnesses answered in the
affirmative.
You may be seated.
Without objection, your written statements will be made a
part of the record in their entirety. We would ask each of you
to summarize your testimony in 5 minutes or less. To help you
keep time, there is a timing light at the table. When 1 minute
remains, assuming the system operates properly, the light will
switch from green to yellow, and then to red when 5 minutes are
up.
It is customary at this point for me to read the short
biographies of the witnesses, of the first panel, but I don't
seem to have them here. So when they arrive, we'll perhaps go
into them at this point.
But our first witness is Mr. Kenneth Blackwell, who is the
former Secretary of State of Ohio, as well as other things I
would have mentioned had I had his biography here.
Mr. Blackwell.
TESTIMONY OF J. KENNETH BLACKWELL, RONALD REAGAN DISTINGUISHED
FELLOW, THE BUCKEYE INSTITUTE FOR PUBLIC POLICY SOLUTIONS
Mr. Blackwell. Thank you, Mr. Chairman and good afternoon
to you and Members of the Committee.
I am here today at the Committee's request to speak to the
issues of or the issue of, Lessons Learned in the 2004
Election. I testify today in my capacity as a private citizen.
In my estimation and in that of most independent observers,
Ohioans were well served by their State and local elections
officials in 2004. I personally thank each of them for their
exemplary service.
The State of Ohio received more than its fair share of
attention during the long campaign leading to the November 2nd
election of that year. With the prospect of a close contest for
the State's 20 Electoral College votes, Ohioans experienced an
unprecedented media blitz and an energetic set of drives to
register voters, which produced nearly 1 million new voters.
As election day approached, attorneys from both sides were
in position, combing Ohio's election rules for provisions that
would help them and their associates and watching the process
for errors that might inevitably occur.
Let me quote one succinct statement about that outcome:
``Overall, Ohio has a good system. Like any system, if you
scrutinize it enough, you're going to find weaknesses.'' This
quote is fromDon McTigue, a Democratic lawyer who worked in the
Secretary of State's Office in a previous Administration and
who was deeply involved in the election and its aftermath.
I happen to agree with Mr. McTique. Overall, Ohio has a
good system, and it performed under extraordinary stress. And
yes, it has some weaknesses, and I have spoken to some of those
in my prepared remarks that I have submitted for the record.
But, first, I am compelled to speak to the fabrications,
the exaggerations that some who disliked the fact that their
Presidential candidate lost Ohio keep repeating. Unlike Mr.
McTigue, they dismiss evidence and simple explanations and the
word of fellow Democrats when the intimidation or the
intimation of some vast conspiracy to steal the election is so
much more exhilarating.
Our 88 bipartisan County Boards of Elections provides the
checks and balances that make it virtually impossible for
either party to rig an Ohio election from the inside. They
decide on the distribution ratios of voting equipment. They
decide the location of polling stations. And they select the
voting equipment used in their counties from a list of
equipment certified by the Secretary of State's Office. All of
these safeguards ensure that local concerns about access to
polling stations and equipment are handled locally and that
both parties have a say in the final decisions. The Secretary
of State's Office collects and certifies the final outcome.
In sum, I do not believe that it is a good use of a
Committee's time or my own to rehash the details of the most
thoroughly vetted election in recent memory. But I did not want
to miss this opportunity to give credit to the more than 50,000
Ohioans who worked hard to make the 2004 election one of the
most fair and accessible in the State's history.
In my prepared remarks, I give you roughly nine lessons,
eight lessons that were learned. Let me focus on one in my
remaining few minutes, and that is the long lines in Franklin
County. It is so important that we deal with this, because this
is the imagery that has come to represent the entire election
process in the State of Ohio.
Close elections and hotly contested issues mean big
turnouts. Boards of Elections around the country and in Ohio
use turnout figures or should use turnout figures from 2004 to
better anticipate precinct-by-precinct demand on voting
equipment. In Ohio, in Franklin County, we had too few voting
machines to accommodate the demand that was a historic demand.
County Boards of Election are made up of Democrats and
Republicans. In 2004, the chairman of the Franklin County Board
of Election was African-American, a labor leader, a civil
rights activist, and a Democrat. And they made a decision on
the distribution of voting machines based on how many machines
they had and historic data. Those considerations were
insufficient for the record turn out, and we had long lines.
I must give them credit for accommodating a highly stressed
system under those circumstances, but they did it, and let me
say that there was a record turnout of African-American voters.
There was a successful account of the vote in Franklin County,
and I think it speaks to the local control and the bipartisan
Boards of Elections that we have.
I know that there are those who would disagree, but that's
what these sort of conversations are for.
Thank you very much.
[The prepared statement of Mr. Blackwell follows:]
Prepared Statement of J. Kenneth Blackwell
Mr. Nadler. Thank you.
Our second witness is Dan Tokaji. Dan Tokaji is the
associate professor of law and the associate director of
election law at the Ohio State University's Moritz College of
Law. His recent publications include, ``Early Returns on
Election Reform: Discretion, Disenfranchisement, and the Help
America Vote Act,'' which examines litigation surrounding the
2004 election; and ``The Paperless Chase: Electronic Voting and
Democratic Values,'' which analyses the legal issues arising
out of the transition from paper-based electronic voting
technology.
Prior to arriving at the Moritz College of Law, Professor
Tokaji was a staff attorney with the ACLU Foundation of
Southern California. He has appeared before several Federal and
State courts, including the California Supreme Court and the
United States Court of Appeals for the Sixth and Ninth Circuit.
Mr. Tokaji.
TESTIMONY OF DANIEL P. TOKAJI, ASSOCIATE PROFESSOR OF LAW AND
ASSOCIATE DIRECTOR, ELECTION LAW, THE OHIO STATE UNIVERSITY,
MICHAEL E. MORITZ COLLEGE OF LAW
Mr. Tokaji. Thank you, Mr. Chairman, and Members of the
Committee.
My remarks today will focus on election administration
problems that arose in the course of the 2004 election,
particularly in Ohio. I also want to draw some broader lessons
from the experience of my State of Ohio and other States in
2004 and subsequent years.
I'll refer the Members of the Committee to my written
testimony for more expansive thoughts on what needs to be done
in the forthcoming election season to make sure that everyone's
right to vote is protected, including the steps that the United
States Department of Justice ought to be taking but hasn't for
the most part taken during the current Administration.
First, Ohio's experience in 2004. On the morning of
November 3rd, 2004, President Bush lead Senator John Kerry by
approximately 136,000 votes out of 5.6 million cast in Ohio,
the decisive State. This margin was sufficient to overcome any
legal challenges that might have arisen from provisional
ballots that were uncounted, ambiguously marked ballots and
long lines that undoubtedly kept some citizens from voting.
Had the margin been closer in Ohio, however, we almost
certainly would have seen a replay of the battles that
culminated in Bush vs. Gore. With the Buckeye State rather than
the Sunshine State as the backdrop, Mr. Blackwell playing the
role of former Secretary of State of Florida Katherine Harris
and provisional ballots replacing or supplementing punch card
ballots as the dominant prop.
Despite the fact that there was no post election meltdown
in 2004, there is no doubt that there was and that there
remains significant room for improvement in the functioning of
our election system. And it is clear that State and local
officials in Ohio and elsewhere could have done a better job at
implementing the requirements of State and Federal law.
I've talked about seven areas in which there were
significant problems in Ohio in my written testimony today. I
discuss that in greater detail in my law review article that
I've asked be supplemented to my testimony.
Let me just focus on a few of those in the time that I have
left. First, voting technology. Ohio was still using punch card
ballots in the 2004 election. That probably cost about 44,000
to 77,000 votes throughout the State.
Second, voter registration. There was a great deal of
controversy over Secretary of State Blackwell's directive that
voter registrations only be accepted if they were on 80 pound,
that's heavy stock, paperweight. That directive was ultimately
reversed under pressure.
Provisional ballots. This was a huge issue in 2004. I
expect it is going to be a significant issue in 2008 again. One
of the big controversies was so-called wrong precinct
provisional ballots; that is provisional ballots cast in the
wrong precinct. Secretary of State Blackwell issued a directive
on this that was, for the most part, upheld in the courts.
There were also significant issues having to do with
challenges to voter eligibility. A Federal District Court in
Ohio issued an order against Secretary Blackwell and other
election officials restraining pre-election challenges. There
were also four different cases challenging election day
challenges. Four courts issued orders. All of those however
were ultimately stayed as late as election day.
Finally, what lessons can we draw on this? I set forth four
in my written testimony. I'm going to just describe them very
briefly here given the time.
First, there is a need for clear and transparent rules
issued well in advance of the election. One of the big problems
that we had in Ohio in 2004 were that there were a lot of
directives being issued by the Secretary of State's Office
within weeks or, in some cases, even days of the election that
contributed to an atmosphere of confusion, not only among
voters and voting rights groups but also among local election
officials.
Second, partisanship in election administration remains a
serious problem. Here I want to go beyond individual
personalities. My goal today is not to demonize Secretary of
State Blackwell or any other election official but to focus on
an institutional problem. We have a situation in most States in
which the chief election official is elected as a partisan
official. It is not just that the umpire has a stake in the
game; the umpire is actually a player for one of the teams. And
as long as we have this situation in our States, we're going to
continue to have accusations of partisanship leveled against
chief election officials and election officials generally,
Democratic or Republican.
Third, litigation can play an essential role in protecting
voters rights and promoting sound election administration,
including equality, and I think that was certainly true in the
lawsuits that were brought against Secretary Blackwell in Ohio
and lawsuits brought in other States. They did, in fact, have a
significant effect in protecting voters rights, as I explain in
greater detail in my written testimony and in my law review
article.
Fourth, election reform remains a work in progress. I would
urge that we make our decisions in the future election reform
not based on rhetoric or the latest media story but on sound
data and research. And I fear that our election reform agendas
have too often been informed by exaggerated, sometimes
hyperbolic claims of fraud. That's true on both the left and on
the right. On the left, it has often been accusations of stolen
elections, rigged elections, sometimes voting machines. On the
right, it has been exaggerated allegations of voters cheating.
In fact, if you look at Indiana, a State that was mentioned
earlier, in the Supreme Court's opinion, it notes that there
was not a single documented instance in that State of voter
impersonation, of voters going to the polls pretending to be
someone they are not, the only problem that the voter
identification law in that State would address.
I'll close my testimony there. I would be happy to take any
further questions that the Committee has.
[The prepared statement of Mr. Tokaji follows:]
Prepared Statement of Daniel P. Tokaji
July 24, 2008 My name is Daniel Tokaji. I am an Associate Professor
of Law at The Ohio State University's Moritz College of Law, and
Associate Director of Election Law @ Moritz, a group of legal scholars
whose mission is to provide reliable, nonpartisan analysis of election
law matters.\1\ In addition, I am a co-author of the forthcoming
edition of the casebook Election Law: Cases and Materials (4th ed.
2008). My research and scholarship focuses primarily on voting rights
and election administration. I am honored to appear before you today.
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\1\ My affiliations with the University, the College of Law, and
Election Law @ Moritz are provided solely for purposes of
identification. This testimony is offered solely on my own behalf.
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My remarks today will first address the election administration
problems that arose in the course of Ohio's 2004 presidential
election.\2\ I will then discuss some broader lessons from Ohio's
experience in 2004 and subsequent years. I close with some thoughts on
the proper role for the U.S. Department of Justice in this election
season.
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\2\ I have attached a copy of my article ``Early Returns on
Election Law: Discretion, Disenfranchisement, and the Help America Vote
Act,'' 73 Geo. Wash. L. Rev. 1206 (2005), which discusses these issues
at greater length than does this testimony.
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For reasons that I shall explain, there are reasons to be worried
about how well the election infrastructure of Ohio and other states
will bear up to the pressure that will undoubtedly be put upon it this
year. Of particular concern are state voter registration systems and
the procedures for provisional voting. If these procedures are not
functioning properly, many voters are at risk of not having their votes
counted. In addition, it is likely that voters in different counties or
municipalities within a state will receive inconsistent treatment,
raising equal protection concerns. Registration and provisional voting
problems also exacerbate the risk of post-election litigation over the
result, as occurred in Florida in 2000 and as nearly occurred in Ohio
in 2004. Finally, partisanship in the administration and enforcement of
voting rules--at the local, state, and federal level--continues to pose
a significant threat to the integrity of elections across the country.
ohio's experience in 2004
On the morning of November 3, 2004, President George W. Bush led
Senator John Kerry by approximately 136,483 votes out of some 5.6
million cast in Ohio, the state upon which the presidential race
ultimately turned. This margin was sufficient to overcome any legal
challenges that might have arisen from uncounted provisional votes,
ambiguously marked punch card ballots, and lengthy lines that may have
discouraged many citizens from voting. But had President Bush's
morning-after lead been a quarter or perhaps even half what it was, a
replay of the legal battles that culminated in Bush v. Gore--with the
Buckeye State rather than the Sunshine State as the backdrop, Ken
Blackwell playing the role of Katherine Harris, and provisional ballots
replacing punch-card ballots as the dominant props--would probably have
ensued.
Despite the fact that there was no post-election meltdown in 2004,
there remains significant room for improvement in the functioning of
our election system. It is clear that state election officials, in Ohio
and elsewhere, could have done a much better job at implementing the
requirements of federal and state law. The issues that generated
controversy and litigation during the 2004 election cycle included
voting technology, voter registration, provisional voting, voter
identification, challenges to voter eligibility, and long lines at the
polling place. I will discuss each of these trouble spots in turn.\3\
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\3\ Documentation for the information set forth below, including
references to cases and other relevant materials, may be found in my
article ``Early Returns on Election Reform,'' 73 Geo. Wash. L. Rev. at
1220-39.
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Voting Technology. Studies conducted in the wake of the 2000
election demonstrated significant problems in the machinery used to
cast votes.\4\ By 2004, many states had made the transition to new
technology which reduces the rate of votes lost due to overvotes and
undervotes. There is evidence showing that approximately 1,000,000
votes were saved nationwide in 2004, due to the transition to better
technology and better procedures.\5\ Unfortunately, Ohio was not among
those states. Approximately 72% of Ohio's voters continued to use the
very same type of punch card voting equipment that Florida had used in
2000. My estimate is that between 44,000 and 67,000 Ohioans who voted
in November 2004 did not have their votes counted due to the use of
unreliable voting equipment. These are votes that would have been
counted, if better equipment had been in place.
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\4\ For a summary of this research, see Daniel Tokaji, ``The
Paperless Chase: Electronic Voting and Democratic Values,'' 73 Fordham
L. Rev. 1711, 1754-68 (2005).
\5\ Charles Stewart III, ``Residual Vote in the 2004 Election,'' 5
Election L.J. 158 (2006).
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The good news is that Ohio has since replaced its equipment with
newer technology that gives voters notice and the opportunity to
correct errors, and thus reduces lost votes. The bad news is that Ohio
has had difficulties with some of its new voting technology. The
state's largest county, Cuyahoga, which encompasses the Cleveland era,
will be moving to a precinct-count optical scan system in November's
election. This will be the fourth system it has used since the 2004
election. It is worrisome, to say the least, that such a large and
important county has had such difficulty in making the transition to
new technology and that it will be using a new system for the first
time in this critical election.
Voter Registration. In the weeks leading up to November 2, 2004,
several issues arose relating to the handling of registration forms.
Among the issues was what to do with registration forms in which boxes
had been left unchecked, or in which certain identifying information
had been omitted. But the most intense controversy concerned Secretary
of State Ken Blackwell's September 2004 directive requiring that Ohio
registration forms be printed on ``white, uncoated paper of not less
than 80 lb. text weight'' (i.e., the heavy stock paper). Under this
directive, forms on lesser paper weight were to be considered mere
applications for a registration form, rather than a valid voter
registration.
Although the Help America Vote Act of 2002 (``HAVA'') is silent on
the question of the paper-weight of registration forms, voting rights
advocates argued that the directive violated the federal law, which
requires that ``[n]o person acting under color of law'' may deny a
person the right to vote ``because of an error or omission on any . . .
paper relating to any . . . registration . . . if such error or
omission is not material in determining whether such individual is
qualified under State law to vote in such election.'' \6\ Some local
election officials stated their intent to accept registration forms
regardless of the paper weight on which they were printed, despite
Blackwell's directive. In the face of these objections, Secretary
Blackwell's office backed down and, in late September, announced that
registration forms on ordinary-weight paper should still be processed.
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\6\ 42 U.S.C. Sec. 1971(a)(2).
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Provisional Voting. The implementation of provisional voting was
arguably the story of the 2004 election. Title III of HAVA requires
provisional ballots to for those eligible voters who, due to
administrative error or for some other reason, appear at the polls on
election day to find their names not on the official registration list.
Ohio saw significant controversy over provisional voting in 2004.
The issue that garnered the most attention is whether provisional
ballots may be cast or counted if the voter appears in the ``wrong
precinct.'' In several states, this issue resulted in litigation. In
Ohio, Secretary of State Blackwell issued a directive in September
2004, providing that voters would not be issued a provisional ballot,
unless the pollworkers were able to confirm that the voter was eligible
to vote at the precinct at which he or she appeared. A federal district
court issued an injunction against this order, on the ground that
Secretary of State Blackwell's directive failed to comply with the
requirements of HAVA. This injunction was affirmed in part and reversed
in part on appeal. The Sixth Circuit upheld the district court's order,
insofar as it found that the Secretary of State had not fully complied
with HAVA by requiring pollworkers to determine ``on the spot'' whether
a voter resided within the precinct and by denying those not determined
to reside within the precinct a provisional ballot altogether. But the
Sixth Circuit concluded that HAVA did not require provisional ballots
to be counted if cast in the wrong precinct.\7\
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\7\ Sandusky County Democratic Party v. Blackwell, 387 F.3d 565
(6th Cir. 2004).
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Although the ``wrong precinct'' issue received the most attention,
it was one of a number of issues surrounding provisional voting that
emerged in 2004. Among the others was the question of whether voters
should be allowed to cast a provisional ballot, if they had requested
but had not received or voted absentee ballots. This also led to
litigation, with a federal court in Lucas County ordering that these
voters must be given provisional ballots (White v. Blackwell). There
was also litigation over the standards used to count provisional
ballots. On Election Day 2004, a lawsuit was filed challenging the lack
of clear standards for determining which provisional ballots should be
counted. This case relied on Bush v. Gore, for the proposition that a
state must set clear voting rules in advance of an election, to avoid
unequal treatment of voters from county to county. The case (Schering
v. Blackwell) was ultimately dismissed after it became clear that it
would not affect the result of the 2004 election. It is quite possible,
however, that the issue of unclear standards for counting provisional
ballots could arise again in future elections.
Voter identification. Related to the controversy over provisional
voting were issues regarding voter identification. HAVA includes a
requirement that first-time voters who registered by mail show some
type of identification. That may include a photo ID or another document
(like a utility bill, bank statement or government document) with the
voter's name and address. There are at least two ambiguities in the
law, however, that emerged in 2004. The first is precisely what sort of
documents qualify. The second is what happens to voters if they do not
present the required ID when they appear at the polls. In 2004,
Secretary Blackwell issued a directive that provisional ballots would
be counted only if voters produced the required information by the time
the polls closed. That directive was challenged in court by the League
of Women Voters and other groups. In response, the Secretary of State
softened his position, stating that provisional ballots of those
lacking ID would be counted if voters either presented documentary
proof of identity or provided their driver's license or last four
digits of their social security number by the end of the voting day.
Challenges to Voter Eligibility. Another major issue that emerged in
the weeks preceding the 2004 general election was the challenge process
for questioning voter eligibility. Many people, particularly in
communities of color, saw these challenges as part of a concerted
strategy of voter intimidation. Some were also concerned that these
challenges would be used to tie up polling places, particularly in
heavily populated urban areas.
In Ohio, civil rights advocates and the Democratic Party went to
court to challenge the challenges. A federal district court issued an
injunction barring pre-election challenges of some 23,000 voters. In
addition, there were four separate lawsuits concerning election-day
challenges to voter eligibility. These cases produced a dizzying series
of court orders and appellate proceedings, leading up to and even
extending into election day. Four different trial judges issued orders
limiting the challenges, yet each of these court orders was reversed on
appeal--one of them on the afternoon of November 2, election day.
There was an undeniably partisan dimension to much of the
disagreement over challenges to voter eligibility, with Republicans
asserting the need to prevent voter fraud and Democrats generally
urging limitations on challengers to ensure access. While it is clearly
important to discourage fraud, it is also important to clearly specify
the standards and procedures for making challenges, to ensure an
orderly process that will not tie up polling places or consume the time
of already overburdened local election officials.
Long Lines at the Polling Place. Many Ohio voters waited for hours
on or before November 2, 2004 in order to exercise their right to vote.
The problems appear to have been particularly acute in some urban
precincts in Franklin County, where voters reported waiting for up to
four or five hours. And at one polling place near Kenyon College in
Knox County, Ohio, voters reportedly waited as long as ten hours. These
lines posed a special difficulty for working people who could not be
away from their jobs for that long, and for parents of younger
children. It will probably never be known how many people were
discouraged from voting, either because they arrived at the polling
place to find lines stretching around the block or because they heard
about how bad the lines were and thus never went to the polls in the
first place.
On election day in 2004, a lawsuit was brought on behalf of voters
in Franklin and Knox counties seeking relief from the long lines (Ohio
Democratic Party v. Blackwell). That evening, a federal district judge
issued a temporary restraining order requiring that voters waiting in
line be provided with ``paper ballots or another mechanism to provide
an adequate opportunity to vote,'' and directing that polls be kept
open waiting in line. Despite the requirement to provide paper ballots
to voters waiting in line, some voters in these counties waited in line
for several hours after the polls closed before casting their vote.
Will we see long lines again in 2008? It is hard to know for sure.
There is reason to hope that the purchase of new voting systems will
reduce some of the lines that existed in 2004. On the other hand, this
is likely to be a very high turnout election, with much stress placed
upon our polling places. This is especially worrisome, given the
desperate need for more able poll workers, particularly in larger urban
jurisdictions.
lessons from the 2004 election.
Let me now move to four overriding lessons that can be taken from
the 2004 election.
First, there is a need for clear and transparent rules to ensure
equal treatment of voters. Truly speaking, we have not a single
election system in this country nor even 50, but thousands--consisting
of all the local entities with responsibility for the conduct of
elections. Perhaps the most important lesson to emerge from both the
2000 and 2004 elections is the need for each state to provide specific
and uniform guidance to its local jurisdictions, to ensure some
semblance of consistency among counties. Seven justices of the Supreme
Court expressed the need for such clear rules in the Bush v. Gore
decision, as it relates to the conduct of manual recounts. Regardless
of how broadly one reads the holding of this case, clear rules
articulated in advance of an election are desirable as a way of
promoting consistent and equal treatment of voters, not only for
recounts but also for other election administration practices.
In the area of provisional voting, for example, there ought to be
consistent procedures and standards for determining voter eligibility
across the state. It does not appear that this occurred in 2004. While
77.9% of provisional ballots were counted overall, the percentage of
provisional votes counted varied dramatically among Ohio counties, from
a low of 60.5% to a high of 98.5%. Such discrepancies in the percentage
of provisional ballots counted tend to support an equal protection
claim under Bush v. Gore, by suggesting that there is an
unconstitutional lack of uniformity among counties
It is equally vital that the rules governing the administration of
elections be transparent. Transparency was an area in which the Ohio
Secretary of State's office was sorely lacking in 2004. It did not even
post its directives to the counties governing the administration of
elections on its website, even though these directives are obviously
matters of public interest. In the controversy over whether voters who
had requested an absentee ballot should be allowed to vote
provisionally, the Secretary of State's office guidance came in the
form of a private email just days before the election. And in some
cases, such as the standards for counting provisional votes, it was not
until shortly before the election that the directive was actually made
public. This can only lend the appearance that the election is being
run according to secret (or at least semi-secret) rules. It is
absolutely vital that the rules of the game be made public and be made
available to all citizens well in advance of elections. Fortunately, in
Ohio at least, the Secretary of State's office has gotten much better
in making directives and other official guidance public, with that
information available on its public website.
Second, partisanship in election administration remains a serious
problem. One of the peculiarities of the American election system is
that officials elected on a partisan basis are given responsibility for
running elections. In most states, the chief election official--
typically the Secretary of State--is elected through a partisan
process. In other states, the chief election officials is appointed by
someone who is elected as a representative of his or her party.\8\ So
too, local officials are elected in roughly two-thirds of American
jurisdictions, and party-affiliated officials run elections in almost
half the jurisdictions in this country.\9\ The partisanship of election
administrators became a major issue in Florida's 2000 election and in
Ohio's 2004 election. Although the chief election officials of both
these states happen to be Republican, there have also been accusations
of partisanship on the part of Democratic chief election officials--
including Ohio, which elected a Democratic Secretary of State in 2006.
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\8\ Richard L. Hasen, ``Beyond the Margin of Litigation: Reforming
U.S. Election Administration to Avoid Electoral Meltdown,'' 62 Wash. &
Lee L. Rev. 937, 976 (2005).
\9\ David C. Kimball et al., ``Helping America Vote? Election
Administration, Partisanship, and Provisional Voting in the 2004
Election,'' 5 Election L.J. 447, 453 (2006).
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It is vitally important that we move beyond personalities, and
recognize that partisanship in the administration of elections is an
institutional problem that will require an institutional solution. One
good example is the State of Wisconsin. Instead of having its elections
run by a Secretary of State elected in on partisan basis, the
Wisconsin's elections are run by a Government Accountability Board
(GAB) which is chosen in a manner that ensure bipartisan consensus.
This provides the public with greater assurance that its decisions will
be made fairly, without regard for partisan consequences. Until other
states adopt comparable institutional changes, accusations of
partisanship are likely to dog election administrators of both major
political parties.
Third, litigation can play an essential role in protecting voters'
rights and promoting sound administration. There is often a tendency to
bemoan the increase in election-related lawsuits that we have seen in
recent years. And to be sure, it would be undesirable for every
disagreement over the procedures followed in an election to wind up in
court. At the same time, it cannot be denied that the courts--and
particularly the federal courts--have an essential role to play in the
functioning of our election system. While judges are not entirely free
of ideological or even partisan biases, the federal judiciary is more
insulated from partisan politics than the executive and legislative
branches of government. This provides them with an independence that is
absolutely vital in adjudicating election disputes, particularly those
which arise under the Equal Protection Clause or other provisions of
the Constitution. Even when federal courts decline to issue relief, as
was the case in Ohio's 2004 disputes involving ``wrong precinct''
provisional ballots, litigation can play an essential role in
clarifying the rules of the game.
Relatedly, it is desirable for cases challenging the procedures for
voting to be brought and resolved as far in advance of the election as
possible. Pre-election litigation (like we saw in 2004) is vastly
preferable to post-election litigation (like we saw in 2000). Whenever
possible, it is better to identify problems and resolve disagreements
before Election Day, rather than cleaning up the mess afterwards.
Fourth, election reform remains a work in progress. If the 2004
election should teach us anything, it is that election reform is a
process, not a destination. That process is not complete. States have
now made the transition to new technology, implemented provisional
ballots, and created state registration databases as required by HAVA.
There are still serious issues, however, with how well these reforms
are working.
One of the most frustrating aspects of election administration is
the difficulty in obtaining reliable data, that will allow researchers
to make sound comparisons across states and among local government
entities. Another problem is the persistent shortage of resources,
under which the local election officials responsible for running
elections labor. There is a need for ongoing federal funding for
federal elections. In return, the federal government should demand
reliable information from state and local entities, so that their
performance can accurately be evaluated.\10\
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\10\ Thad Hall and I set forth this proposal in greater detail in
``Money for Data: Funding the Oldest Unfunded Mandate,'' available at
http://moritzlaw.osu.edu/blogs/tokaji/
2007_06_01_equalvote_archive.html.
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the role of the department of justice
I close with some thoughts on the appropriate role of the
Department of Justice in this election season. There is no doubt that
the United States Department of Justice (DOJ) has a vital role to play
in ensuring that the fundamental right to vote is protected. There will
inevitably be disagreements over how best to serve this overarching
objective. But whatever these differences, we should be able to agree
that an integral part of DOJ's historic mission is to ensure that all
eligible voters are permitted to exercise their right to vote on equal
terms with other citizens. It is especially important that DOJ ensure
that no eligible voters are denied the right to full and fair
participation in elections based on their race, ethnicity, poverty,
language proficiency, or disability.
While there are many ways in which the Department can and should
act to protect the right to vote, one of the most important areas of
voting rights activity in this year's election is likely to be
procedures that state and local jurisdictions follow in registering
voters and in maintaining voting rolls. The importance of this area is
the result of several factors, including the requirements of the Help
America Vote Act of 2002 (HAVA), evidence that jurisdictions are not
fully complying with the requirements of the National Voter
Registration Act of 1993 (NVRA), and state laws that have been enacted
in recent years that change registration procedures.
Although voter registration is mostly a state and local matter,
there are some important federal legal requirements in place, that are
designed to ensure that all eligible voters have a fair opportunity to
participate in elections. A cornerstone of these requirements is the
NVRA, which requires that voter registration for federal elections be
made available at state motor vehicle agencies, as well as state
offices providing public assistance services and services to people
with disabilities.\11\ DOJ is empowered to bring civil actions in
federal court to enforce the NVRA's requirements.
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\11\ 42 U.S.C. Sec. Sec. 1973gg-3, 1973gg-5.
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Unfortunately, there is evidence of noncompliance with the NVRA's
requirements. A recent report found that the number of voter
registration applications from public assistance agencies in 2005-06
was a small fraction of what it had been 10 years earlier--despite the
fact that roughly 40% of voting-age citizens from low-income households
remain unregistered.\12\ Survey evidence also indicates that
registration opportunities are not being made available as required by
the NVRA.\13\ Just last week, a federal court in Missouri issued an
order requiring that state to comply with the requirement that public
assistance agencies provide opportunities for registration.\14\
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\12\ Douglas R. Hess & Scott Novakowski, Neglecting the National
Voter Registration Act, 1995-2007, at 1 (2008).
\13\ Id.
\14\ ACORN v. Scott, Case No. 08-CV-4084-NKL, Memorandum and Order
(July 15, 2008), available at http://moritzlaw.osu.edu/electionlaw/
litigation/documents/Scott-Order-7-15-08.pdf
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Put simply, a disproportionate number of poor Americans are not
being registered as reuqired by federla law. Unfortunately, this is an
area in which DOJ has done a poor job during the current
administration. It has done relatively little to make sure that states
are making registration opportunities available as federal law
requires.\15\ Nonprofit advocacy organizations, which lack the
investigation and enforcement resources of the federal government, have
been left to pick up the slack.
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\15\ Id. at 13; see also U.S. Department of Justice, Civil Rights
Division, Cases Raising Claims Under the National Voter Registration
Act, available at http://www.usdoj.gov/crt/voting/litigation/
recent_nvra.html#cibola.
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Another priority is to ensure that voters names are not wrongly
removed or omitted from state registration lists. This is not merely a
theoretical problem. The highly regarded 2001 report of the Caltech/MIT
Voting Technology Project found that this was probably the greatest
source of lost votes in the 2000 presidential election, with 1.5 to 3
million voters affected by registration errors--probably more than the
number of people affected by antiquated voting equipment.\16\ Despite
all the changes in the past few years, the accuracy of voter
registration lists remains a problem. Evidence for this lies in the
relatively high number of provisional ballots in some states, which are
required if a voter appears at the polls and finds that his or her name
does not appear on the registration list. In my own state of Ohio, for
example, the percentage of voters casting provisional ballots actually
increased between the 2004 and 2006 general elections.\17\ Data from
the Ohio Secretary of State's office show that the percentage of people
voting provisionally was higher still in the 2008 primary.\18\
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\16\ Caltech/MIT Voting Technology Project, Voting: What Is, What
Could Be 9 (2001)
\17\ Steven F. Huefner, et al., From Registration to Recounts: The
Election Ecosystems of Five Midwestern States 32 (2007) (showing
increase from 2.8% to 3.1% from 2004 to 2006).
\18\ Information released by the Secretary of State's office shows
that approximately 3.4% of Ohioans cast provisional ballots (123,432
provisional ballots were issued, out of 3,603,523 total ballots cast).
Ohio Secretary of State, ``Absentee and Provisional Ballot Report:
March 4, 2008,'' available at http://www.sos.state.oh.us/SOS/elections/
electResultsMain/2008ElectionResults/absentProvRep ort03042008.aspx.
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No eligible voter should be denied the right to vote and have that
vote counted due to a faulty registration list. This basic and
undeniable principle is embodied in both the NVRA and HAVA. The NVRA
imposes important limitations on voters being ``purged'' or otherwise
having their names wrongly removed from the voting rolls, including a
restriction on the systematic removal of voters within 90 days of a
federal election.\19\ HAVA requires that every state have in place a
computerized ``statewide voter registration list,'' commonly referred
to as a ``statewide registration database.'' \20\ The idea behind this
list was to make voter registration lists more accurate, thereby
ensuring that eligible voters are not denied the right to vote due to
faulty lists while at the same time protecting the integrity of the
registration process. HAVA also includes requirements designed to
ensure that voters names are not wrongly removed from the rolls. Among
its requirements relating to list maintenance are that ``only voters
who are not registered or who are not eligible to vote'' be removed,
and states have in place ``[s]afeguards to ensure that eligible voters
are not removed in error from the official list of eligible voters.''
\21\
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\19\ 42 U.S.C. Sec. 1973gg-6.
\20\ 42 U.S.C. Sec. 15483.
\21\ 42 U.S.C. Sec. 15483(a)(2)(B)(ii) & (a)(4)(B) (emphasis
added).
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Here again, there is reason for concern that the requirements of
federal law are not fully being complied with. One report, based on a
survey of the states, found that many states have adopted registration
list practices that ``create unwarranted barriers to the franchise.''
\22\ One of the most serious problems is overly stringent ``matching''
protocols, under which voters names are deleted if they do not
perfectly match information available in other databases (such as motor
vehicle records). The problem is that data-entry errors, such as
misspellings or the inversion of first and last names, can result in
voters erroneously being removed from voting lists. Such issues have
already spurred lawsuits brought by private parties.\23\ Unfortunately,
the main thrust of DOJ's enforcement efforts in the current
administration, when it comes to voter registration, has been on
requiring states to remove purportedly ineligible voters from the
rolls. The problem is that overly aggressive purges can result in
eligible voters being wrongly excluded.
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\22\ Justin Levitt, et al., Making the List: Database Matching and
Verification Processes for Voter Registration (2006).
\23\ See, e.g., Washington Association of Churches v. Reed, W.D.
Wash., Case No. 2:06-cv-00726-RSM. This case resulted in a stipulated
final order which, along with other documents from the case, is
available at http://moritzlaw.osu.edu/electionlaw/litigation/wac.php.
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A final topic of concern in this area pertains to state laws that
impede the activities of groups engaged in voter registration efforts.
While public agencies have an important role to play in registering
voters, much of the responsibility still lies with non-governmental
organizations like the League of Women Voters. This is sometimes
referred to as ``third-party registration'' though I prefer and will
use the term ``non-party registration,'' since it involves activities
undertaken by groups that are not affiliated with political parties. In
Florida and Ohio, private lawsuits have been filed to challenge state
laws restricting non-party registration efforts. In both cases, federal
courts issued orders enjoining those laws.\24\ This too is an area to
watch in 2008, as it is quite possible that there will be similar laws
enacted in 2008. On this and other voter registration matters, it would
be helpful for DOJ to stand up for the rights of voters, as it has
historically done, so that all eligible citizens may freely register,
vote, and have their votes counted.
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\24\ See League of Women Voters of Florida v. Cobb, S.D. Fla., Case
No.06-21265-CIV-JORDAN; Project Vote v. Blackwell, N.D. Ohio, Case
No.1:06-cv-01628-KMO. Documents from both these cases may be found at
http://moritzlaw.osu.edu/electionlaw/litigation/index.php.
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Having discussed what I think DOJ should do, in the 2008 election
cycle, let me close with a few thoughts on what DOJ should not do. In
the last few years, there has been growing concern regarding the
``politicization'' of the Justice Department. Many commentators,
including a number of former DOJ employees, have alleged that the
Department's actions--particularly in the area of voting rights--were
driven by partisan interests rather than the rights of voters.\25\
There have been numerous media reports on personnel and litigation
decisions reportedly influenced by partisan politics, including dubious
voter fraud prosecutions and retaliation against U.S. Attorneys who
failed to bring such prosecutions.\26\ I have been among those
expressing concern about the role of partisan politics in DOJ's
actions, such as:
---------------------------------------------------------------------------
\25\ See, e.g., Joseph D. Rich, ``Changing Tides: Exploring the
Current State of Civil Rights Enforcement within the Justice
Department,'' Testimony for the House Judiciary Committee, March 22,
2007; Testimony of Dr. Toby Moore, Oversight Hearing on the Voting
Rights Section of the Civil Rights Division of the U.S. Department of
Justice Before the Subcommittee on the Constitution, Civil Rights and
Civil Liberties, Committee of the Judiciary, U.S. House of
Representatives, October 30, 2007; Mark A. Posner, ``The Politicization
of Justice Department Decisionmaking Under Section 5 of the Voting
Rights Act: Is It a Problem and What Should Congress Do?,'' January
2006.
\26\ See, e.g., Jason McClure, ``DOJ Probes Turn to Civil Rights
Division,'' Legal Times, June 4, 2007; Gregg Gordon, ``Justice
Department Actions Expected to Draw Congressional Scrutiny,'' McClatchy
Newspapers, June 4, 2007; Dan Eggen & Amy Goldstein, ``Voter-Fraud
Complaints by GOP Drove Dismissals,'' Washington Post, May 14, 2007;
Jeffrey Toobin, ``Poll Position: Is the Justice Department Poised to
Stop Voting Fraud--or to Keep Voters from Voting?,'' The New Yorker,
September 20, 2004.
An undue focus on pursuing allegations of voter fraud
rather than expanding access, most notoriously a prosecution
brought just before the contested 2006 senatorial election in
---------------------------------------------------------------------------
Missouri in violation of longstanding DOJ policy;
The DOJ's decision to file an amicus brief in a
controversial 2004 case involving provisional voting, which
included an argument that private citizens should not be
allowed to sue to protect their rights under HAVA;
An implausible ``interpretation'' of HAVA in 2005,
which would have allowed states to deny a provisional ballot to
voters lacking identification, a position from which the
Department ultimately backed away; and
The preclearance of Georgia's exceptionally
restrictive voter identification law in 2005, contrary to the
recommendation of career staff.\27\
---------------------------------------------------------------------------
\27\ See Daniel P. Tokaji, ``The Politics of Justice,'' May 22,
2007, available at http://moritzlaw.osu.edu/blogs/tokaji/
2007_05_01_equalvote_archive.html. See also Daniel P. Tokaji, ``If It's
Broke, Fix It: Improving Voting Rights Act Preclearance,'' 49 Howard
L.J. 785, 798-819 (2006) (discussing allegations of partisanship in the
DOJ's exercise of its preclearance possibilities in the 1990s and
2000s).
There can be no question that the DOJ's reputation has been
tarnished by the revelations that have emerged in the past year or so.
For this reason, it is vitally important that, in the future, the
Department be especially careful to avoid even the appearance of
partisanship in the discharge of its responsibilities. The focus of the
DOJ's efforts should be on expanding access for all voters--including
racial minorities, language minorities, and people with disabilities--
rather than on taking actions that tends to chill registration and
participation or that might be perceived as advancing partisan
interests.
Thank you for giving me the opportunity to testify before you.
Mr. Nadler. I thank the witness.
Our final witness in this panel is Cleta Mitchell. Cleta
Mitchell is a partner and member of the public affairs practice
at Foley & Lardner L.L.P. She litigates before the Federal
Election Commission and similar Federal and State enforcement
agencies. From 1976 to 1984, she served in the Oklahoma House
of Representatives and was Chairwoman of the House
Appropriations and Budget Committee. In 1991, Ms. Mitchell
became director and general counsel of the Term Limits Legal
Institute in Washington, D.C.
Ms. Mitchell, you're recognized for 5 minutes.
TESTIMONY OF CLETA MITCHELL, ESQ., PARTNER,
FOLEY & LARDNER, LLP
Ms. Mitchell. Thank you, Mr. Chairman.
I am an attorney, as you said. I specialize in the area of
political law which I describe to people as the business and
regulation of politics, lobbying, public policy and elections.
I've been involved in law and politics for more than 30 years.
And it is a privilege, Mr. Chairman, for me to be here
today to discuss with the Committee America's elections and
voting process.
The primary argument seemingly at the heart of this hearing
and every discussion of voting issues is a fundamental
disagreement on the following questions: Is there or is there
not voter fraud? Is voter fraud a myth or a fact?
Well, Mr. Chairman, my answer to those questions is that
voter fraud is real. It is not a myth. There are people in this
country who deliberately calculate ways to illegally enhance
the votes cast for their candidates. And the public record is
chock full of examples of illegal activities surrounding our
voter registration systems and our voting processes.
Political scientist Larry Sabato and reporter Glen Simpson
in 1996 in their book, ``Dirty Little Secrets: The Persistence
of Corruption in American Politics,'' wrote, ``voting fraud is
back and becoming more serious with each election cycle.''
They also write, ``the fact that fraud is generally not
recognized as a serious problem by the media creates the
perfect environment for it to flourish. The role played by the
news media deserves a special comment. Many of the stories we
reviewed received little to no national press attention, even
when the local media outlets carried the news accounts. Partly,
as noted at the outset, this results from the mistaken belief
among journalists that vote fraud is no longer a serious
problem.''
Mr. Chairman, you've labeled this hearing, Lessons Learned
in the 2004 Presidential Election. I would also like to discuss
the 2004 election and lessons learned but not to confine to the
Presidential election only. And I would also like to point to
examples of election fraud in 2000, in 2002, and 2006, because
all of these elections offer some lessons to be learned, namely
this, that voter fraud is alive and well in the United States,
and it is getting worse, because too many officials, partisans
and the media do not take it seriously.
In my testimony I have submitted examples of fraud in
Oklahoma in 2004 in a U.S. Senate race; in South Dakota in 2002
and 2004, in efforts to overturn the election in those two
elections; and in 2004, in the Governor's election in
Washington State, where the outcome was undoubtedly changed by
illegal voting activities. And those examples and others are in
my written testimony.
But for my oral comments here today, I want to focus on one
organization which is the single largest perpetrator of voter
fraud in this country and should be investigated by the
Department of Justice and this Congress at the earliest date,
and that is ACORN. I include in my testimony an article from
October 30th, 2007, Seattle Times, headline, ``Three Plead
Guilty in Fake Voter Schemes.'' The story reads: ``Three of
seven defendants in the biggest voter registration fraud scheme
in Washington history have pleaded guilty, and one has been
sentenced, prosecutors said Monday, this is last October. The
defendants were all temporary employees of ACORN, the
Association of Community Organizations or Reform Now, when they
allegedly filled out and submitted more than 1,800 fictitious
voter registration cards during a 2006 Registration Drive in
King and Pierce Counties.''
Mr. Chairman, I would like to ask that the documents from
those court proceedings be included in the permanent record of
the Committee, of this hearing.
Mr. Nadler. Without objection.
[The information referred to follows:]
Ms. Mitchell. Also, I would like to reference the
settlement agreement which was actually entered into between
King County and ACORN 1 year ago today in which ACORN settled
with the King County Prosecutor's Office to avoid criminal and
civil prosecution as an organization and paid a $25,000
settlement. I would also ask that that settlement agreement be
entered into the official record of the commission hearing
today.
Mr. Nadler. Without objection, again.
[The information referred to follows:]
Ms. Mitchell. Thank you.
ACORN's efforts to register voters have been scandal-prone
elsewhere.
In Saint Louis, Missouri officials found that, in 2006,
over 1,000 addresses listed on its registrations didn't exist.
Federal authorities indicted eight of ACORN's local workers.
One of the eight pleaded guilty last month.
Mr. Chairman, I would like to ask that those court
documents be entered into the official record of this Committee
hearing.
Mr. Nadler. Without objection, all court documents that you
wish entered into the record will be. You don't have to ask
each time.
[The information referred to is available in the Appendix.]
Ms. Mitchell. Thank you, I appreciate that.
ACORN has been implicated in similar voter fraud schemes
not only in Washington and Missouri but also in Ohio and 12
other States.
The Wall Street Journal noted, ``in Ohio, in 2004, a worker
for one affiliate of ACORN was given crack cocaine in exchange
for fraudulent registrations that included underaged voters,
dead voters, and pillars of the community named Mary Poppins,
Dick Tracy and Jive Turkey. During a Congressional hearing in
Ohio in the aftermath of the 2004 election, officials from
several counties in the State explained ACORN's practice of
dumping thousands of registration forms in their lap on the
last day when registration had closed, when the registration
was closing, even though the forms had been collected months
earlier.''
And I will note that, in the settlement agreement between
King County and ACORN in the State of Washington, the
settlement agreement specifically requires ACORN to submit its
voter registrations within 7 days after having gotten them,
rather than waiting until the very end.
In March of this year, Philadelphia election officials
accused ACORN of filing fraudulent voter registrations in
advance of the April 22nd Pennsylvania primary. The charges
have been forwarded to the city District Attorney's Office.
Mr. Chairman, here is the fact: There are people in America
who steal or attempt to steal votes. They illegally register
votes, voters who don't exist, who are dead, or who are
mythical. There are people who break the law to accomplish
their political objectives during the voting process.
ACORN is such an organization with a deliberate, historic,
proven, documented pattern and practice of illegal voter
registration and political activities.
I, again, urge that one of the lessons from 2004 and 2006
should be that this Committee and the Department of Justice
should undertake an immediate investigation of ACORN in order
to stop their illegal voter activities.
It is time to join together to take every possible step to
assure that our voting systems are secure, that only legally
eligible voters cast ballots, and that every legally cast
ballot is counted to the highest degree of certainty and
accuracy.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Mitchell follows:]
Prepared Statement of Cleta Mitchell
Mr. Nadler. I thank the witness.
In the interest of fairness and comity, I will now read the
biography of Mr. Blackwell that's finally arrived, and then
we'll get to questioning the witnesses.
J. Kenneth Blackwell is the Ronald Reagan Distinguished
Fellow at the Buckeye Institute for Public Policy Solutions. He
served as Ohio's 51st Secretary of State from 1999 to 2007. He
has served as the major of Cincinnati, undersecretary at the
U.S. Department Housing and Urban Development, and as the U.S.
Ambassador to the United Nations' Human Rights Commission. In
1994, he became the first African-American elected to a
statewide executive office in Ohio when he was elected
Treasurer of the State.
It is now time for questioning of the witnesses. As we ask
questions of our witnesses, the Chair will recognize Members in
the order of their seniority on the Subcommittee, alternating
between majority and minority, and provided that the Member is
present when his or her turn arrives. Members who are not
present when their turn begins will be recognized after the
other Members have had the opportunity to ask their questions.
The Chair reserves the right to accommodate a Member who is
unavoidably late or only able to be with us for a short time.
I will begin by recognizing myself for 5 minutes to
question the witnesses.
My first question is to Mr. Tokaji. Is that how----
Mr. Tokaji. Yes, that's correct.
Mr. Nadler. We have just heard Ms. Mitchell claim that
voter fraud is a widespread problem. Do you agree with this
assessment?
And let me give a second question, Ms. Mitchell also talked
in particular about ACORN and perhaps others who register
people who don't exist, Donald Duck, Mary Poppins--although I
know of no reason why Mary Poppins shouldn't vote, but anyway--
--
Mr. Franks. She's a Republican.
Mr. Nadler. Well, that may be.
In any event, but who register people who don't exist. Is
there any evidence that there's a large scale or any existent
problem with people claiming to be the imaginary voters showing
up to the polls and actually voting?
Mr. Tokaji. Let me answer the second question first.
Mr. Nadler. Use your mike.
Mr. Tokaji. Let me answer the second question first, Mr.
Chairman.
The answer is a resounding no, and what you have just heard
from Ms. Mitchell, unfortunately, is a prime example of what I
discussed in my testimony earlier; exaggerated and hyperbolic
allegations of fraud that distort the debate over election
reform.
I'm a law professor, so I prefer to be analytic rather than
rhetorical in discussing these issues. So let's break down the
different kinds of fraud which tend to get conflated in public
debates.
First, there's insider fraud. Someone on the inside, an
election official for example, stuffs ballots or manipulates
code to change the result. We do have some historical examples
of that.
Second, registration fraud. False registration forms are
submitted, for example, Mary Poppins. Now this did happen to
some extent in the 2004 election. The problem was that
registration groups were paying people by the registration
form. And this is a problem that's easily correctable if we
simply change the incentives, require that people be paid on an
hourly basis rather than on a per-registration-form basis. That
destroys the incentive to engage in that sort of registration
fraud.
And then there's voter fraud, which can be broken down into
two sub parts. There's absentee fraud, and there's voters going
to the polls pretending to be someone they are not. Now voter
fraud is rare, but to the extent it occurs, it's mostly with
absentee ballots, not with voters going to the polls pretending
to be someone they are not. And that makes sense from a
commonsense perspective.
What voter in his right mind is going to go to the polls,
pretending to be someone that he or she is not? The benefit is
minimal. The cost in terms of the sorts of prosecutions that
have been brought and indeed should be brought when a voter
really does that are enormous.
Mr. Nadler. Thank you.
Mr. Blackwell, it is well known that, during the 2004
election, you served both as the chief elections official of
Ohio and the honorary cochair of the Committee to Re-Elect
George Bush.
In a letter after the election you wrote: ``My friends, not
only would a Kerry victory have been a terrible result for
Ohio, it would have been a horrible outcome for the families
and taxpayers of America.''
And I'm sure you believe that, and you're entitled to that
belief, obviously.
My question is, do you think it is a conflict of interest
for someone who is a strong partisan and officially a strong
partisan, chairman of the Committee to Reelect or chairman of
the Committee to Defeat, to be simultaneously in charge of
running an election?
Mr. Blackwell. No, sir. Our system is a bipartisan system,
equally balanced at the county level where the votes are
counted. And Ohio had a tradition of Secretaries of State being
cochairmen of the State campaign committees of Presidential
candidates; Sherrod, Senator Sherrod Brown was a cochairman
of----
Mr. Nadler. I'm not----
Mr. Blackwell. No, no, no, what I'm--I'm trying to--I'm
trying to give you.
Mr. Nadler. Tradition.
Mr. Blackwell. What the tradition was, what the safeguards
are, where the votes are----
Mr. Nadler. Let me ask you the following. I'm not saying
you did anything different than anybody else.
Mr. Blackwell. No, no, no.
Mr. Nadler. But my question is, you're saying that, on the
local level, there are bipartisan Boards of Elections, but the
chief official, the Secretary of State, makes decisions that
can affect things. Do you think that, whether it is traditional
or not, that it is inherently a conflict of interest for
someone who is in fact in a position to make decisions without
two Secretaries of State?
Mr. Blackwell. Don't, don't--Mr. Chairman, what I'm
saying--don't separate the individual Secretary of State from
the structure that is guaranteed to protect against a partisan
Secretary of State. Secretaries of State run for election as a
Republican, Democrat, Libertarian, Green party member in the
State of Ohio. They run as a partisan.
Now, if you go back and you change the Constitution, and
Secretaries of State become appointed and--or there's a board
that's--my colleague here has suggested that we have, where you
have a Secretary of State that is not partisanly elected, then
I'm comfortable with that.
Mr. Nadler. So you would not think--my last question
because my time has expired--you would not think it a good
idea, for example, if Congress exercising our power to regulate
Federal elections, were to require that the chief election
administrator in every State not be a partisan figure?
Mr. Blackwell. I think that would be a Federal reach, and
in terms of, we don't have a national election system. We have
50 State election systems.
Mr. Nadler. Forgetting our power to do it, it would be----
Mr. Blackwell. No, no, no. And I don't want to separate it
from your constitutional powers and the constitutional rights
of States and individual citizens.
Now, what I think is important here is that the integrity
of the system is protected by how it is structured. I think
that elections and votes should continue to be counted at the
local level. I believe that the two, that the bipartisan system
of checks and balances are in place. And I think Ohio's
tradition of electing its Secretary of State is healthy. It
works, and it has produced good elections.
Mr. Nadler. Thank you very much.
My time has expired.
I now recognize for 5 minutes of questioning the
distinguished Ranking Member of the Subcommittee, gentleman
from Arizona, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Thank you, Mr. Blackwell, for being here, and the rest of
the panelists here.
Mr. Blackwell, I've got to, you know, I have a disclosure
here. I hold you in the highest esteem. I believe you're an
example of what an elected official should aspire to. And so I
want to be very up front; I'm very biased in your favor.
With that said, I'd just like to ask you, as a Secretary of
State, what do you think the responsibility of someone from
either party really is when it comes to protecting the voting
process? What are the things that you believe in your heart are
the most important to the race?
Mr. Blackwell. It's pretty simple, we have to protect the
integrity and the fairness of the system. And we have to deal
with weaknesses structurally in the system that would allow for
one person's vote to be nullified by another's illegal
tampering or fraudulent vote in the system.
I think it's, and again, I go back to the confidence in
Ohio's system. Not one of the State party officials of either
party have been party to a suit questioning the integrity of
the system because of the soundness of the system. And so the
chief election officer has to deal with the soundness of the
system. It has to do with--he or she has to deal with the
integrity of the vote. And I think that's very important.
Let me underscore something and use this opportunity. You
know, we heard, and I tell you, this is the one thing that I
lost some sleep over, and that was the whole paper weight
issue. And I think that because we have revisited this issue,
that it is very, very important that we go back to the
testimony of Mrs. Patricia Wolfe given before the House
Committee on Administration in Columbus, Ohio, on March 21st,
2005. She gave a historical overview.
The reason there was a paper weight provision at all was,
back in the early 1990's, a decision was made after the U.S.
Postal Office came to the Secretary of State's Office and said,
you are losing a lot of your voter registrations through the
mail's sorting system; they are being destroyed, and people's
registrations have been eliminated. So they went to a paper
weight that could go through the sorting machine and avoid
destruction.
In 2004, something interesting happened. Because there were
campaigns to get higher numbers of people registered, people
started to get paid for the number of registrations that they
delivered. And so they wanted the photo opportunity, and they
started to bring it in. Well, now with most of the
registrations coming in over the counter, as opposed to through
in the mail, there was actually no need for the paper weight
requirement.
Once that was made, once that evidence was made clear to
me--it wasn't pressure; it was evidence, and lawyers are not
the only folks who deal with evidence and logic--we in fact
made a change in the system.
The reason I bring that to your attention is because
Patricia Wolfe was the election administrator under Bob Taft,
under me and presently under Democrat Jennifer Brunner. She
made a compelling case as to what happened, why it happened,
and how we made a midcourse correction.
But this notion, this imagery that we in fact changed under
the heavy hand of pressure is just wrong. We changed based on
logic, and we changed based on the fact that the registrations
were coming in over the counter as opposed to doing the mail or
through the mail.
Thank you. That's what you have to do. We run elections.
Election officials run elections. It is a very fluid process.
You have to make judgments, you know, day in, right up until
the election is executed. And if you can't take the heat of
criticism when you have to make those sort of decisions, then
you ought not be a Secretary of State or an election official.
The integrity of the system is what matters because it then
protects against anybody tampering with the system, whether it
be the Secretary of State or some fraudulent voter.
Mr. Franks. Well, thank you, sir, and thank you for your
service.
Mr. Chairman, my time has expired. Thank you.
Mr. Nadler. I thank the gentleman.
I now recognize for 5 minutes the distinguish Chairman of
the full Committee, the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you very much, Mr. Chairman.
Attorney Mitchell, you said you have detected fraud in
about 30 States or so?
Ms. Mitchell. I quoted from various articles which have
indicated that from many sources.
Mr. Conyers. Yeah, but how many do you believe?
Ms. Mitchell. I believe that there is the potential for
voter fraud in every jurisdiction. Larry Sabato and Glen
Simpson in their 1996 book said that it is----
Mr. Conyers. Okay. Well, what about Ohio?
Ms. Mitchell [continuing]. In every region and is growing.
Mr. Conyers. What about Ohio?
Ms. Mitchell. I believe it was evident in 2004. That's been
documented.
Mr. Conyers. So that was the fraud you found out about in
Ohio?
Ms. Mitchell. That's the fraud that I've testified to
today.
Mr. Conyers. Nothing else?
Ms. Mitchell. I know of no other voter fraud in Ohio.
Mr. Conyers. In Ohio, okay. That's great.
Have you ever heard of a book, ``What Went Wrong in Ohio''?
Ms. Mitchell. No. I haven't read it. I've heard of it.
Mr. Conyers. You heard of it, okay.
Ms. Mitchell. So you would agree with me that there is
voter fraud, then? That's my main concern is that there is
voter fraud, and we have laws to try to guard against it, and
we ought to enforce the laws, and we ought to quit arguing
about whether or not it exists. It does exist. People steal
votes----
Mr. Conyers. You're using up a lot of my 5 minutes.
Now, Mr. Blackwell, thanks for coming.
Mr. Blackwell. Thanks, Mr. Chairman.
Mr. Conyers. About how many times were you sued about voter
issues as Secretary of State of Ohio?
Mr. Blackwell. Over the course of the 2004 election, if my
recollection serves me correctly, about 40 times. And there
were issues--and let me just give you a----
Mr. Conyers. No, I don't need any examples.
Mr. Blackwell. No, no, no, Mr. Chairman, if you don't mind,
let me just give you an example because it's one that comes up
all of the time.
Mr. Conyers. Well----
Mr. Blackwell. And that was, for instance, Ohio was one of
the 27 States that said that, for a vote to be counted, it had
to be cast in the right precinct in the right county. And I
took the position that that was State law and it should be
defended as it was defended by the other 26 States that had
that same law, and we won.
But all of a sudden, those who wanted, you know, voters
without borders saw me as some sort of enemy when I saw myself
and others who defended votes being counted in the right
precinct in the right county as being protectors of the
integrity of the system.
Mr. Conyers. Okay.
Do you know that your State is, I think, the first State in
the Union to be challenged to have the electors counted in the
Congress because of voter irregularities. I think that law was
passed in 1877.
Mr. Blackwell. It didn't surprise me, given at the time I
thought it was--and I say this in respect for the two-party
system--to discredit the outcome, because they didn't like the
outcome. So, as you know, in this very suit-happy culture that
we live in, it doesn't--I anticipated, so therefore it doesn't
surprise me that we would be sued.
What is interesting is that our position in these suits,
when it came to the integrity of the system and the consistency
of our application of the law, was upheld.
Mr. Conyers. Well, yeah. There was a Republican Majority in
the Congress at that time.
Mr. Blackwell. Mr. Chairman.
Mr. Conyers. You don't have to explain it to me. I was
there. You don't have to--I don't want you to make----
Mr. Blackwell. You raised a question.
Mr. Conyers. Just a moment, sir. I ask questions. You
respond.
Mr. Blackwell. I was still responding.
Mr. Conyers. No, you are not still responding.
Mr. Blackwell. I was still responding.
Mr. Conyers. Well, I am cutting you off.
Mr. Blackwell. Because you don't want to hear the answer.
Mr. Conyers. I want to get my questions out.
Mr. Blackwell. Yes, sir.
Mr. Conyers. We come here in a little bit of an artificial
atmosphere here. We are acting like nothing went wrong, or much
went wrong, and there have been books written about what
happened in Ohio; there have been challenges based on the exit
polls that the result was the most unusual in recorded history.
I happen to have brought a dozen Members or so to Ohio, to
Columbus, including the Chairman of the Constitution
Subcommittee; Maxine Waters, on this Committee; a couple or
three of Members of Congress, all to hear--and I happen to have
the testimony here, which we are going to put in the record.
But the whole point of this thing is that there were citizens
testifying there were lots of irregularities, plenty of them,
and they were pretty mad about them. And they weren't all
Democrats. Did you follow that at all?
Mr. Blackwell. Yes, sir. I followed it because----
Mr. Conyers. Well, wait a minute. Just a moment. You said
yes. That is what I want to know. Stop there.
Mr. Blackwell. A good lawyer technique.
Mr. Conyers. Will you explain to me, since you said you
followed it, what did you surmise from all the testimony that
we gathered?
Mr. Blackwell. Let me give you a couple of for instances.
Mr. Conyers. Just answer the question.
Mr. Blackwell. Let me give you a couple of for instances.
This is what I surmise. One, a lot of the discussion was around
provisional ballots and where we counted them and how we
counted them. Ohio had a 78 percent validation rate, the third
best in the country, because, one, we had a process, a
procedure that had been publicly advocated, so much so that we
spent $2.5 million to make sure that voters--in an
unprecedented expenditure to make sure that voters voted in the
right precinct, they knew how to make sure they were in the
right precinct so that their vote counted, and I think that
helped to give us a high validation rate.
Mr. Chairman, look, as I explained to you, a lot of the
controversy was--there are a lot of people with imaginations
akin to Jonathan Swift's. There will be films put out against
the assassination of President Kennedy. So just because
somebody makes a film or somebody makes a charge doesn't mean
that there is any fact to that.
We believe, and I continue to believe, that there was a
good election in Ohio. It was not a perfect election, but we
don't let the perfect be the enemy of the good.
Mr. Nadler. The time of the gentleman has expired.
We are going to try to get in one more question before we
have to vote. The gentleman from Ohio Mr. Jordan.
Mr. Jordan. Thank you, Mr. Chairman. I appreciate the
witness and the panel we have here.
Some of those books that were written, articles that were
done were people who had helicopters circling the statehouse
and believing in these conspiracy theories that Mr. Tokaji said
that just frankly aren't true. In fact, don't take my word for
it, or Secretary of State Blackwell's word for it; take the
Plain Dealer, not necessarily a friend of Republicans in Ohio.
But I have got headlines here: ``Conspiracy Theories of Ohio
Vote Refuse to Die.'' ``Delays At the Polls Weren't a Scheme.''
In fact, if Mr. Blackwell was so great in orchestrating
this conspiracy--he was our secretary of state in 2000, 2002,
2004, and in 2006, when he also happened to be running for the
highest office in our State, running for Governor. If he could
rig the deal in 2004, you would think, you would think he could
rig it in 2006 when he was trying to be our Governor. Some of
this stuff is just crazy.
But I did want to go to Ms. Mitchell and ask you, the
provisional ballot decision that Secretary Blackwell
implemented, which basically said you have to vote where you
live and where you are registered, if we hadn't have done that,
and the experience you have had with ACORN and what they have
done around the country, talk to me about what could have
happened in Ohio but for the decision that Mr. Blackwell
implemented.
Ms. Mitchell. Congressman, that is really an important
question, because as you are probably well aware, there was
more than one piece of legislation floating around in both the
House and the Senate to state as a matter of Federal law that
provisional ballots do not have to be counted just in the
county or the precinct of the voter's purported residence. I
think that the----
Mr. Jordan. The potential for mischief, if you let someone
on election day just vote anywhere, and what can happen, that
is huge.
Ms. Mitchell. The problem is that we don't have a system
where people in every State--where they have to show
identification in order to register. So we have a situation
where if they don't have to--if they can register by mail,
which they can in many States, but many States also then
require that you have to show a voter identification, some kind
of identification, photo ID, the first time you vote after you
have registered without presenting identification. If you don't
have to show identification when you register, and you don't
have to show identification when you vote, or you can vote by
mail, and you know that there are these groups out there--I
would respond to Mr. Tokaji in that the reason that I wanted
all of those matters related to ACORN and the court proceedings
entered into the record is because these are not myths that I
have fabricated. These are from court official documents. But
if you have all of these situations where you have the fraud in
the registration and then people coming in and being able to
vote, whether they cast a provisional ballot anywhere, and they
don't have to show identification, what, pray tell, is the
safeguard to protect against the total breakdown of our
election process? I just don't get it.
Mr. Jordan. Well said.
Mr. Tokaji, do you think you have to vote where you live
and in the precinct you are supposed to vote in? I mean, do you
agree with the provisional ballot decision we had in Ohio?
Mr. Tokaji. I don't agree with that decision, and let me
explain why and why this scenario that was just spun out is a
fanciful one.
Mr. Jordan. Let me say one thing. So you think someone
should be able to show you up in any county, not vote in the
precinct that they are assigned to vote in, not vote in the
county; you think they should be able to vote anywhere.
Mr. Tokaji. I think jurisdiction as Congress used it in the
Help America Vote Act means registrar's jurisdiction as it is
used in the National Voter Registration Act, which in most
States is the county. So a provisional ballot would only have
to count for Federal offices only if you vote in the correct
county.
What happens as a realistic matter, and this is documented
by Ohio's provisional voting data, is some voters, whether from
their own mistake or because they are sent to the wrong
precinct, vote in the wrong precinct. Indeed, a lot of time
they will go to the right polling place, but there are several
precincts at the polling place, and they will get directed to
the wrong precinct. And those people's votes in Ohio right now
don't count. I think that that is most unfortunate.
The possibility of multiple voting is really a myth, given
that Congress in 2002 mandated State registration databases
that will catch those people, and indeed someone was just
prosecuted for double voting, caught by that very State
registration database that Congress wisely mandated in 2002.
Mr. Jordan. Thank you.
I have got 30 seconds. I wanted the last few seconds for
Secretary of State Blackwell.
Just again comment, because this is something--88 counties,
2 Republicans, 2 Democrats on every county board of elections.
I have got stuff here or an article here from Richard Smolka,
Elections Magazine, talking about how that bipartisan system
works. Talk to me about that real quickly, if you could.
Mr. Blackwell. It really does work. Again, I just want to
underscore there are no perfect systems. Yes, there were
mistakes made. You look forward and say, how do we prevent
those mistakes from being made again? I think that we do it by
not damning a system that has in the main worked as a
bipartisan system, Democrats, Republicans.
Not one of those election officials, Democrat or
Republican, said that there was anything wrong with the system.
That sort of confidence by Democrats and Republican parties in
the bipartisan system helps to build public confidence.
Mr. Nadler. Thank you.
There are four votes on the floor. There is 1 minute and 2
seconds left on the vote. They will delay it a bit. So I ask
the witnesses to remain. I ask the Members to come back as soon
as the votes are finished, and I declare the Committee stands
in recess.
[Recess.]
Mr. Nadler. The Committee will resume from its recess for
votes, and we will continue with our questioning. I recognize
for the purpose of questioning the gentleman from Alabama Mr.
Davis.
Mr. Davis. Thank you, Mr. Chairman.
Mr. Blackwell, good afternoon to you. You made an
observation during your exchange with Chairman Conyers that
election officials run elections, and that is true enough. I am
a little bit more interested what happens when election
officials run campaigns, since you were the honorary Chair of
the Bush campaign, which I think is a little bit unusual. Just
by way of a reference, in the 2004 campaign cycle, were there
any other secretaries of state who were Bush honorary campaign
Chair in the whole country? Do you know of any?
Mr. Blackwell. I would imagine the secretaries of state,
attorneys general who were making calls on the elections across
the country, yes.
Mr. Davis. Do you know of any?
Mr. Blackwell. Yes. As a matter of fact, there were more
secretaries of state that were election officials, and these
were honorifics. Statewide officials normally are associated--
--
Mr. Davis. Let me represent to you, and certainly my
knowledge of the universe is not exhaustive, but, frankly, I
don't think that any other Bush campaign Chairs in 2004 were
secretaries of states. I do know of one in 2000. I do know one
in 2000, Katherine Harris.
Mr. Blackwell. Mine was an honorific.
Mr. Davis. I understand that.
Mr. Blackwell. No, you don't. You didn't mention that, sir.
Mr. Davis. Then let us stipulate you are the honorary
Chair.
Mr. Blackwell. I was honorary co-Chair. And, yes, I do.
What I am saying is that there were more secretaries of state,
attorneys generals that were honorary Chairs of their
respective candidates in 2004.
Mr. Davis. If that is your position, that is your position.
That is fine.
Mr. Blackwell. Those are the facts.
Mr. Davis. I know of one. That would be Ms. Harris in 2000,
and that was also a subject of controversy.
Rather than go back and forth on what honorary Chairs do,
let me tell you what stands out about that. Obviously, the
secretary of state has a responsibility for dealing with
election law. Obviously, I fully understand that there are
lower-level officials who handle a lot of the day-to-day work,
but assuming that the job does what the Constitution of Ohio
says it does, you have a significant role, or you had a
significant role, in that process, as did Katherine Harris in
2000.
Now, this is the timeline that is intriguing to me. It was
clear before the election in November 2004 that there were
going to be disputed issues around the election. It seems clear
to me that there were going to be efforts, and announced
efforts, by the Republican Party to challenge the registration
of some voters. Obviously, that would have required some
participation by election officials, including the chief
election officer. It also seems very clear to me that Ohio was
a pivotal State in 2004.
What month and year did you become an honorary Chair of the
Bush campaign, Mr. Blackwell?
Mr. Blackwell. I was an honorary co-Chair of the Bush
campaign in 2000, and I was an honorary co-Chair of the Bush
campaign whenever they announced that----
Mr. Davis. So you assumed that role with all of these
potential controversies going on. I fully understand your
observation that there was nothing in Ohio law, nothing in
Federal law that precluded you from playing that role. So that
is not my point. Let us not waste time on that. But it seems to
me that a reasonable secretary of state, a reasonable chief
election officer might have thought that there was an
appearance of a conflict of interest.
Are you now a reasonable person who had that perception,
sir?
Mr. Blackwell. I am a very well reasonable person, but
perhaps your definition of reasonableness is----
Mr. Davis. Would a reasonable person see a conflict of
interest there?
Mr. Blackwell [continuing]. Is different than mine. A
reasonable person who understands the bipartisan nature of our
elections system. For instance, Mr. Chairman, the Franklin
County chairman of the board of elections, Bill Anthony, a
Democrat, a labor leader, was chairman of the Kerry campaign.
Mr. Davis. Was he a secretary of state?
Mr. Blackwell. He was the chairman.
Mr. Davis. Was he secretary of state?
Mr. Blackwell. He was the chairman of the board of
elections that counts the votes. So he was actually closer to
vote counting than a secretary of state.
Mr. Davis. Then let me----
Mr. Blackwell. So a reasonable person can assume that a
system has a built-in----
Mr. Davis. Mr. Blackwell, let me make this suggestion. I
don't think there is any question but that your being the
honorary campaign Chair and Secretary of State simultaneously
was a subject of controversy, and I don't think there is any
question that people at the time said they were concerned about
it and that people at the time raised the example of Ms.
Harris' experience. I think it is interesting that you
persisted anyway.
But let me ask you a factual question. I first learned
about the exit polls having John Kerry winning Ohio around 12
on the Tuesday of the election. When did you first learn about
them?
Mr. Blackwell. I didn't pay that much attention.
Mr. Davis. When did you first learn about them?
Mr. Blackwell. I don't recollect when I would have, in
fact----
Mr. Davis. Did you learn about them?
Mr. Blackwell. I learned about it in retrospect, reading
about it.
Mr. Davis. Did anyone call you that day and mention that
the exit polls were very favorable to Mr. Kerry?
Mr. Blackwell. No. The answer to that question is no,
because on that day I was working with 88 county boards of
elections to make sure that we were managing long lines.
Mr. Davis. Did you have any communications that day with
anyone who was part of the Bush reelect campaign?
Mr. Blackwell. No.
Mr. Davis. Did you have any communications with anyone on
the White House staff?
Mr. Blackwell. No.
Mr. Davis. Did you have any communications with anyone who
was in any way affiliated with the President on the day of the
election?
Mr. Blackwell. You mean like the chairman of the Ohio
Republican Party?
Mr. Davis. Yes. That would include him. He was my next
person.
Mr. Blackwell. He was also the chairman of the Cuyahoga
County board of elections.
Mr. Davis. Well, since my time is up, I will tell you why I
make that point, sir.
I would like 30 seconds, Mr. Chairman.
Mr. Nadler. Without objection.
Mr. Davis. It is very interesting, Mr. Blackwell, and I
don't know that I necessarily agree with Mr. Conyers'
observations that there were improprieties that day. I haven't
researched it enough to know that. But what I do think is very
interesting, when the secretary of state is also a major
political player and receives or is in a position to receive
information about exit polls or information about voter
turnout, that secretary of state would be in a position, if he
wanted to, to take actions over the course--over the course of
the day that could have the affect of affecting or limiting or
suppressing voter turnout. And I don't know enough, Mr.
Blackwell, to accuse you of that because none of us know the
facts as well as you do, but the problem is you put yourself in
a position. You knew there was a conflict of interest, and you
didn't walk away from it.
Mr. Blackwell. There was no conflict of interest.
Mr. Davis. That may be a reason, sir.
Mr. Nadler. The time of the gentleman has expired. I think
both have made their point on this.
I now recognize for 5 minutes the gentlelady from Florida.
Ms. Wasserman Schultz. Thank you very much, Mr. Chairman.
Mr. Blackwell, I, as the Chairman stated, am from the State
of Florida, where we have a particular sensitivity to the
appropriate and proper counting of votes and making sure that
we have elections whose integrity is preserved.
I guess the thing that I find the most disturbing, the
question I want to ask you is: Would you not agree that it is
at least one part of the major responsibilities of a secretary
of state to expand the voter participation?
Mr. Blackwell. Yes.
Ms. Wasserman Schultz. What is disturbing to me is it
appears as though you spent more time as secretary of state in
the 2004 election reducing or suppressing voter participation
as opposed to expanding it.
Let me give you a number of examples of that. One is you
created new standards on the use of provisional ballots, which
disenfranchised thousands of voters in predominantly Democratic
or minority areas. You rejected thousands of new voter
applications simply because they were not printed on the
correct weight of paper. Now, that was something I want to come
back to in a second. That I find particularly unbelievable. And
you prevented voters, most of them senior citizens--and I
represent a district that has thousands and thousands of senior
voters who use the absentee ballot process in order to be able
to cast their ballots because of their frailty, in many cases.
Senior citizens who had not yet received their ballots were
prevented by you from casting provisional ballots on election
day.
What I find the most unbelievable is that you made
reference to the weight of the paper, and the reason that you
made the decision to use 80-pound paper and require that on
voter registration cards or the cards when they were returned
with the voter's information, because it would potentially be
difficult for those cards to be processed through postal
machines if they were not a certain weight. Is that correct?
Mr. Blackwell. That is right.
Ms. Wasserman Schultz. That was your testimony. Okay. Well,
that would be understandable. Let us say that that is a sound
decision that you could argue makes some sense.
What doesn't make any sense to me at all, and what I think
makes it evident that you were much more focused on suppressing
voter participation, is that when those cards that were not
printed on 80-pound paper reached your office, you rejected
them and treated them as voter registration applications as
opposed to simply processing them and allowing those people to
register.
Now, it is one thing if you are going to argue that you are
worried about the weight of the paper not getting through the
postal machines. It is completely different when the actual
card has reached your office and you discard it and not allow
it to be counted as a voter registration and make those people
go through the process again.
Can you explain your rationale for that portion of your
decision?
Mr. Blackwell. Congresswoman, two things. First, when the
issue was brought to my attention, we reviewed it, we acted on
it, and we had the courage to change our policy.
Ms. Wasserman Schultz. Courage to change what policy?
Mr. Blackwell. Of the paper weight.
Secondly----
Ms. Wasserman Schultz. Wait. But wasn't that decision
yours? Wasn't it you that signed off on what the required
weight of the paper had to be?
Mr. Blackwell. Absolutely, as a matter of the record----
Ms. Wasserman Schultz. Because you state at the beginning
of my question that you did think it was the responsibility of
a secretary of state to expand voter participation. This was
clearly the opposite of that.
Mr. Blackwell. No. You are wrong.
Ms. Wasserman Schultz. Am I wrong that you rejected
thousands of voter registration entries that were not on
80-pound paper?
Mr. Blackwell. Excuse me.
Ms. Wasserman Schultz. Excuse me. Just excuse me. I am
asking you a question. Is it not true that you rejected
thousands of voter registration entries that were not on 80-
pound paper; that you treated them as voter registration
applications, even though they were not, and did not count
those as registrations, and made them go through the process
again? Is that true? Did do that? It is a yes or no question.
Mr. Blackwell. No, it is not a yes or no question.
Ms. Wasserman Schultz. It is. Either you did or didn't do
it.
Mr. Blackwell. On March 21, 2005, the election
administrator, Patricia Wolfe, speaking to a House committee,
explained to her that this was a standing----
Ms. Wasserman Schultz. A State House committee?
Mr. Blackwell. No. Congressional. So it is part of the
congressional record. She is still, she is still----
Ms. Wasserman Schultz. You are still not answering my
question. Did you or did you not----
Mr. Blackwell. She is still the administrator of elections
in Ohio.
The point that I was making is that it was the policy of
the office before I was elected secretary of state. It was the
policy----
Ms. Wasserman Schultz. What was the policy?
Mr. Blackwell. The paper.
Ms. Wasserman Schultz. Mr. Chairman, I ask unanimous
consent for an additional minute.
Mr. Nadler. Without objection.
Ms. Wasserman Schultz. What was the policy?
Mr. Blackwell. The paper weight.
Ms. Wasserman Schultz. So that is not a decision you made
yourself?
Mr. Blackwell. It was a decision that my office had that
was a continuation of a policy----
Ms. Wasserman Schultz. My understanding is that the policy
was not actually enforced until you became secretary of state.
Mr. Blackwell. That is not true.
Ms. Wasserman Schultz. So before----
Mr. Blackwell. That is not true.
Ms. Wasserman Schultz. Excuse me. I want to go back----
Mr. Blackwell. It is not true, and it is part of the
congressional record as of March 21, 2005.
Ms. Wasserman Schultz. Excuse me. I would like you to
answer my question on whether or not you rejected thousands of
voter registrations because they were not--simply because they
were not on 80-pound paper. Did you or did you not do that?
Mr. Blackwell. They got processed.
Ms. Wasserman Schultz. When? After they had to go back
through the registration process?
Mr. Blackwell. They got processed.
Ms. Wasserman Schultz. Were they processed the first time
they were submitted?
Mr. Blackwell. The answer is no, because that was not the
policy of the office that I--a policy that I inherited when I
got elected.
Ms. Wasserman Schultz. That was a policy you had the power
to overturn.
Mr. Blackwell. And I did.
Ms. Wasserman Schultz. Correct me if I am wrong----
Mr. Blackwell. Once the evidence was made to me----
Ms. Wasserman Schultz. What evidence did you need? You knew
the policy. You denied registrations.
Mr. Blackwell. Maybe you weren't sitting here when I told
you or when I told the Committee that prior to the incidents in
2004----
Ms. Wasserman Schultz. Mr. Blackwell, my time has expired,
and you are dancing around the answer to my question.
Mr. Blackwell. No. I will answer your question. Prior to
2004, the policy of the secretary of state's office that had
been put in place in the mid-'90's before I was secretary of
state----
Ms. Wasserman Schultz. Did you or did you not have the
authority to change that upon becoming secretary of state?
Mr. Blackwell. Which I did.
Ms. Wasserman Schultz. When? How long after you became----
Mr. Blackwell. Once it was told to me that most of the
registrations were coming in over the counter, as I said
before, as----
Ms. Wasserman Schultz. But you didn't change it until after
thousands were rejected; is that correct?
Mr. Blackwell. Like I said----
Ms. Wasserman Schultz. This is the question. Mr. Blackwell,
can you stop talking for 1 second, because I am asking the
questions, and you are the witness.
Mr. Blackwell. I am giving my answer, not your answer.
Ms. Wasserman Schultz. You are rambling and trying to run
my clock out.
Mr. Blackwell. I am giving my answer. So give me your
question, and I will give you my answer.
Ms. Wasserman Schultz. I don't want your answer, I want an
answer.
Mr. Blackwell. You don't want my answer.
Ms. Wasserman Schultz. No, I do want your answer.
Mr. Blackwell. You don't want my answer. You want the
answer that you want to fit your narrative.
Ms. Wasserman Schultz. Excuse me.
Mr. Nadler. Can we have one speaker at a time, please? The
gentlelady from Florida.
Ms. Wasserman Schultz. Thank you. I would like to know why
you didn't change the policy upon becoming secretary of state
and allowed thousands of registrations to be returned and put
through the process again. Why didn't you change that policy?
Mr. Blackwell. Because I had not looked in a crystal ball
and anticipated that those registrations were going to come in
over the counter----
Ms. Wasserman Schultz. Did you think that process was fair?
Did you think an 80-pound paper rule is fair?
Mr. Blackwell. As soon as they made the argument, made the
case, I changed the policy. I did not--and the question that I
have in my answer is how many of those----
Ms. Wasserman Schultz. Is it true that you did not change
the policy? You didn't change the policy until after 2000.
Mr. Blackwell. You want your answer. I am giving you my
answer.
Ms. Wasserman Schultz. Answer this yes or no. Isn't it true
you didn't change the policy until after thousands of
applications were rejected?
Mr. Blackwell. Registered or not, the answer is yes.
Ms. Wasserman Schultz. But they didn't get registered.
Mr. Blackwell. They got registered.
Ms. Wasserman Schultz. Not until after you made them do it
again, which means thousands--you did make them do it again.
Mr. Blackwell. That is your answer. They got registered.
They did get registered.
Ms. Wasserman Schultz. That was not my question.
Mr. Blackwell. The integrity of the system is in place.
Mr. Nadler. The answer is obvious. They didn't get
registered the first time. They got registered eventually.
Ms. Wasserman Schultz. That is just not an answer he likes,
and makes him look bad, so he is not answering the way we are
asking it.
Mr. Nadler. I think we have heard the answer we are going
to get.
Mr. Blackwell. We will give you the correct----
Ms. Wasserman Schultz. Excuse me, Mr. Chairman. My time has
expired, and so his time has expired.
Mr. Nadler. The time has expired. As I will state at the
end of the hearing in the normal explanation, witnesses are
free to expand their answers in written submissions to the
Committee after the hearing is over.
Mr. Blackwell. Thank you, Mr. Chairman.
Mr. Conyers. Mr. Chairman, could I ask unanimous consent to
ask one further question----
Mr. Nadler. Without objection.
Mr. Conyers. A question of the gentleman from Ohio: it has
been learned that Ohio election officials, especially in
Franklin County, Mr. Blackwell, had difficulty in allocating
voting machines, and, as a result, voters were disenfranchised
from the process. Is that correct?
Mr. Blackwell. There were long lines, and as a result of--
it is in my written testimony.
Mr. Conyers. But is the answer yes?
Mr. Blackwell. No. My--the answer is that they didn't have
trouble.
Mr. Conyers. Is the answer no?
Mr. Blackwell. The answer is no, they didn't have trouble.
They miscalculated. The Democrat chairman or the Franklin
County board of elections has said that.
Mr. Conyers. No, I am not talking about what he said. You
were the secretary of state. The answer is still no.
Mr. Blackwell. The voting machine distribution is made at
the county level. I would hope this Committee would look at the
election law and process in the State of Ohio and stop making
things up out of whole cloth.
Mr. Conyers. Look, we are not here to get your
instructions. You said the answer is no, and that is what I
asked you. You said there weren't voters that were
disenfranchised, especially in that county. So that is the
record. The gentleman has made a statement.
Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
I now recognize the gentleman from Virginia for 5 minutes.
Mr. Scott. Thank you. Thank you, Mr. Chairman.
I don't want to go over the last question, except for just
one part of it. I am not sure I heard you right. Did anyone
submit an application for voter registration on something that
was not 80-pound paper and not eventually vote?
Mr. Blackwell. No. I don't know if they did.
Mr. Scott. But they were registered. You were considered
registered if they submitted it on less than 80-pound paper. In
the fullness of time, everyone was eventually registered.
Mr. Blackwell. Yes, sir, that is my understanding.
Mr. Scott. So if they showed up, they were able to vote, as
opposed to somebody who has had their form rejected, and they
don't find out about it until election day when they are told
they can't vote. They were told they could vote if they
submitted the proper form on lightweight paper. They were
considered registered to vote; is that right?
Mr. Blackwell. Right.
Mr. Scott. To follow up on another question, I think it is
clear you are not the only person in a position of an election
official who has partisan activity. Should election officials
be governed by guidance applicable to quasi-judicial personnel
rather than partisan personnel?
Mr. Blackwell. Congressman Scott, you have asked a great
question. This is a debate that has gone on before me and after
me, and that is whether or not you should take partisanship out
of election management.
The Ohio system is a bipartisan--by definition, a
bipartisan process. It is not an apolitical process, it is a
bipartisan process. If you want to change that system, I mean,
you are talking about wholesale change, and people of the State
have a right to have a voice in that.
Mr. Scott. Bipartisan at the precinct level where you have
both sides looking is one thing; it is another thing to have a
dispute resolved by somebody who has a partisan interest, an
overt partisan interest in the campaign.
So my question isn't on whether or not both sides--and when
you have little informal elections, usually both candidates get
to send somebody in the back room to watch.
Mr. Blackwell. It is a bipartisan system. Look, it is the
same system that when Sherry Brown was secretary of state and
chairman of the campaign, it is a bipartisan system all the way
up the chain, and that is a fact. Unless you want to--if you
want to change the nature, and I think that is a legitimate
intellectual debate, as to whether or not you should move from
a bipartisan system or a partisan-based system to a nonpartisan
system.
Mr. Scott. Do you want to comment on what you meant by the
awkwardness of having somebody--having a player also be the
umpire?
Mr. Tokaji. Yes, I would. Let me first agree with one thing
that Secretary of State Blackwell, former Secretary of State
Blackwell, said. At the local level there is a bipartisan
system. We have election boards that are evenly split in Ohio
between Democrats and Republicans. That is certainly true. At
the State level, however, like most States, we have a secretary
of state, our chief election official, who is elected as the
nominee of his or her party, and Secretary of State Blackwell
was quite strongly criticized during the 2004 election season
for making decisions that many people perceived, I think at
least in some instances correctly, as benefiting his party. And
that is in part what I mean by the umpire being a player for
one of the teams.
I do want to emphasize, and I don't mean this as a personal
attack on Secretary Blackwell, I think the problem does go
beyond him. It is an institutional problem.
Mr. Scott. It is not the only State--let me see if I can
get another question in. Mr. Blackwell, how long should people
wait before they can vote, and how long a wait would actually
constitute a denial of civil rights?
Mr. Blackwell. I don't know the answer to that question
because I think you have to look at it on a case-by-case basis
and the circumstances of that time. Let me just tell you the
beauty of long lines was the fact that it was the result of a
successful voter registration and get out the vote effort.
Mr. Scott. Let me just say some have alleged it wasn't a
result of the get out the vote effort, it was a result of the
fact that you didn't have enough voter machines. You had fewer
voting machines in some of these precincts than in the primary
before that.
Mr. Blackwell. That is not true, Mr. Scott.
Mr. Scott, as I explained to you, to the Committee earlier,
voting machine distribution is made at the county level, not by
the secretary of state. It is not a central decision. It is
made at the county level by the county boards of elections, and
as I say in my formal testimony, those decisions are based on
an historic pattern of voter turnout.
Mr. Scott. The Chairman is being very, very kind to let me
run over a little bit. But my question was whether or not there
is a length of time in which----
Mr. Blackwell. What I am saying is there are circumstances.
In this case, the long lines were the result of a vibrant get
out the vote process.
As a matter of record, I would now like, Mr. Chairman, to
submit our Your Vote Counts.*
---------------------------------------------------------------------------
*The information referred to was not submitted to the Subcommittee.
---------------------------------------------------------------------------
Mr. Nadler. Without objection.
Mr. Blackwell. In fact, we had a record turnout of African
American voters in Ohio in 2004, and Your Vote Counts was a
part of getting that record, and that was run from the
secretary of state's office. As I described, it was the cause
to make sure that votes counted and people understood----
Mr. Scott. Mr. Chairman, if I can just say that the
suggestion that the long lines going into hours that people had
to wait, in my view, violating their rights, suggesting that
that is a good thing, I think, is inconsistent with my view of
civil rights.
Mr. Nadler. The time of the gentleman has expired.
I now recognize the gentleman from North Carolina for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman. Thank you for this
important hearing.
I actually want to look forward rather than backwards.
Although there are concerns about what happened in the last
election, I am a lot more concerned about what could happen in
the next election. So I want to turn, Mr. Blackwell, to the
very first recommendation that you have made in Lessons Learned
in Ohio, which is boards of election around the country should
use the record turnout figures from 2004 to better anticipate
precinct by precinct demands on voting equipment. Unless I
misunderstand what you are saying, and I certainly am going to
give you an opportunity to clarify it if I am misunderstanding
it, I think that would create absolute chaos in this election.
If we allocate machines, vote equipment, based on a record
turnout in 2004 in the 2008 election, you are going to see the
very same kinds of things that you saw in the 2004 election
because--I mean, I presume that boards of election in the past
have allocated based on a hindsight view of what has happened
in the past rather than a future site view of what they
anticipate is going to happen in this election. And for us to
be looking at turnout in 2004, unless I misunderstand what you
are saying----
Mr. Blackwell. You didn't.
Mr. Watt [continuing]. I just don't understand how you can
be recommending that we look at 2004 numbers to calculate this.
That is my first concern with it.
The second concern I actually want to address to the
professor, because when you say boards of election--and I am
going to get both of these. I am not depriving you of the right
to answer. I don't play the game that way. I just want to get
my questions on the record so that everybody can see where I am
going.
If I read Article I, section 4 of the Constitution that
says time, places, and manner of holding elections for Senators
and Representatives shall be proscribed in each State by the
legislature thereof, but the Congress may at any time by law
make or alter such regulations.
We have got a Presidential election. I don't see anything
in section 4 about a Presidential election. And so the question
I want to ask is would we as a Congress have the authority to
be a lot more aggressive than we have historically been in
making these kind of machine allocation decisions? I know it is
micromanagement, but if we want a fair Presidential election,
and we want to hold ourselves up around the world as the
pinnacle of democracy, do we, under those circumstances, have
more authority in a Presidential election, and how could we do
that?
Maybe I will let Mr. Blackwell go first on his part, and
then you go second.
Mr. Blackwell. Congressman Watt, the answer to your
question ties into what Mr. Scott was asking also. There is a
practical consideration of dollars and cents. Now, if you tell
secretaries of state that you can have budgets allocated by the
general assembly on an anticipated turnout increase so that you
can now redistribute voting machines, then I am sure a lot of
folks would be anticipatory in the number of machines----
Mr. Watt. You are talking about a budget matter, former
Secretary Blackwell.
Mr. Blackwell. I am talking about number of machines, sir.
Mr. Watt. I am talking about the allocation of machines.
Let me read you what your recommendation is again.
Mr. Blackwell. But you have to have the machines to
allocate. And you are saying let us be forward-looking and
anticipate----
Mr. Watt. That is one part of it. Let me read you what you
said. You said you adopt what you say, and I am telling you
that what you say, if read the way you said it, doesn't make
sense to me. Maybe it makes sense to you. You said, boards of
election around the country should use the record turnout
figures from 2004 to better anticipate precinct by precinct
demands.
So basically what you are saying, I should look at 2004. I
got a selected number of machines. And I can anticipate that
the precinct-by-precinct turnouts are going to be equal. I can
have 100 machines. In this election, you are going to have a
whole different pattern of turnout, even within the State.
Mr. Blackwell. If you look at my complete statement----
Mr. Watt. I am reading the complete statement. Let me read
it to you: Boards of election around the country should use the
record turnout figures for 2004 to better anticipate precinct
by precinct demand on voting equipment.
Mr. Blackwell. Keep reading, because the big number is 1 to
75, sir. So go all the way down to that, and you will begin to
understand the management and fiscal realities the secretaries
of state have to live within. And if you will look at that----
Mr. Watt. I understand management and fiscal realities, but
if I had a million, gazillion dollars, Mr. Blackwell, I
wouldn't allocate 2008 machines based on 2004 turnout. That
would be the ultimate act of insanity, in my opinion.
Mr. Blackwell. Because you don't, Congressman Watt----
Mr. Nadler. The gentleman's time has expired. The witness
can respond briefly.
Mr. Blackwell. Because you don't. Secretaries of state are
allocated budgets, and boards of elections are allocated
budgets from their county commissioners, so they can only
distribute machines based on the dollars that they have to
purchase machines.
Mr. Nadler. Thank you.
Mr. Tokaji wanted to comment.
Mr. Tokaji. I will try to briefly respond.
Mr. Watt. On the second part.
Mr. Tokaji. On the second half of your question.
My opinion is that Congress would have the authority under
Article I, section 4 of the Constitution, the elections clause,
to regulate the number of voters per machine for U.S. House and
U.S. Senate elections.
Mr. Nadler. Presidential elections?
Mr. Tokaji. Presidential elections, Article I, section 4
wouldn't give that power. There might, however, be authority to
protect the fundamental right to vote under section 5 of the
14th amendment to the Constitution.
Mr. Nadler. Thank you. The time of the gentleman----
Mr. Watt. I ask unanimous consent for 15 seconds.
Mr. Nadler. Without objection.
Mr. Watt. Just to argue with his interpretation of this,
this gives the right to States to allocate for House and
Senate. It doesn't say anything about President. Doesn't give
Congress the right. I think you got it backwards.
Mr. Tokaji. Correct. Congress can make or alter such
regulations for House and Senate elections.
Mr. Watt. So you are saying because this gives us no
authority under Presidential elections, we would have to find
authority to regulate a Presidential election somewhere else?
Mr. Tokaji. That provision, that is correct, does not
expressly give Congress authority to regulate.
Mr. Nadler. The gentleman's time has expired.
I would simply point out that if Congress decided to
regulate a congressional election, it is automatically----
Mr. Tokaji. That would get the job done, yes.
Mr. Nadler. I thank the panel for its testimony.
I will point out the announcement I usually make at the
conclusion of the hearing that, without objection, your written
statements are made a part of the record in their entirety, and
you will have a few legislative days to respond to any
questions which we may send to you or to expand upon your
testimony.
I thank the panel.
Mr. Nadler. I would ask our second panel of witnesses to
come forward.
While we are engaging in our maneuver here, I will read the
biographies of the second panel.
Gilda Daniels is an assistant professor of law at the
University of Baltimore School of Law. Professor Daniels joined
the U.S. Department of Justice as a staff attorney in 1995.
Between 1998 and 2000, Professor Daniels worked for the Lawyers
Committee for Civil Rights Under the Law as a voting rights
staff attorney. She then returned to the Department of Justice
as Deputy Chief of the Voting Section in the Civil Rights
Division and remained there until transitioning to academia in
2006.
Prior to working on voting rights issues, Professor Daniels
represented death row inmates and brought prison condition
cases at the Southern Center for Human Rights. Professor
Daniels was a Root-Tilden-Snow scholar at New York University
School of Law.
Hans von Spakovsky is a visiting scholar with the Heritage
Foundation. During his tenure at the foundation, he has written
a host of publications on voting and election-related issues.
Mr. von Spakovsky has served as a member of the first Board of
Advisors for the U.S. Election Assistance Commission and spent
5 years as a member of Fulton County Board of Registration and
Elections.
At the Department of Justice, Mr. Spakovsky served from
2002 to 2005 as counsel to the Assistant Attorney General on
Civil Rights, providing advice in enforcing the Voting Rights
Act and Help America Vote Act of 2002. In 2006 and 2007. Mr.
Spakovsky was a Commissioner of the Federal Elections
Commission.
J. Gerald Hebert is executive director and director of
litigation at the Campaign Legal Center. From 1973 to 1994, Mr.
Hebert served in various capacities within the Department of
Justice, including Acting Chief, Deputy Chief, and special
litigation counsel in the Voting Section of the Civil Rights
Division. As chief trial counsel within the DOJ, Mr. Hebert
litigated over 100 voting rights lawsuits, and from 1994 to
1995, he was a part-time staff attorney with the Lawyers
Committee for Civil Rights Under the Law, specializing in
voting rights cases. As an adjunct professor of law at
Georgetown University Law Center, he instructed courses on
voting rights, election law, and campaign finance regulation.
Before we begin, it is customary for the Committee to swear
in its witnesses. If you would please stand and raise your
right hand to take the oath.
[Witnesses sworn.]
Mr. Nadler. Let the record reflect the witnesses answered
in the affirmative.
You may be seated.
Without objection, your written statements are made a part
of the record in their entirety. We would ask each of you to
summarize your testimony in 5 minutes or less. As a reminder to
help you keep time, there is a timing light at your table. When
1 minute remains, the light will switch from green to yellow
and then to red when the 5 minutes are up.
The first witness is Professor Daniels.
TESTIMONY OF GILDA R. DANIELS, ASSISTANT PROFESSOR OF LAW,
UNIVERSITY OF BALTIMORE SCHOOL OF LAW
Ms. Daniels. Thank you, Mr. Chairman and Members of this
Committee. It is a privilege and an honor to appear before you
today to discuss ways that the Department of Justice can
proactively address election administration issues prior to
November 2008.
I have more than a decade of voting rights experience and
served as a Deputy Chief under both the Clinton and Bush
administrations. Presently I am an assistant professor at the
University of Baltimore School of Law, where I teach election
law, among other topics.
I was a Deputy Chief in 2000 when the country was crippled
with hanging chads, dimpled ballots, and faulty voting
machines, and worked within the Voting Section to address the
myriad of issues that arose during that election.
The 2004 election enjoyed its share of election
administration problems, such as the misuse of provisional
ballots, overzealous poll watchers, and ill-advised voter
purges. In light of the problems and issues with the last two
Presidential elections, it is vitally important that the
Department use the full breadth of its statutory authority to
act proactively to ensure that our Democratic process provides
every eligible citizen the opportunity to access the ballot and
ensure that that ballot is counted.
In 2004, in my estimation, DOJ's perspective was too
retrospective and not preventive. An inordinate amount of
resources went into election day activities. In order to
protect the fundamental right to vote, the government must act
prior to election day.
Although the Voting Section dispatched more personnel to
observe elections and upgraded its tracking of election day
complaints, some of the election coverage merely consisted of
an attorney with a cell phone in a U.S. attorney's office. In
order to have a meaningful presence that will dissuade
political operatives from manipulating the voting process to
disenfranchise eligible citizens, the Department should
initiate contact with both State election officials and
organizations to engage in a significant exchange of
information in a nonpartisan and proactive way.
In my written testimony I have outlined six critical
problem areas during the 2004 election cycle and proposed steps
that the Justice Department should take to ensure that these
problem areas are not repeated this November. I will highlight
a few of those areas here.
First, voter registration. In 2004, the Department received
a high number of calls from persons who stated that they
registered to vote, yet their names were not on the voter
roles. In many instances, these persons were new registrants,
and their voter registration application was not processed. To
remedy this, State election officials should ensure that the
counties are processing voter registration applications in a
timely manner. The Department of Justice should provide more
oversight to ensure that jurisdictions are not rejecting
applications that provide sufficient information to determine
the eligibility of an applicant.
Further, the Department should encourage jurisdictions to
do more followup with voters if the registration application
does not provide enough information to determine eligibility.
Voter purges. A recent survey on voter purges reveal that
two-thirds of the responding States did not require election
officials to notify voters when they purged them from the voter
roles, denying these voters an opportunity to contest erroneous
purges. Instead of carrying out the primary function of the
National Voter Registration Act to increase voter registration,
the DOJ's Voting Section is concentrating its NVRA enforcement
priority on pressuring States to conduct massive purges of
their voter rolls.
Admittedly, States do need to maintain accurate voter
roles, and DOJ should ensure that these and other purges do not
violate the safeguard provisions of the NVRA. At the same time,
it should not abandon other NVRA enforcement.
Voter ID. In 2000, only 11 States required all voters to
show some form of identification. In 2006, the number doubled
to 22 States requiring all voters to present some form of ID.
Any change in rules that affect the voters' ability to cast a
ballot, such as polling place changes and voter ID, can cause
voter confusion.
It is important to note that new voter ID laws adversely
impact students. In 2004, DOJ received numerous calls from
students who were told that their university ID would not be
accepted. Consequently, it is essential that the Department
communicate with States to make sure that they are in
compliance with voting statutes, and that any changes of voting
status or location is clearly communicated to the voter well
before the election.
Finally, election coverage. Because of the high attorney
turnover in the Voting Section, this is probably the first
Presidential election for most of the Voting Section staff
attorneys. The attorneys who left between 2002 and 2006 have
significantly more litigation and election coverage experience
than the present staff. Accordingly, it is crucial that in
preparing for election coverage, the section should use its
preelection calls to ensure that jurisdictions are prepared. It
should release the list of jurisdictions where it will provide
election observers at least 1 week prior to election day. It
should also limit the practice of utilizing the U.S. Attorney's
offices and the FBI, which were primarily trained in
identifying election crimes or voter fraud.
After the 2000 election, and certainly by 2002, the Civil
Rights Division Voting Section shifted its focus from enforcing
the voting rights of minorities under section 2 of the Voting
Rights Act, as evidenced in the lack of cases brought on behalf
of African Americans, and to the enforcement of section 203 for
language minorities, the protection of overseas and military
voters, HAVA compliance, and voter fraud issues. This lack of
enforcement of the Voting Rights Act would indicate a well-
documented shift away from enforcement of statutes that require
free and full access to a new emphasis on restricting the
ballot in the name of integrity. This must be corrected.
In conclusion, DOJ should renew efforts to coordinate with
civil rights and other organizations to discuss election day
preparedness, and learn how these groups plan to approach
various voting irregularities, and share how DOJ will address
issues.
Once a person is turned away, purged, or given a
provisional ballot that is ultimately not counted, after
election day very little can be done to remedy that lost vote;
while at the same time the disenfranchising of America's voters
occur, one uncounted provisional ballot, one voter ID, one
mistaken purge at a time to create a cumulative effect that
could ultimately challenge the notion of our participatory
democracy. Consequently, the best time to correct for potential
disenfranchising methods is to establish a proactive plan now.
Thank you.
Mr. Nadler. I thank the witness.
[The prepared statement of Ms. Daniels follows:]
Prepared Statement of Gilda R. Daniels
Chairman Conyers, and members of this Subcommittee, it is a
privilege and an honor to appear before you today to discuss ways that
the Department of Justice (DOJ) can proactively address election
administration issues prior to November 2008.
I served in the DOJ, Civil Rights Division, and Voting Section as a
staff attorney from 1995 to 1998, then left to work in the Lawyers'
Committee for Civil Rights Under Law in its Voting Rights Project for
two years and returned to the DOJ in the capacity of Deputy Chief in
the Civil Rights Division, Voting Section. I served as Deputy Chief for
six years, from 2000 to 2006 before leaving to become an Assistant
Professor at the University of Baltimore, School of Law, where I teach
Election Law among other topics. I have more than a decade of voting
rights experience and served as a Deputy Chief under both the Clinton
and Bush administrations. I was a Deputy Chief in 2000, when the
country was crippled with hanging chads, dimpled ballots and faulty
voting machines and worked within the Voting Section to address the
myriad of issues that arose during that election.
Since the 2000 Presidential election the voting rights vocabulary
has expanded to include terms such as, ``voting irregularities'' and
``election protection'' and created a new debate regarding voter access
versus voter integrity. Despite the debates and new legislation in the
form of the Help America Vote Act (HAVA),\1\ and the continued
enforcement of other voting statutes such as the Voting Rights Act \2\
and the National Voter Registration Act, (NVRA), problems persist in
the operation of our participatory democracy.
---------------------------------------------------------------------------
\1\ The Help America Vote Act of 2002 has the stated purpose of
with the stated purpose of ``establish[ing] a program to provide funds
to States to replace punch card voting systems, to establish the
Election Assistance Commission (EAC) to assist in the administration of
federal elections and to otherwise provide assistance with the
administration of certain federal election laws and programs, to
establish minimum election administration standards for States and
units of local government with responsibility for the administration of
federal elections, and for other purposes.'' Help America Vote Act
(HAVA), Pub. L. No. 107-252, 116 Stat. 1666 (2002); The HAVA is
codified at 42 U.S.C. 15301 to 15545.
\2\ The Voting Rights Act, (VRA), which has been heralded as the
most effective piece of Congressional legislation in our nation's
history, outlawed practices such as literacy tests, empowered federal
registrars to register citizens to vote, and gave the Attorney General
the power to bring widespread litigation instead of the piecemeal
approach of the past. As a result, wide disparities between blacks and
whites in voter registration narrowed considerably throughout the South
and the number of African-American elected officials increased
tremendously.
---------------------------------------------------------------------------
What we have witnessed since 2000, particularly during the 2004
election, gave us some reason to hope but also reason for concern.
Although outdated voting machines were not the primary problem in 2004,
the use of electronic voting machines birthed new concerns about
accuracy and reliability, along with questions regarding poll workers'
ability to master the technology. This election enjoyed its share of
election administration problems such as the misuse of provisional
ballots,\3\ overzealous poll watchers, and ill-advised voter purges.
---------------------------------------------------------------------------
\3\ The Help America Vote Act requires states to provide
provisional ballots, which allow voters whom election administrators
would otherwise deem ineligible for reasons ranging from a lack of
required ID to a voters name not appearing on the list of registered
voters, to cast ballots despite lacking the proper identification or,
in some states, attempting to vote in the wrong precinct.
---------------------------------------------------------------------------
Many of the calls received or infractions observed on Election Day
do not rise to a legally actionable level. After any election, however,
no immediate remedy exists for the mistakenly purged voter or an
uncounted provisional ballot. Disenfranchisement, however, occurs one
voter at a time and can create a pattern for a jurisdiction or a
political party that should be addressed and thwarted well before
Election Day. In light of the problems and issues with the last two
Presidential elections, it is vitally important that the Department use
the full breadth of its statutory authority to act proactively to
ensure that our democratic process provides every eligible citizen the
opportunity to access the ballot and ensure that the ballot will be
counted.
After the 2000 election and certainly by 2002, the Civil Rights
Division, Voting Section shifted its focus from enforcing the voting
rights of minorities under Section 2 of the VRA, as evidenced in the
lack of cases brought on behalf of African-Americans, to enforcement of
Section 203 for language minorities, the protection of overseas and
military voters under UOCAVA, HAVA compliance and voter integrity
(fraud) issues. In fact, this administration brought the first case
pursuant to Section 2 on behalf of white voters in Noxubee, MS.\4\ This
lack of enforcement of the Voting Rights Act would indicate a well
documented shift away from enforcement of statutes that require free
and full access to a new emphasis on restricting the ballot in the name
of integrity. This must be corrected.
---------------------------------------------------------------------------
\4\ In 2005, the DOJ filed suit against the Noxubee County
Democratic Executive Committee, Noxubee County Election Commission and
Ike Brown, Chair of the Democratic Executive Committee in Noxubee, MS.
See, United States v. Ike Brown, et.al., 494 F.Supp.2d 440 (S.D.Miss.
2007)
---------------------------------------------------------------------------
The problem with the Voting Section's changed perspective
particularly in 2004 was that it was too retrospective and not
preventative. In order to protect the fundamental right to vote, the
government must act prior to Election Day. Although the Voting Section
dispatched more personnel to observe elections and upgraded its
tracking of Election Day complaints, some of the ``election coverage''
merely consisted of an attorney with a cell phone in the US Attorneys'
office. In order to have a meaningful presence that will dissuade
political operatives from manipulating the voting process to
disenfranchise eligible citizens, the Department should initiate
contact with both state election officials and organizations to engage
in a significant exchange of information in a nonpartisan and proactive
way.
Based upon my experience, I suggest that the DOJ employ the
following proactive enforcement practices:
Voter Registration. The electoral process requires that states
compile lists of eligible and legal voters. The NVRA requires States to
maintain voter registration lists for federal elections. The NVRA
considers applications received or postmarked at least 30 days before a
federal election as timely. It also requires that election officials
notify voters that their applications were accepted or rejected. The
concern over voter registration is twofold: 1) the increase in state
laws that restrict an organization's ability to register citizens
(third-party registration) and 2) the increase in voter registration
applications and election administrators' ability to process those
applications prior to Election Day. Some states, e.g., Ohio, Florida,
and Georgia, have made changes to voter registration procedures that
make it more difficult for third parties, such as the League of Women
Voters and the NAACP, to conduct voter registration drives. Litigation
has already commenced in Ohio, Florida, Georgia and Pennsylvania. The
inability of groups to perform voter registration could effectively
diminish the number of eligible voters, who are able to register.
In 2004, the Department received a high number of calls from
persons who stated that they registered to vote, yet their names were
not on the voter rolls. In many instances, these persons were new
registrants and their voter registration application was not processed.
It is hoped that the remarkable increase in voters for the Presidential
primaries alleviated some administrative processing problems.
State election officials should ensure that the counties are
processing voter registration applications in a timely manner. The
Department should contact those states where problems occurred in 2004,
2006 and during the Presidential primary season to make certain that
jurisdictions are in compliance with voting rights statutes. DOJ should
provide more oversight to ensure that jurisdictions are not rejecting
applications that provide sufficient information to determine the
eligibility of an applicant. Further, it should encourage jurisdictions
to do more follow-up with voters if the registration application does
not provide enough information to determine eligibility
Voter Purges. The NVRA also requires States to keep accurate and
current voter registration lists, including purging those persons who
have died or moved. Before removing persons or performing list
maintenance procedures, the NVRA requires that list maintenance
programs are uniform and non-discriminatory, comply with the Voting
Rights Act, and can not occur 90 days before a federal election. States
may only remove voters after complying with the NVRA's fail-safe
provisions, which allow for removal of voters from registration lists
if they have ``been convicted of a disqualifying crime or adjudged
mentally incapacitated,'' according to state law.\5\ The process of
removing ineligible voters from state compiled registered voter lists
is called voter purge. Although state governments have passed
legislation that causes specific individuals, such as felons, to be
ineligible voters, voter purge can also cause the removal or
invalidation of eligible and legal voters from voter lists. Florida has
been the center of numerous electoral debates due to the conflicts and
controversies that surrounded the 2000 elections. Critics have called
the voter purges in Florida during the 2000 election as ``A wildly
inaccurate voter purge lists that mistakenly identified 8,000
Floridians as felons thus ineligible to vote and that listed 2,300
felons, despite the fact that the state had restored their civil
rights.'' \6\
---------------------------------------------------------------------------
\5\ The NVRA also provides additional safeguards under which
registered voters would be able to vote notwithstanding a change in
address in certain circumstances. For example, voters who move within a
district or a precinct will retain the right to vote even if they have
not re-registered at their new address, which is at odds with the way
some states administer provisional ballots, only counting those cast in
the proper precinct.
\6\ Verified Voting Foundation, Open Voter Purge List, http://
www.verifiedvotingfoundation.org/article.php?id=2394 (June 12, 2004)
---------------------------------------------------------------------------
There are various problems surrounding how voter lists are purged.
Approximately, twenty-five percent of the states in an ACLU/Demos
survey reported that they compile purge lists without reference to any
legislative standards. About half of those surveyed purged their voter
lists using only an individual's name and address, not a one hundred
percent match involving full name and social security number. No state
surveyed had codified any specific or minimum set of criteria for its
officials to use in ensuring that an individual with a felony
conviction is the same individual being purged from the voter rolls.
Two-thirds of the states surveyed do not require elections officials to
notify voters when they purge them from the voter rolls, denying these
voters an opportunity to contest erroneous purges.
Couple this with reports that DOJ threatened to sue ten states to
purge voter rolls before the 2008 presidential election.\7\ Concerns
have been raised that ``the Justice Department's Voting Section is
ignoring the primary purpose of the NVRA to `establish procedures that
will increase the number of eligible citizens who register to vote in
elections for federal office.' '' \8\ Instead of carrying out the
primary function of the NVRA to increase voter registration, the DOJ's
Voting Section is concentrating its NVRA enforcement priority on
pressuring states to conduct massive purges of their voter rolls.
Notwithstanding these arguments, states do need to maintain accurate
voter rolls and DOJ should ensure that these and other purges do not
violate the safeguard provisions of the NVRA. At the same time, it
should not abandon other NVRA enforcement.
---------------------------------------------------------------------------
\7\ See, New York Times Opinions/Editorial, What Congress Should
Do, October 24, 2004Stephen Roosevelt, Bush Administration
Orchestrating Massive Voter Purge Before 2008 Election,
Veteransforcommonsense.org (July 17, 2007).
\8\ Id.
---------------------------------------------------------------------------
Voter ID. Many states changed their voter id requirements to comply
with the HAVA, which required that all first time voters who registered
by mail without providing id verifying info must vote in person and
provide an acceptable form of id.\9\ In 2000, only eleven states
required all voters to show identification. In 2006, the number doubled
to twenty-two states requiring all voters to present some form of id.
Opponents have argued that voter id laws cause an undue burden on poor,
minority, disabled, and elderly citizens and that the expense in
obtaining even the ``free'' ids are cost prohibitive for many
Americans.\10\ Proponents argue that more restrictive voter id laws are
needed to prevent voter fraud.
---------------------------------------------------------------------------
\9\ HAVA requires the following identification: if voting in
person, a drivers license or other photo id, a copy of a current
utility bill, bank statement, government check, paycheck, or other
government document that shows the name and address of the voter; or if
voting by mail, voter must submit with the ballot a copy of a current
and valid photo identification; or a copy of a current utility bill,
bank statement, government check, paycheck, or other government
document that shows the name and address of the voter.
\10\ New voter id laws could adversely impact students, who may
have a university id, but lack a photo id with an address within the
state.
---------------------------------------------------------------------------
The most restrictive requirement was passed in Indiana, which
requires all voters to show a photo id before casting ballots. If the
voter lacks a photo id, she must vote provisionally and subsequently
return to the clerk's office and produce a photo id or sign an
indigency affidavit before the vote can be counted. The Supreme Court
recently upheld this law.\11\ In 2005, Georgia's passage of a similar
voter id law set off what has been called a ``firestorm'' of activity
in the media. Georgia is a state covered by Section 5 of the VRA, which
requires specific jurisdictions to submit all voting changes--including
but not limited to, polling place changes and redistricting--to either
the United States Attorney General or the United States District Court
for the District of Columbia for approval.\12\ Georgia's submission to
the Attorney General and the subsequent preclearance of the id
legislation only fueled the flames. The proposed bill reduced the
acceptable forms of voter identification from seventeen to five: a
driver's license, a passport, a state or government issued ID, a
military ID or a tribal ID.\13\
---------------------------------------------------------------------------
\11\ Recently, in Crawford v. Marion County, the Supreme Court
found that the Indiana legislature's purported rationale for passing
the most restrictive voter id law in the country did not violate
constitutional principles.
\12\ See, 28 C.F.R. Part 51, Section 5 Regulations.
\13\ The 17 acceptable forms of identification were as follows:
valid Georgia driver's license; valid identification card issued by a
branch, department, agency, or entity of the State of Georgia; another
state, or the United States authorized by law to issue personal
identification; valid United States passport; valid employee
identification card containing a photograph of the elector and issued
by any branch, department, agency or entity of the United States
government, the State of Georgia, or any county, municipality, board,
authority or other entity of Georgia; valid employee identification
card contain a photograph of the elector issued by any employer of the
elector in the ordinary course of business; valid student
identification containing a photograph of the elector from any public
or private college, university, or postgraduate technical or
professional school located within the State of Georgia; valid Georgia
license to carry a pistol or revolver; valid pilot's license; US
military ID; birth certificate; Social security card; certified
naturalization documentation; copy of court records showing adoption,
name or sex change; utility bill; bank statement showing name and
address of the elector; government check or payment with name and
address of the elector or other government document showing name and
address of the elector. Ga. Code Ann. Sec. 21-2-417.
---------------------------------------------------------------------------
Although courts and the Attorney General have found these voter id
laws constitutional, opponents continue their concern for the impact on
those less likely to possess the requisite identification and their
ability to cast a ballot. With the passage of these more restrictive
laws in Georgia and Ohio and more states following suit, it is
imperative that the DOJ monitor those states where the voter id laws
have changed, since the 2004 election. Any change in rules that affect
a voters' ability to cast a ballot, such as polling place changes,
voter id, etc., can cause voter confusion. It is essential that DOJ
communicate with states to make sure that they are in compliance with
voting statutes and that any changes of voting status or location is
clearly communicated to the voter, well before the election.
Poll Watchers. Most states allow candidates to designate persons to
watch the election process inside the polling place. These poll
watchers, however, are not allowed to interfere with the process. In
2004, political candidates and parties dispatched thousands of
attorneys and other individuals to ``monitor'' the administration of
the election. We saw poll watchers launch an enormous number of
strategic challenges to voters' eligibility, some based on race and
language ability. Additionally, in some instances, at any given time,
polls had more watchers than workers or actual voters.
In 2004, Republicans in Wisconsin attempted to challenge the
registrations of 5,600 voters in Milwaukee but were turned down in a
unanimous decision by the city's bipartisan election board. In Ohio,
Republicans challenged 35,000 voters, after compiling their names
through a caging scheme.\14\ The people on the list had either refused
to sign letters delivered by the Republican Party or the letters had
been returned as undelivered. Voters in Ohio won an injunction
preventing challengers from remaining at voting-stations.\15\
---------------------------------------------------------------------------
\14\ With one type of caging, a political party sends registered
mail to addresses of registered voters. If the mail is returned as
undeliverable--because, for example, the voter refuses to sign for it,
the voter isn't present for delivery, or the voter is homeless--the
party uses that fact to challenge the registration, arguing that
because the voter could not be reached at the address, the registration
is fraudulent. A political party challenges the validity of a voter's
registration; for the voter's ballot to be counted, the voter must
prove that their registration is valid.
\15\ Spencer v. Blackwell, 347 F.Supp.2d 528 S.D.Ohio (2004).
---------------------------------------------------------------------------
The Department should send a letter to states and organizations
where this practice was problematic. Outreach, through the form of a
letter, to organizations and state entities, should remind these groups
and elected officials of the voters' rights and the process the poll
watcher and poll worker should follow. Although the process for
designating a poll watcher varies state to state these laws must comply
with Section 2 of the Voting Rights Act, which outlaws discriminatory
voting practices or procedures.
Provisional Ballots. A consequence of excessive voter challenges
was the use of provisional ballots. In some instances, due to
misinformation or a lack of poll worker training, poll workers asked
the challenged voter to cast a provisional ballot. In some states, if a
voter casts a provisional ballot in the wrong polling place, pursuant
to state rules, the provisional ballot was not counted.\16\ DOJ should
make certain that jurisdictions are not administering provisional
ballots with a discriminatory purpose or a discriminatory result.
---------------------------------------------------------------------------
\16\ The administration of provisional ballots, however, has been
called into question for the myriad of ways that election
administrators determine whether to count the ballot. In 2004, the
first year that HAVA required state's to provide provisional ballots,
nearly 1.9 million of those ballots were cast and 1.2 million
provisional ballots were counted, which left more than half a million
people disenfranchised. See, Election Data Services, Election Day
Survey, conducted for the U.S. Election Assistance Commission, at 6-5
(Sept. 27 2005). Moreover, poll worker confusion and unavailable
ballots accounted for even more disparities. A People for the American
Way report found:
There was widespread confusion over the proper use of
provisional ballots, and widely different regulations from
state to state--even from one polling place to the next--as
---------------------------------------------------------------------------
to the use and ultimate recording of these ballots.
See, People for the American Way et al., Shattering the Myth: An
Initial Snapshot of Voter Disenfranchisement in the 2004 Elections, at
8 (December 2004).
Election Coverage. Under Section 4 of the Voting Rights Act, the
Attorney General may send federal observers to any jurisdiction that is
required to submit all of its voting changes for review under Section 5
of the VRA or where provided in a Consent Decree. The majority of the
Voting Section's preparation relies upon its election coverage, which
dispatches DOJ personnel under the direction of Voting Section
attorneys to observe Election Day activities and report any
irregularities to Voting Section managers and then work with the
jurisdiction to correct those problems. The Voting Section, however,
has limited staff and with the high rate of career attorney turnover,
the level of expertise necessary in the area of election coverage will
require an even higher level of training. Because of the Voting
Section's limited number of senior well trained staff, the various
Election Protection programs can, at a minimum, provide the
Department's toll free number and have a designated person to relay
vital information of voting irregularities or voting rights statute
violations to the Department. Additionally, in preparing for election
coverage, the Section should use its pre-election calls to insure that
jurisdictions are prepared. It should also release the list of
jurisdictions where it will provide election observers at least one
week prior to Election Day. It should also limit the recent practice of
utilizing the US Attorneys' offices and the FBI, which were primarily
trained in identifying voter fraud.
Today, American citizens are registering to vote at exceptionally
high rates. Minority and young voters are energized and eager to
turnout and participate in what has certainly proven to be one of the
most historic election cycles in our lifetimes. However, these efforts
will prove futile if ultimately, these voters are unable to cast
ballots that will count on Election Day. In my testimony, I have
outlined some of the critical problem areas during the 2004 election
cycle and proposed steps that the Justice Department should take to
ensure that these problems are not repeated this November. However, it
is essential that the Department act now.
In conclusion, DOJ should renew efforts to coordinate with civil
rights and other organizations to discuss Election Day preparedness and
learn how those groups plan to approach various voting irregularities
and share how DOJ will address issues. Once a person is turned away,
purged, or given a provisional ballot that is ultimately not counted,
after Election Day very little can be done to remedy that lost vote.
While at the same time, the disenfranchising of America's voters occur
one uncounted provisional ballot, one voter id, one mistaken purge at a
time to create a cumulative effect that could ultimately challenge the
notion of our participatory democracy.\17\ Consequently, the best time
to correct for potential disenfranchising methods is to establish a
proactive plan NOW.
---------------------------------------------------------------------------
\17\ For further discussion on the cumulative effective of new
millennium disenfranchising methods, see, Gilda R. Daniels, A Vote
Delayed is a Vote Denied: A Preemptive Approach to Eliminating Election
Administration Legislation that Disenfranchises Unwanted Voters,
forthcoming in the University of Louisville Law Review, November 2008.
Mr. Nadler. Mr. von Spakovsky is recognized for 5 minutes.
TESTIMONY OF HANS A. von SPAKOVSKY, VISITING SCHOLAR, THE
HERITAGE FOUNDATION
Mr. von Spakovsky. Thank you, Mr. Chairman. I appreciate
the invitation to be here today.
The largest group of disenfranchised voters in the country
by far remain overseas voters, particularly military voters and
their families. The Uniform Overseas Citizens Absentee Voting
Act of 1986 guarantees their right to vote. However, out of an
estimated 6 million potentially eligible UOCAVA voters, the
EAC, Election Assistance Commission's, 2006 survey found that
less than a million ballots were requested. So only 16\1/2\
percent of the eligible overseas voters sought to vote. Of that
million ballots, only 330,000 were actually cast or counted,
resulting in a turnout of only 5.5 percent of the eligible
overseas voters.
Seventy percent of those ballots were not counted because
they were returned--the ballots were returned--uncompleted
ballots were returned to election officials as undeliverable.
The others were not counted because they returned after the
deadline for receipt.
These problems were due to the fact that military personnel
moved fairly often to new bases and locations, and because of
the slowness of the overseas mail system that's still used for
these absentee ballots. It can take more than 30 days for a
ballot to make a round trip between the United States base in
Iraq, for example, and coming back. And it is vitally important
that States mail out absentee ballots at least 30 days before
the election and hopefully 40--at least 45.
In 2002 and 2004, DOJ was forced to file lawsuits after
counties and various States such as Georgia, Pennsylvania, and
Texas failed to send out absentee ballots in time for overseas
voters to receive them. It's essential that the Department of
Justice and the Federal Voting Assistance Program office at DOD
set up an extensive monitoring program to survey and track the
3,000-plus counties around the country that are responsible for
sending out these ballots and make sure that they send them out
in time.
The FVAP office also needs to set up an extensive data
matching service for election officials to check the mailing
addresses of UOCAVA voters. They already do this to some
extent, but they need an automated service that can handle
large lists of voters and can send e-mails to service members,
notifying them of the problem. The mail delay could be cut in
half through H.R. 5673, that's the Military Voting Protection
Act, which has been introduced in Congress and which would
provide international express mail pickup of overseas military
ballots for return to the U.S.
Another problem we have are noncitizens, both illegal and
legal residents, unlawfully registering and voting in our
elections. Election officials have no systematic way of
checking citizenship of registered voters, but there are enough
reports of specific incidents, convictions and other cases from
various States to leave no doubt that aliens are illegally
participating in our election.
In 1985, the regional INS Director in Illinois testified
that there were 25,000 illegal and 40,000 legal aliens
registered in Chicago. Harris and Bexar County, Texas and
Maricopa County, Arizona have recently found aliens registered
and voting in their counties. And DOJ has convicted aliens in
Alaska, Florida, D.C., and Colorado for violating Federal law
and voting in Federal elections. Half of the 9/11 hijackers
were registered to vote.
DHS has consistently refused to cooperate with local
officials in checking the citizenship status of registered
voters. This is a violation of 8 U.S.C. 1373, and it should be
investigated by Congress.
Local and State election officials should be given access
to the same electronic databases maintained by DHS, such as E-
Verify, that are used by employers to check citizenship status
of prospective employees. And the NVRA ought to be amended so
that it requires District Court clerks and Federal courts to
notify election officials when jurors summoned from voter
registration lists are excused from jury duty because they are
not citizens. That would be similar to section 8(g) of the
NVRA, which already exists and which requires U.S. attorneys to
notify local election officials when individuals are convicted
of Federal felonies.
A number of States, such as Ohio, Iowa, South Dakota, are
violating section 303(b) of HAVA. That's the provision that
Congress added requiring individuals who register to answer a
citizenship question. These States are registering individuals
even when they leave the citizenship question blank.
Another problem is that State DMVs, in order to comply with
NVRA, as they believe it, automatically offer voter
registration to every individual who comes in for a driver's
license without distinguishing between individuals who are
coming in who are not U.S. citizens.
I would conclude by saying that while all of these are
problems that need to be dealt with, overall we have an
election process, I think, that we can be proud of and one that
does strive to enfranchise all eligible Americans so they can
vote. And it's something we should not lose sight of as we do
continue to work to improve our democratic system.
Thanks.
[The articles submitted by Mr. von Spakovsky follows:]
Articles Submitted by Hans A. von Spakovsky
Mr. Nadler. Thank you. Mr. Hebert is recognized for 5
minutes.
TESTIMONY OF J. GERALD HEBERT, EXECUTIVE DIRECTOR AND DIRECTOR
OF LITIGATION, THE CAMPAIGN LEGAL CENTER
Mr. Hebert. Chairman Nadler, Ranking Member Franks, and
Members of the Committee, thank you again for the invitation
and opportunity to appear before the Subcommittee today and
discuss lessons learned from 2004. I have a number of topics to
try to cover in my 5 minutes.
First, the continuing problem that we have and we see today
of States implementing purges indiscriminately of statewide
voter registration rolls. States were obligated by the Help
America Vote Act of 2002, HAVA for short, to establish a
statewide computerized voter registration list. To verify the
accuracy of the data HAVA requires State officials to match
information in that database with either data from the DMV or
data from the Social Security Administration.
Now, one of the most significant challenges that States
face is trying to do this match. In addition, of course the
data entry errors, slight differences in data sets, inclusion
of a middle initial, use of a maiden name, hyphenated names,
and so on, it results in a large number of mismatched records.
And consequently there is a real danger that on election day in
2008 some people may go thinking that they've registered to
vote and in fact due to the mismatch they will find out that
they aren't registered to vote.
It's important to note, and I think this is the key, that
HAVA does not require that voters be denied registration and
the right to cast a ballot if there hasn't been a successful
match of those databases.
The matching provision of HAVA relates to internal
recordkeeping of the States. It's not intended to penalize
voters when the State can't match up the information in the
database. Ironically, the tendency of some States toward
purging voter rolls when there's a mismatch in the databases
originated in part from the Civil Rights Division of the
Justice Department of all places, the unit charged with
enforcing election laws.
Back in 2003, when Mr. von Spakovsky worked in the Justice
Department, he issued an opinion letter to the State of
Maryland and he said that Congress obviously intended that when
the results--and I'm quoting here--the results indicate the
registrant is not eligible, has provided inaccurate or
fraudulent information or information cannot be verified, then
the application must be denied.
I believe this interpretation is not only incorrect, and
the Department of Justice has rescinded it of course since
then; it is also inconsistent with the whole purposes of the
Help America Vote Act. After all the statute is called the Help
America Vote Act, not help make the States Make It More
Difficult for Americans to Vote Act. So States would be wise
not to purge, purge voters due to mismatching, and likewise
should not use HAVA as an excuse for requiring voters who are
unable to be matched in the State's database to cast some kind
of a provisional ballot.
While I'm talking about HAVA, let me add HAVA's voter ID
requirements are perhaps the most easily misunderstood and
misapplied by election officials. HAVA requires--and we saw
this all the time when we were here talking about voter ID--
HAVA requires that those voters who go to vote for the first
time and who registered by mail must produce an ID in order to
vote. That's it. And it's not a photo ID, as Ms. Mitchell says,
it is not a government issued ID, there are all kinds of forms
of identification available.
Now here's one of the problems we're seeing with voter ID
laws. What we see in New Mexico, for example, in 2006 a recent
study showed that if you were Latino and you went to the polls
to vote, you were more likely to be required to produce an ID
than if you were an Anglo. And Asian Americans report those
same kinds of problems on election day.
So I think it's extremely important that local election
officials and State election officials be notified by the
Justice Department, Chairman Conyers, as you pointed out where
are they today, that they can't enforce voter ID laws if they
have them on the books in a discriminatory way. If everybody--
if there is a voter ID requirement, everybody should be
required to produce it. If there isn't one, then they shouldn't
be required to produce one at all.
Now, let me finish on one final topic and that is where is
the Justice Department today? Twenty-one years I devoted of my
career to the Justice Department, and I think one of the
biggest differences today is the fact that fortunately we don't
have a lot of partisan election officials in the Justice
Department today that you saw in 2004, people who tried to
advance a partisan agenda instead of enforcing even-handedly
the voting rights laws.
Let me just say that the steps the Department can take to
ensure that voting is done in an even-handed way and not
pursued in a partisan manner, they should assign monitors and
Federal poll watchers only to those places where there is
evidence of a possible civil rights violation or as part of an
ongoing investigation of election practices.
Another lesson learned from widespread--widespread public
suspicion that political reasons actually motivated the
placement of Federal poll watchers and Federal attorneys in
2004 is the following: The Department of Justice when it
announces locations where they are going to deploy Federal
observers should make it public in a general way that civil
rights concerns underlie their decisions, and it should
emphasize that the Department's Criminal Division has a
longstanding policy of not monitoring for election fraud
purposes and indeed does not conduct such investigations until
after an election so they won't run the risk of being accused
of trying to interfere with it.
Finally, let me just say that little came out recently at
the Civil Rights Division and Criminal Division voting
symposium at the Justice Department for their plans for
monitoring this year's elections. Congress should insist that
everyone from Attorney General Mukasey down to Civil Rights
Division, Acting Assistant Attorney General Grace Chung Becker,
down to the Voting Section Chief, Christopher Coates, explain
in detail their plans to monitor elections in the months ahead.
And they should be required in advance of the elections to
follow up with more detailed information when we get closer to
it. Given the level of politicization at the Justice
Department, that is the least that we should insist upon.
Thank you again for the opportunity to testify.
[The prepared statement of Mr. Hebert follows:]
Prepared Statement of J. Gerald Hebert
Mr. Nadler. I thank you, Mr. Hebert. We will now go to the
questioning, and I will recognize myself for 5 minutes for the
purpose of questions.
First, Mr. Hebert, in reporting on the Supreme Court
decision in the Indiana voter ID case in April, the New York
Times quoted Mr. von Spakovsky as saying, ``This decision not
only confirms the validity of photo ID laws but it completely
vindicates the Bush Justice Department and refutes those
critics who claim that the Department somehow acted improperly
when they approved Georgia's photo ID law in 2005.''
Do you take issue or do you agree with that statement and,
if so, why?
Mr. Hebert. I completely disagree with that statement for
the following reason. The Supreme Court in the Indiana voter ID
case said that the statute in Indiana was facially
constitutional. There were no allegations that the Indiana
statute violated the Voting Rights Act, which was a decision
the Justice Department made when it approved the Georgia voter
ID law. In Georgia the voter ID law that was approved by the
Justice Department, and Mr. von Spakovsky was part of that
decision-making process when they approved that voter ID law,
that was later struck down in the courts as an unconstitutional
poll tax. Georgia went back and adopted a new law that
eventually passed muster in the courts. So I don't think that--
--
Mr. Nadler. And that was in some respects different from
the Indiana ID law? You said the Indiana law would not have
been called a poll tax?
Mr. Hebert. That's correct. Because in Georgia they
actually required you to buy an ID in order to vote. In Indiana
it was provided free.
Mr. Nadler. I thank you.
Mr. von Spakovsky, in May of 2005, outgoing Deputy
Assistant Attorney General Bradshaw on his last days at the
Department issued a letter opinion to the State of Arizona.
That letter wrongly informed Arizona that it could stop voters
from receiving a provisional ballot if they did not have State
identification.
In September of the same year, 2005, Brad Schlozman sent a
letter to Arizona correcting the Department's opinion and
stated individuals can request and cast a provisional ballot
for any reason. In Mr. Schlozman's sworn testimony before the
Senate Justice Department committee he said he had nothing to
do with the drafting of the May 2005 letter, but it was
probably done by ``the voting counsel and the front office.''
Was that you?
Mr. von Spakovsky. I was the voting counsel in the front
office of the Civil Rights Division.
Mr. Nadler. So you drafted that letter or had input into
it?
Mr. von Spakovsky. Well, I think the letter you are talking
about was signed by Sheldon Bradshaw, not Brad Schlozman. Is
that the letter you're referring to?
Mr. Nadler. Yeah, the May 2005 letter, that's right.
Mr. von Spakovsky. Yes, I drafted the letter.
Mr. Nadler. Okay. Now during that year did you have
communications with the State of Arizona or the Secretary of
the State of Arizona in relation to Arizona's Proposition 200?
Mr. von Spakovsky. Frankly, Mr. Chairman, I don't recall. I
mean, at some point the Proposition 200 was submitted to the
Civil Rights Division for preclearance under section 5. And of
course one of my responsibilities was, you know, reviewing any
claims or files that came up from the Voting Section on section
5. So I--you know, whether someone at that office called about
that, you know, it may be, but I mean that was--3 or 4 years
ago. I frankly don't remember.
Mr. Nadler. Okay. All right. And a year later, in 2006,
when you were at the FEC, did you have any communication with
the Department of Justice or the State of Arizona about
Proposition 200 implementation?
Mr. von Spakovsky. No, sir.
Mr. Nadler. Okay. And I'm a bit curious about something
else. It has been reported that you worked for an organization
called the Voting Integrity Project prior to 2000; is that
correct?
Mr. von Spakovsky. I was on the Board of Advisors, yes.
Mr. Nadler. The Board of Advisors. So you didn't work for
them?
Mr. von Spakovsky. I did some contract work for them.
Mr. Nadler. And did this----
Mr. von Spakovsky. That was before I went to work for the
Justice Department, sir.
Mr. Nadler. Yes, prior to 2000.
Mr. von Spakovsky. Right.
Mr. Nadler. Now, it's been reported that the Voting
Integrity Project played a role in the Florida efforts to purge
alleged felons from the voting rolls in 2000.
Mr. von Spakovsky. That's false.
Mr. Nadler. That's not true?
Mr. von Spakovsky. That is not true.
Mr. Nadler. It had nothing to do with that?
Mr. von Spakovsky. No.
Mr. Nadler. Okay. Do you know who headed--did any private
organization have anything to do with that, to your knowledge?
Mr. von Spakovsky. My understanding of that just from
reading the papers is that the State of Florida hired a data
service company, I don't remember the name of it, to provide
them with a list. And I had absolutely nothing to do with it.
That's one of these stories that somehow got on to the
blogosphere and then got repeated all over. It's not true.
Mr. Nadler. Good to hear.
Now critics have called the voter purges in Florida during
the 2000 elections a wildly inaccurate voter purge list that
mistakenly identified 8,000 Floridians as felons, who were not
felons, and thus ineligible to vote and that listed 2,300
felons as felons despite the fact that those 2,300 had had
their civil rights restored by State action.
Now what can we do to ensure that as States purge voter
lists that those purges don't--and in fact it was reported that
that 20 percent error rate was known in advance and somebody in
Florida--I'm not going to ask you who, I have no idea whether
you know it--but that someone in Florida determined that was
acceptable, that a 20 percent error list, meaning one out of
every five people on that list would be improperly denied to
vote. That was acceptable to deny the vote to people who should
have been denied to vote who were on the list.
What can we do to make sure that that voter purge lists are
accurate and are not used either deliberately or not
deliberately to deny the vote to people who should be able to
vote?
Mr. von Spakovsky. Well, first of all, I'm not an expert on
Florida because I wasn't an election official in Florida in
2000 and didn't have anything to do with it. But I will tell
you what I think about that. The mistake and assumption here
that's being made is that when the States, because of these new
HAVA databases which require them to do data matching, that
they automatically drop people when the information doesn't
match. That's not what they're doing. What--my understanding is
what the States do when they get a situation like this, and
this isn't any different than when a county election board, for
example, gets information that there may be a problem with a
particular registered voter, with accurate information. My
understanding is what they do when there is no match is they
then contact the voter by either calling the voter, the person
who is registering or by sending them a letter----
Mr. Nadler. Well, we've heard testimony that they should,
but clearly some do and some don't.
Mr. von Spakovsky. Okay. Well, what should happen when--
what should happen when a match comes back and shows there's a
problem with a voter registration application is that election
officials contact the voter and explain it to them, say look,
we've got this problem, can you provide an explanation?
Mr. Nadler. There should be--there should be a
communication with the voter?
Mr. von Spakovsky. Of course.
Mr. Nadler. Mr. Hebert, could you just briefly, since my
time has basically expired, comment on the question I asked and
on Mr. Spakovsky's answer.
Mr. Hebert. I agree with him the election officials should
contact the voters, but it's not happening in all instances and
not happening in all States. And what often happens is when the
communication is done, it's done with a letter that oftentimes
may arrive to the voter in a time period that's insufficient
for the voter to take whatever corrective action is necessary
in order to provide the information that allows the match to
take place. And so they are not registered within the time
period required----
Mr. Nadler. Well, let me just follow that up with one
further question. Should the Justice Department do something in
time for this election to make sure that that problem doesn't
occur and, if not, should Congress do something?
Mr. Hebert. Yes. Yes, the Justice Department should do
something, and here's what should be done. Any person who is
duly registered to vote but their name is not able to be
matched exactly on a State database, there ought to be--that
person ought to be listed on the registration rolls, and when
they go to vote they should have an asterisk next to their name
saying, by the way, we weren't able to match up your date and
here is the information. What can you tell us? Is it a
hyphenated name or is it a maiden name, and you fix it that
way. You don't deny people the right to vote. And Congress
could amend HAVA to made that clear.
Mr. Nadler. I thank you. My time has expired. I recognize
for 5 minutes the distinguished Ranking minority Member of the
Committee, the gentleman from Arizona, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman. I thank all of
you for being here. Mr. von Spakovsky, I wanted to just kind of
explore a couple of things with you related--you know I have--
I'm on the Armed Services Committee, and I have to tell you
that it does hit me pretty hard that those--if you're correct,
that those overseas are the ones that seem to have the least
success at voting. Oftentimes those are a lot of our fighting
men and women that lay their lives and their blood down for
this country, and people on this panel, most of us talk about
freedom, those individuals pay for it, some profoundly high
prices to themselves.
So I guess what I wanted to ask you is what is really
causing the problem? Who is at fault here? That's the first
question I ask. Why aren't--let's start with the military. Why
aren't they getting their ballots?
Mr. von Spakovsky. The problem frankly, Congressman, is
because the military voters are still voting the way they did
100 years ago. The way--the way--if you're--if you're a combat
soldier in Iraq what you have to do to get a soldier ballot,
you have to send a request for an absentee ballot back to your
home election official. If you're from a county in Texas, so
you have to send that to the county official in Texas
requesting an absentee ballot. They check it and then they
prepare an absentee ballot, and then they have to mail it back
to you in Iraq. When you get it in Iraq, you complete the
ballot, and then you have to mail it back. That takes a lot of
time, particularly because of the slowness of overseas mail and
because once you get into a combat zone the mail gets even
slower getting to--that's why a large number of these ballots,
even the ones that are completed are returned too late to count
in the election.
Several years ago Congress authorized an appropriation for
the Department of Defense to try to build an electronic voting
system based on the Internet which would electronically deliver
a ballot to a soldier, soldier would be able to complete it and
send it back. That system was canceled after a number of
computer scientists took a look at it and said that it was not
a secure enough system. A lot of people say the Internet simply
has too many security holes to ever use it that way.
I mean that's why I mentioned the Military Protection Act.
That's kind of a good interim step. That would provide so that
once the ballot gets to the overseas military bases, it would
provide international express service to get it back. That
would mean that as long as the soldiers got the ballot by the
Friday before the Tuesday election, it could get returned in
time to be counted.
The future for this I think is shown by a pilot project
that's going to go on with this election out of Okaloosa
County. Okaloosa County is a big county down in Florida. They
have a lot of military voters, and the county election
officials there are sending some of their election officials to
three overseas military bases where they have a lot of
soldiers. And they are going to open up an early voting site
using computers, where one of the military voters can come in,
they'll check to make sure they are on the voter registration
list, they'll pull up the ballot they are supposed to get and
they'll be able to vote right there. And setting up early
voting sites at U.S. military bases and perhaps U.S. embassies
in the future actually might be one way of greatly resolving
this issue.
Mr. Franks. If we were--I should say if you were to tell us
what you think we could do either in the Armed Services
Committee or the Judiciary Committee here to in the short term
to effect this in the most expeditious manner to help those who
defend this country have the best opportunity to vote in the
elections, what would that be?
Mr. von Spakovsky. The first would be to pass that bill
that's been introduced to provide for international express
pickup of the ballots overseas to bring them back to the U.S.
And I think the other thing would be to push the Federal Voting
Assistance Program office, that's the office at DOD that
administers the UOCAVA statute. Just set an automated computer
system that can be accessed by local election officials who
have--a particular county may have 500 voters that they know or
UOCAVA voters, who are supposed to get absentee ballots. They
ought to be able to send that list to 500 voters to the FVAP
office. FVAP office runs it through the DOD directory that
shows where these people are currently located. And they
correct any of those addresses that they receive, send them
back to the local election official, so the local election
officials get the ballots to the right location.
Mr. Franks. Mr. Chairman, it seems to me that the U.S.
military is one of the most effective logistical organizations
in the world except for perhaps Wal-Mart, and we should be able
to find out a way to help our soldiers out.
Thank you, I yield back.
Mr. Conyers. [Presiding.] Thank you, Mr. Franks.
Mr. Spakovsky, is there any other problem besides the
military?
Mr. von Spakovsky. Well, I mentioned another problem. I
think there are a number of problems.
Mr. Conyers. Just state one other.
Mr. von Spakovsky. It is hard to cover them all in 5
minutes.
Mr. Conyers. Well, you don't need 5 minutes to just name
one other----
Mr. von Spakovsky. I tell you another one I think is a
problem. That is the Help America Vote Act required States--it
required the States to set up rules for how provisional ballots
would be reviewed--and local and States. And I don't think that
all the States are property set out----
Mr. Conyers. Maybe it's your mike. Let's switch mikes here.
So, over here there is a signal. They switched mikes.
Voice. Someone will be here momentarily. In the meantime
the witness can continue.
Mr. von Spakovsky. This one's on. I'm sorry, Mr. Chairman.
I kind of lost track of where we were. One of the problems is
making sure all the States have their provisional ballot rules
laid out so that everyone understands what the rules are,
particularly both parties understand that, so that we don't
have the situation that I think Professor Tokaji talked about
earlier, which is I think it would be very unfortunate if we
have a very close election in November, if there were fights in
every county or State where there were large numbers of
provisional ballots similar to the kind of fights that
unfortunately went on in Florida over the punch card ballots.
Mr. Conyers. Now can you summarize what you just told me is
the second problem that you bring to our attention?
Mr. von Spakovsky. The second problem was that there are
cases from various parts in the country that indicate that
individuals who are not U.S. citizens, both legal and illegal,
are registering to vote and have voted in some elections, and
that is something also that I think needs to be fixed.
Mr. Conyers. Uh-huh. Have you found a major problem with
absentee voting?
Mr. von Spakovsky. There are cases from around the country.
Mr. Conyers. I know that, but is it a major problem in your
mind?
Mr. von Spakovsky. Well, there have been a number of
elections such as----
Mr. Conyers. Is it major in your mind?
Mr. von Spakovsky. I'm sorry, what?
Mr. Conyers. Is it a major problem, absentee voting and
fraud----
Mr. von Spakovsky. I think absentee voting is very
vulnerable to voter fraud, and there have been many cases from
around the country of elections being overturned such as Miami
in 1997, Georgia.
Mr. Conyers. Okay, but I just noticed you didn't mention
it.
Mr. von Spakovsky. I only had 5 minutes, Mr. Chairman. It's
hard to mention all the various problems that there are in 5
minutes.
Mr. Conyers. Okay, I see.
Professor, I'm indebted to you for trying to help us
develop a framework around which we can encourage the
Department of Justice Voting Section to get on the stick now
rather than do this business after problems pop up, and things
that are quite clearly predictable occur and then they rush out
to deal with it, but the damage of course has been done. The
day of and the day after the election isn't going to help us
much in trying to clear it up. And so you've been very, very
important in helping us develop a process and some
recommendations to bring to Attorney General Mukasey as to how
the Voting Rights Section ought to be operating.
You pointed out that a lot of the people are new. And Mr.
Hebert has pointed out a lot of the old people that we probably
were kind of happy have left, but the new people don't have
much experience either. And so this discussion is very
important to me because I'm going to Grand Rapids on Sunday
afternoon to speak with the Secretaries of States. And I want
to be able to give them the benefit of the discussion that's
gone on in this hearing. To me it's very important. And both
your suggestions will be incorporated in what I'm going to tell
them about. As to what--how we can work with them?
And I was wondering if you, Mr. Hebert, have any
recommendations as to things that we might want to put in our
comments because we've got a lot of problems out there in the
States because of a lot of voting practices get off to the
wrong foot by the things, as we found out in Ohio, the
Secretary of State does.
Ms. Daniels. Thank you, Congressman Conyers. I think we
should operate from the perspective that if we knew then,
meaning if we knew in 2000 what we know now, we would do things
differently. I would hope that we would. And certainly since
the Department of Justice knows more now than it did in 2000,
there are certainly ways that can alleviate many of the
problems that occur such as the ill-advised vote purge in
Florida or the voter registration problems as well as the
faulty voting machines. And I've outlined in my written
testimony a number of things that can be done. And I also would
suggest, strongly suggest, that this body recommend to the
Civil Rights Division Voting Section that they would begin a
proactive approach, such as things they have done in the past.
For example, in 2004, in July and in September, they sent
letters to all of the Secretaries of State saying that,
discussing UOCAVA compliance, and that that is something that
can be done now and discussing and sending a letter to the
Secretary of State saying here are the issues we have seen in
2004 and in 2006, issues with voter registration, issues with
poll watchers, overzealous poll watchers which would cause--
certainly I would think I would argue were a primary cause for
a number of the problems in the poling place in 2004, having
overzealous poll watchers challenge eligible voters and then
having poll workers who did not know how to respond, and
requiring people to cast provisional ballots that may or may
not have been counted. So there are certainly a number of
recommendations that could occur.
And certainly again I would--there are things that DOJ can
do and things that they have done in the past that they should
continue to do, but they must be proactive and must act now.
Can I add one more thing if I may? During my time at the
Department of Justice one of the things that diminished
incredibly was outreach to civil rights organizations, and I
think that that has been the cause of the lack of--you talk
about the lack of voter confidence, there certainly is a lack
of confidence amongst civil rights organizations in the
Department of Justice and particularly the Civil Rights
Division, and ensuring and knowing that it can be trusted to
enforce, assuming that the mission of the Civil Rights Division
remains to enforce those civil rights laws. I think there are a
number of organizations that question that. And the way to
restore confidence is for the Voting Section in particular to
reach out to organizations like the NAACP and others.
Mr. Conyers. Thanks so much. Mr. von Spakovsky, do you have
any recommendations along these lines?
Mr. von Spakovsky. Well, the idea that the division did not
meet with civil rights organizations I believe is incorrect. I
worked for all three of the Assistant Attorney Generals who
were head of the division, Ralph Boyd, Alex Acosta and Juan
Kim. All of them met extensively with civil rights
organizations.
I recall that in--I don't remember the exact date, I think
the summer of '04 Mr. Acosta, who was my boss at the time, had
a very large meeting with a large group of civil rights
organizations to explain to them the procedures that the
Department was going to put in place for the upcoming election
and how they were going to make decisions on where to send
observers and seeking, you know, comments, suggestions from
those organizations. And I agree with Ms. Daniels that they
should do that. And I think--I think they will.
Mr. Conyers. Thank you very much. Which three Attorney
Generals or Administrations did you work with?
Mr. von Spakovsky. Well, there have been three that were
confirmed by the Senate to run the Civil Rights Division, Ralph
Boyd, Alex Acosta, and Juan Kim, and I worked with all three of
them before.
Mr. Conyers. Which Administrations were those?
Mr. von Spakovsky. I'm talking about in this
Administration.
Mr. Conyers. Oh, okay. All right, that's wonderful. By the
way, I've discussed this with Trent Franks and he's agreed that
we--and I'm going to discuss it with the rest of our Committee
Members on both sides so that we might ask you folks to come in
and talk with us about how we make our recommendations to the
Department of Justice so that we don't come up at the last
minute, you know, just issuing statements and guidelines that
may be too late to be implemented or be of any usefulness. So I
appreciate your cooperation.
Mr. Hebert.
Mr. Hebert. Real quickly, because I know you're rushed for
time here and it's the end of the day. I would agree that it's
important obviously for the Justice Department to meet with
civil rights organizations and voting rights groups and others.
But you have to do more than just meet. You have to kind of
agree on what the procedures are going to be at the Department
of Justice when you encounter a real problem, say like vote
caging, as the Chairman notes all too well. So that would be a
recommendation there. And you have three former DOJ officials
here on your panel now, and I would be happy to offer whatever
advice I have.
I would say if you're meeting with Secretaries of State I
would say that HAVA should not be--the mismatch problem I
mentioned earlier, that HAVA should not be an excuse to drop
people off the rolls, that in fact like a suspense list now if
you don't vote in a couple of elections in a row you don't
struck necessarily off of the rolls. You get put on a suspense
list, and then when you go to vote they say, hey, you haven't
voted in the last election or two, so we're going to move you
from that there. They could create such a list under HAVA for
people who have the mismatch problem.
I would say also that when the Secretaries of State see the
Department of Justice sending monitors into their State in a
place that it doesn't seem right to them, that they ought to
question it, because what we saw in 2004 was oftentimes the
dispatching of Federal official into places for political
reasons, not for civil rights reasons. I think they should be
warned about no discriminatory enforcement of voter ID laws, as
I mentioned earlier.
And then lastly this may be one of the few points Mr. von
Spakovsky and I agree, I think overseas voters, particularly
those in the military serving the country, that Secretaries of
State ought to be reminded to get the ballots over to people in
time so that they can make the cross international trip in time
to be counted.
I remember in my days in DOJ I sued George Wallace when he
was Governor of Alabama for failure to enforce the Uniformed
Overseas Citizens Voting Rights Act because Alabama sent
ballots too late to the military men and women overseas.
Mr. Conyers. Thank you. Keith Ellison.
Mr. Ellison. Thank you, Mr. Chairman. You know, I read your
article and you say here that it is indisputable that
noncitizens are voting. What proof do you have that noncitizens
are voting?
Mr. von Spakovsky. Well, Mr. Ellison, it is hard to
summarize an entire article in a couple of minutes, but I have
extensive citations in that article to GAO reports to----
Mr. Ellison. You know I actually read----
Mr. von Spakovsky [continuing]. Testimony----
Mr. Ellison. Excuse me, sir. I have got 5 minutes and I got
your answer.
But you know I read your article and I saw some cites and
none of it to me was evidence that noncitizens are voting. In
fact, in your opening sentence you cite that there are 3
percent of the 30,000 individuals called for jury duty over a
2-year period were noncitizens and extrapolate from there that
we have all these noncitizens voting. It is just sort of
argument by analogy and not any real proof.
Mr. Hebert, let me ask you this what do you think about
voter ID laws?
Mr. Hebert. Well, I filed a brief in the Indiana voter ID
case saying that.
Mr. Ellison. Me too.
Mr. Hebert. I know you did. You and I were on the same
side. I think that voter ID laws are often offered up as
necessary to combat voter fraud, but I think the case for voter
fraud is largely overblown, that to the extent there may be
voter fraud it is most often committed through the absentee
ballot process and not through in person voting, so therefore
voter ID laws really don't get to the real root of the problem.
Mr. Ellison. As you know, Mr. Hebert, that Indiana law
didn't even address absentee ballots, did it?
Mr. Hebert. It did not, that's correct.
Mr. Ellison. Now, here's something that happened on May 7th
in the Indiana election. A dozen nuns and other unknown number
of students were turned away from the polls Tuesday in the
first use of Indiana's stringent voter ID law since it was
upheld last week by the United States Supreme Court.
Mr. von Spakovsky, do you want to stop nuns from voting?
Mr. von Spakovsky. You----
Mr. Ellison. Why don't you want nuns to vote, Mr. von
Spakovsky?
Mr. von Spakovsky. Congressman Ellison.
Mr. Ellison. I'm just curious to know.
Mr. von Spakovsky. Those individuals knew they had to get
an ID. They could have easily done so. They could have voted by
absentee ballot. Nursing homes, I think under the law, are able
to----
Mr. Ellison. Mr. von Spakovsky, what does easily mean for a
98-year old nun?
Mr. von Spakovsky. Are able to get----
Mr. Ellison. Mr. von Spakovsky, are you aware that a 98-
year old nun was turned away from the polls by a woman----
Mr. von Spakovsky. They all had passports which means
they--expired passports, which meant they could have easily
gotten an ID.
Mr. Ellison. Mr. von Spakovsky, do you know that a 98-year
old nun was turned away from the polls by a Sister who's in her
Order and who knew her, but had to turn her away because she
didn't have the government issued ID? That's okay with you?
Mr. von Spakovsky. Yes. And the woman who was----
Mr. Ellison. Is that all right with you?
Mr. von Spakovsky. The nun refused to give them provisional
ballots, which was a violation of Federal law. She was
obligated as a local election official to provide them with
provisional ballots.
Mr. Ellison. Mr. von Spakovsky, how old was she?
Mr. von Spakovsky [continuing]. To do it because she didn't
want to have to take them down to the local election office
where they could have by affidavit sworn to who they were and
their vote would have counted.
Mr. Ellison. So a 98-year old nun is turned away from the
polls and your answer is she should have had her passport?
Mr. von Spakovsky. The U.S. Supreme Court said that that
law was fine and the plaintiffs in that case after 2 years----
Mr. Ellison. The United States--no, Mr. von Spakovsky.
Mr. von Spakovsky [continuing]. Of litigation they weren't
able to provide a single individual who did not have an ID or
could not easily get an ID.
Mr. Ellison. They can't take us down at the same time. The
time is mine, I reclaim it now.
That decision was made before those dozen nuns were turned
away from the polls, not after.
Mr. von Spakovsky. Would you like to hear the turnout from
the May 6th election?
Mr. Ellison. When I have a question I'll pose it to you.
Mr. Hebert.
Mr. von Spakovsky. You don't like the answer that I want to
give.
Mr. Ellison. I'm going to ask you to stop cutting into my
time. Thank you.
Mr. von Spakovsky. Well, you're not allowing me to answer
the question.
Mr. Ellison. I don't have a question to you, sir.
Mr. von Spakovsky. No, you asked me a question and kept
interrupting me.
Mr. Ellison. Mr. Chairman, I ask the witness be instructed
to cease, because I'm not asking him a question.
Mr. Hebert, is turning a 98-year old nun away from the
polls who was perfectly eligible to vote otherwise what America
should be doing in terms of encouraging voters to participate
in elections?
Mr. Hebert. No, we should not be making it more difficult
for people to vote. In the case of the nuns they had been
voting for many years, they were all duly registered to vote.
Yes, I suppose they could have been offered a provisional
ballot, but then they would have been required to go a second
step and go down later to the voting office and produce actual
identification.
I think we've reached a point in this country where we
should really, really stop and think about if we're going to
try to spread democracy in the world, we should try to correct
the imperfections of our own democracy here at home by making
it easier for people to vote, not making them jump through
additional hurdles.
Mr. Ellison. Ms. Hebert, does this voter ID that blocked 98
year old nuns from voting--Ms. Daniels, excuse me--is that what
you believe our voting laws should be doing?
Ms. Daniels. No, sir, and I think on the first day of class
I always ask my election law students what type of democracy
would they like to create. If they want to create a democracy
where persons are restricted or dissuaded from voting you can
do that by creating stricter voting ID laws, by having
provisional ballots and making it more difficult for people to
actually vote. Or if you want a system where all eligible
citizens are allowed to vote without all of the inhibitors that
we're currently creating. I think that's the system that we
want to create and I think we're certainly moving in a
direction, and I agree with Mr. Hebert. I think we're certainly
moving in a direction where we're making it more and more
difficult for people to participate in our democracy.
Mr. Ellison. Mr. von Spakovsky, I have another question for
you. Did you ever experience frustration with U.S. attorneys
because of their inability or unwillingness to go after voting
fraud cases?
Mr. von Spakovsky. I had nothing to do with U.S. attorneys.
The U.S. attorneys are part of the Criminal Division of the
Department of Justice. I worked in the Civil Rights Division,
which has nothing to do with the U.S. attorneys.
Mr. Ellison. Right. I asked you if you ever experienced
frustrations with U.S. attorneys who refused to prosecute what
you believed were voting fraud cases? You can experience
frustrations without being a U.S. attorney or without being in
charge of U.S. attorneys.
Mr. von Spakovsky. Congressman, I wasn't in the Criminal
Division. So I wouldn't have been advised or been given
information about any voter fraud investigation----
Mr. Ellison. So do you----
Mr. von Spakovsky [continuing]. Conducted by the----
Mr. Ellison. So did you ever contact any U.S. attorney or
anyone who supervised U.S. attorneys regarding voter fraud
cases?
Mr. von Spakovsky. Um----
Mr. Ellison. That's a yes or no. If it's no, it's no, sir.
Mr. von Spakovsky. No. The answer to that is that
occasionally, and both of my compatriots here at the table know
this, U.S. Attorneys would get calls directed to them about a
voting issue and they would take a look at it. And if it was
not a criminal matter, if it was not a criminal election matter
but if it was a civil rights matter, they would direct the call
to the Civil Rights Division for us to handle. And so yes----
Mr. Ellison. Mr. von Spakovsky----
Mr. von Spakovsky. I may have occasionally had
conversations with assistant U.S. attorneys who were calling
our office to tell us about some kind of complaint that they
had received which was not within their purview or something we
should look at.
Mr. Ellison. So that's a yes, thank you.
Now were you part of a discussion that U.S. Attorney
Heffelfinger of Minnesota should be fired because he expressed
deep concern about the effect that a directive that could
have--that could have discouraged Indians from voting in
Minnesota?
Mr. von Spakovsky. I don't recall being part of any such
conversation.
Mr. Ellison. Did you ever discuss Attorney General--I mean
U.S. Attorney Heffelfinger in voting fraud cases in any sense?
Mr. von Spakovsky. No.
Mr. Ellison. You never mentioned his name to anybody?
Mr. von Spakovsky. No, I didn't know the man.
Mr. Ellison. That's not what I asked you.
Mr. von Spakovsky. I never discussed--I don't know him. I
didn't know him and I've never discussed him with anyone at the
Department of Justice or elsewhere.
Mr. Ellison. Okay, were you part of the discussions
relating to the failure of Biscupic in Wisconsin, on John McKay
in Washington, or John Graves in Missouri to bring election-
related prosecutions?
Mr. von Spakovsky. No, sir, because I was not in the
division that the U.S. attorneys were in.
Mr. Ellison. Did you ever discuss these issues or relate
your views about them in terms of these prosecutions?
Mr. von Spakovsky. No.
Mr. Ellison. And what involvement did you have in the
voting prosecution brought by Brad Salzman in Missouri?
Mr. von Spakovsky. I had not. I was at the Federal Election
Commission. Why would I have any involvement with something the
Department of Justice was doing when I wasn't even working
there?
Mr. Ellison. Well, partly because you have an obsessive
fear that people might vote who you don't want to and so you
contact the U.S. Attorney's Office to try to stop folks from
voting. So I'm----
Mr. von Spakovsky. That's a fantasy. That's a fantasy that
you're making up, Congressman. I have nothing to do with
Federal prosecutions going on by the Department of Justice when
I was at the Federal Election Commission. That's ridiculous.
Mr. Ellison. Well, I'm asking you, you answered. You're on
record now and we'll see whether it matches up with the facts.
Mr. von Spakovsky. Are you accusing me of lying,
Congressman?
Mr. Ellison. I'm asking you questions, sir. Haven't you
been here?
Mr. von Spakovsky. And I'm telling you that that's a
ridiculous question and that I would have nothing to do with
Federal prosecutions when I wasn't working at the Department of
Justice?
Mr. Ellison. And you put yourself on record and that's fine
and we'll check it out.
Mr. von Spakovsky. Well, you go ahead and do that.
Mr. Ellison. I will, I plan on it.
I yield back.
Mr. Conyers. Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman.
Ms. Daniels, you use a term ``political operatives''
manipulating the voting process to disenfranchise eligible
citizens. What did you mean by that?
Ms. Daniels. What did I mean by political operatives?
Mr. Scott. Manipulating the voting process.
Ms. Daniels. One example would be the use of poll watchers.
States can determine who can witness the actual casting of
ballots. They can tell you who--State laws determine who can
watch the actual polling process. In 2004 there was an
onslaught of Republican and Democrat poll watchers within the
polls, and in some instances there were more poll watchers than
poll workers or even voters. There were certainly instances,
reported instances of where Republican poll watchers were very
aggressive and were using their status of being inside the
polls to challenge persons on a racial basis as well as whether
or not they spoke English well, challenging language minorities
as well as some instances, African Americans.
I think that's an example of political operatives, meaning
people who were placed there for a political purpose, instead
of being there to ensure that the process was handled fairly,
were there strictly to challenge persons based on race and
language.
Another example would be vote caging, which is a process
that I'm sure you all are familiar with, where persons, poll
watchers, may have a list of voters that they are there to
challenge because they may have sent them a mailing that was
returned undeliverable. And they specifically target areas. In
this instance in 2004 Republicans were specifically targeting
areas, African American areas; when those persons came to vote
those persons were challenged. And that happened in Ohio and in
Milwaukee, Wisconsin. In 2004, Republicans in Wisconsin
attempted to challenge the registration of 5,600 voters in
Milwaukee but were turned down by a unanimous decision by the
city's bipartisan election board. In Ohio there was a
Republican scheme to challenge 35,000 voters, and that was also
turned down, that was also stopped.
So there are certainly instances where political operatives
are trying to manipulate the process to their advantage.
Mr. Scott. Thank you.
Mr. Hebert, what's wrong with requiring all potential
voters to have their citizenship verified?
Mr. Hebert. Well, the biggest problem is that right now
most of the voter registration applications and the DMV
applications provide that information already. You know, asking
that question. And there's a provision for that----
Mr. Scott. Well----
Mr. Hebert [continuing]. In most of the applications.
Mr. Scott. Having to verify it and prove your citizenship
for some people becomes problematic. We had somebody in my
office who said they were adopted and couldn't get a birth
certificate.
Mr. Hebert. No, I mean proof of citizenship requires
documentation. Oftentimes the documentation requires money. If
you can prove who you are and you're a registered voter, you
shouldn't have to then come back again and prove that yes, I'm
a registered voter and I'm also a citizen. If a noncitizen
registers to vote and a noncitizen then votes, as Mr. von
Spakovsky has pointed out, there are penalties for that. It is
not that widespread frankly. And most of the time people who
register to vote who are noncitizens, it's usually as a result
of filling out a DMV application and the DMV application
doubles as a voter registration application, it automatically
goes in, and they become registered as a noncitizen and they
don't even know it.
It is kind of like Mr. Ellison's question a moment ago
about what proof is there that noncitizens are voting, and Mr.
von Spakovsky quoted a GAO report about jury rolls. Mr. Scott,
you and I are both from Virginia, we know how jury rolls are
constructed in a lot of States. They are not just the voter
registration rolls. They sometimes use DMV records and so on.
You don't have to be a citizen to get a DMV----
Mr. Scott. Well, in fact we specifically stopped
restricting our list to registered voters and went to driver's
licenses and things like that because the voter registration
lists were too restrictive. Some people were not registered. So
they wouldn't be called for jury duty for example.
Mr. Hebert. That's exactly right.
Ms. Daniels. Mr. Scott, may I add on the proof of
citizenship issue that I think we'll see problems with that
when the REAL ID is implemented, which was supposed to take
effect in May of this year but was extended to next year. I
think we'll really see problems, because REAL ID requires proof
of citizenship as well.
Mr. Scott. Can the panelists comment on Secretary
Blackwell's lack of embarrassment at the long lines, suggesting
that the long lines were not a source of embarrassment, but
actually a good thing.
Mr. Hebert. Well, let me start out by saying that the
Department of Justice did a study actually of some of the Ohio
problems in Franklin County and found that the long lines in
Franklin County, and I think I cited to this letter in my
testimony, in my written testimony, actually said that they
were as a result of the failure to provide an adequate numbers
of machines at the polling locations. And in fact one of the
documents Mr. Blackwell submitted with his testimony is a news
article where the Democratic chairperson of the Franklin County
Board of Elections said ``we messed up.'' There were long lines
at the polls and as a result of that that's a consequence of us
not having enough voting machines.
I'm going to check because I know I can supplement my
testimony later, but I believe that there was a request made
from Franklin County for more voting machines to Mr. Blackwell
in advance of the election and he turned it down. I'm going to
try to verify, because that's my recollection of what happened
in 2004. I don't think long lines for voters are ever a
positive sign, it is great to have voter turn out.
Mr. Scott. You never answered my question as to how long a
wait would constitute a denial of rights.
Mr. Hebert. Too long. You know when you go to vote----
Mr. Scott. There were suggestions that people were waiting
several hours.
Mr. Hebert. Three to 4 hours is what happened in Ohio. In
Kenyon College students had to stay until 4 a.m. In order to
vote. They were already in line, they brought them all inside
and they were still able to vote but they had to get more
machines brought over. Kenyon College is in Ohio. So I think
that election officials with proper planning and based on
turnout and voter registration numbers.
Mr. Watt made the great point with Mr. Blackwell when he
said you look back on data, that's helpful, but if you see
suddenly a huge surge in voter registration applications this
year in African American precincts you don't have to go back
and say hey, how many people voted in 2004. You know how many
people are registering now, you ought to get some machines in
there and make sure there are adequate numbers.
Ms. Daniels. It's not limited to Ohio. The same thing
happened in Prince George's County, Maryland as well as
Atlanta, Georgia. And I think in answer to Mr. Watt's question
to Mr. Blackwell was, particularly in HAVA, using the power of
the purse to ensure that there are enough voting machines for
the number of registered voters.
Mr. von Spakovsky. I don't necessarily disagree with that.
But I think what we have to keep in mind that we had a record
turnout in the '04 election. The turnout in Ohio was I think
one of the highest in the country. And it's very clear that the
election officials there frankly got flat footed when they were
doing the allocations based on voter registration rates and
prior turnout. It's more of an art than a science when a local
election official is trying to figure out how many voting
machines to put in each thing. On the other hand, we should
keep in mind that, as I understand it, they had had the same
number of voting machines for a number of years, and from like
1996 through the 2002 election they hadn't had any problems.
Mr. von Spakovsky. Now, I agree. I don't think people
should have to wait in line for a long time, and I think
election officials have to do a better job of looking not just
at past turnout, but, yeah, look at the voter registration rate
as it is progressing through the year when they are trying to
figure out how many machines to put out.
Again, that brings up one other issue, because I used to be
a county election official. We were dependent, unfortunately,
on the county commission providing us with the kind of budget
we needed to buy election equipment, and one of the problems a
lot of counties have is that they don't get enough money from
their county governments and from State legislatures to buy all
the kind of equipment that they need.
Mr. Scott. Does it concern you that the flat-footedness
tended to have a partisan aspect to it?
Mr. von Spakovsky. I have to agree with Secretary Blackwell
about the issue that the decisions on how many machines to put
in into all those counties was made on a bipartisan basis. For
example, Gary Hebert mentions the problem at the college
precincts in one of the counties. That particular precinct, if
I recall correctly, had three times as many individuals come in
to vote as they had in the prior election. And the local county
quickly got paper ballots to that precinct so the people would
not have to wait in line to use the voting machines.
As I understand it, both the chairman of the county
Republican Party and the chairman of the county Democratic
party both showed up at the precinct at 9 o'clock, along with
local election officials, to assure the people that were
waiting in line that they could vote on the paper ballots, that
they would be counted just the same as the voting machines. But
apparently some people who were there, I think some of them
were like some professors at the local college, unfortunately
told everyone in line that, no, they shouldn't vote the paper
ballots, they wouldn't be counted. Basically gave them bad
information.
That situation would have resolved itself. That was a good
example of bipartisanship. Both party Chairs went down there to
try to get the situation resolved and tell people, look, they
could vote these paper ballots, they wouldn't have to wait in
line, and the situation would fix itself, and unfortunately it
didn't. It is regrettable that they had to stand in line for
that long to vote. I certainly wouldn't want to do that.
Mr. Hebert. Mr. Scott, let me just say that I don't think I
am going to sit here and testify under oath that I would blame
the Kenyon College students because they had to stand in line
until 4 in the morning and ultimately get to vote. I think one
of the positions was that they felt they were entitled to vote
like everybody else on a machine that would record their vote,
and my understanding was that a number of them said, ``I don't
want to vote a paper ballot, I want to vote the way everybody
else votes,'' and the county had an obligation to provide those
machines.
I would say--and, Mr. Chairman, you will appreciate this
perhaps more than anybody on the panel, given your long tenure
in the Congress and having seen so many elections come and go.
It is interesting. You asked about a partisan skew to this
problem about voting machines. There wasn't a lot of big
allegations coming out of Ohio that it was White folks who were
denied the right to vote. It was Black people in Black
precincts that didn't have enough machines. Why do we always
come back to this and scratch our heads and say, how can this
always seem to happen to our people?
I don't understand this. I still don't.
Mr. Conyers. Coincidence.
Mel Watt.
Mr. Watt. Thank you, Mr. Chairman.
Mr. Hebert, Mr. von Spakovsky, is there some reason we
couldn't have polling places on military bases or in embassies
in other countries? Is there some legal reason?
Mr. von Spakovsky. Yeah, I think there is a prohibition
about that. But I think it would be worthwhile--I think what
needs to happen is I think the National Association of
Secretaries of State and the National Association of State
Election Directors, which are the two respective national
groups that represent both the secretaries and State election
directors, I mean, they ought to get together and see if there
isn't a way that they could come up with a system that----
Mr. Watt. Is there a legal impediment to it?
Mr. von Spakovsky. There is a Federal law that would have
to be changed to open up early voting sites run by the States.
Mr. Watt. Okay.
Mr. Hebert. I don't know the answer to that question,
Congressman Watt. I will look into it.
Mr. Watt. We did allow a Liberian--there were polling
places in the United States for a number of foreign countries'
elections, aren't there?
Mr. Hebert. I believe so.
Mr. Watt. We believe in democracy for other people, don't
necessarily believe it in for our own people. I was just
wondering. That wasn't a trick question. I actually agree. That
is the one shining example of the things that you all have
agreed on, and I definitely agree that we ought to be providing
opportunities for U.S. citizens to vote, wherever they are, and
the technology now, it seems to me, is available to do that.
Actually, I think technology is available for somebody who
lives in North Carolina who happens to be in California on
election day to vote, too, if we were really committed to the
proposition that people ought to be allowed to vote, rather
than committed to the proposition that we got to make it more
difficult.
I never have quite understood the registration requirement.
Why do I need to be registered if I am a citizen? I go in and
vote. Anyway, get me on my soapbox.
Let me turn back to the question that I was so disappointed
with Mr. Blackwell about his answer, I guess, to my real
concern about the 2008 election, which is that massive numbers
of people are going to be standing in line, waiting for hours
to vote, disproportionately in various places that we would
really like to be incentivizing them to vote for a change, on
college campuses, in minority communities. His answer to that
would, I guess, be to chuckle and say that would be a good
thing. He didn't say it in direct response to the question, but
turnout would be high; therefore, that would be a good thing.
How can we avoid what seems to me to be so apparent is
going to happen in this election? What can we do at the Federal
level to stop that? I see it, and I don't know how to solve it.
Tell me what we can do as a practical matter.
Mr. Hebert. Well, one thing that could be done is the
Justice Department interacts with secretaries of state all the
time, and Members of Congress sometimes do as well. The one
thing about the long lines, if there is a large voter turnout,
which we expect based on what we have seen so far, the key to
efficiently moving voters through the flow is to ensure that
there are adequate numbers of poll officials and adequate
numbers of voting machines or ballots at each facility. Those
determinations can be made not just based on how many voters
voted in the past. If you look at 2004, that doesn't really
tell you much, or 2006, about what is going to happen now. The
key is to look at the most recent data that you can that sheds
light.
Mr. Watt. I am with you there. But even if we anticipated
that, how could we make that happen at the State level or at
the precinct level? What can we do?
Mr. Hebert. It has got to be done by secretaries of state
down through to the local election officials. Mr. Blackwell
issued tons of memos just prior to the election, changing all
kind of procedures. It is why he ended up being sued 40 times
in the preelection period.
But the fact is that secretaries of state can take this
action now, and the Department of Justice can make them take
that action now because it is going to have often a racially
disparate effect if they don't.
Mr. Watt. So in a State that is covered by the Voting
Rights Act, preclearance required, is projected ratio of voting
machines to voters, would that be reviewable?
Mr. Hebert. Well, if they change the procedures, but----
Mr. Watt. If they change the numbers, would that be?
Mr. Hebert. I don't believe it would be necessarily.
Mr. Watt. Mr. von Spakovsky, first of all, do you share the
belief, this notion that I have, that this is going to be a
massive problem in the November election? If you don't, we are
not going to ever solve the problem, and I am not even going to
comment on how you solve it if you don't believe it is going to
be a problem. I will just go on to the next witness.
Mr. von Spakovsky. I probably agree with you.
Mr. Watt. How can we solve it?
Mr. von Spakovsky. We had record turnout in the 2004
election, and I think we may have another record turnout here.
Before the 2000 election----
Mr. Watt. Tell me how we can solve it.
Mr. von Spakovsky. There are now two kinds--basically, the
whole country has now moved to two kinds of voting machines
from the four or five we used. Many States and counties now use
Optiscan ballots. Those are paper ballots.
Mr. Watt. Are you getting ready to tell me how we can solve
this problem?
Mr. von Spakovsky. Yes. The States that have switched to
Optiscan ballots, they aren't really going to have a problem
with getting ready for a high turnout election because it is
frankly very easy to print a larger number of paper ballots and
get them to the precincts where they are needed, because the
way the Optiscan system works, as you know, is the voter gets a
paper ballot, he or she fills it out, and then before they
leave the precinct, they run it through a computer scanner,
which counts the votes, and it drops into a ballot box. There
is only one or two computer scanners for each precinct, but you
can increase----
Mr. Watt. You are saying----
Mr. von Spakovsky. I am saying in precincts that use the
paper Optiscan ballots, they will be able to print the larger
number of ballots they need for a high-turnout election. The
problem is going to be in--and I think it is probably about a
third of the country that switched over entirely to electronic
voting machines, because each electronic voting machine, it is
basically a computer, and they are a lot more expensive than
getting paper ballots printed, and those jurisdictions that
have a certain number of electronic voting machines, I think,
will have a tough time between now and the election if they
decide they need more of those electronic voting machines----
Mr. Watt. Don't keep describing the problem to me. I keep
asking you what the solution is.
Mr. von Spakovsky. I think there is a solution for the
States that have switched to Optiscan paper ballots. I think
the States that have switched to electronic voting machines are
going to have a problem because I don't think they are going to
have the money to buy the additional machines they need, and,
frankly, I am not sure that the companies that produce it have
the manufacturing ability to produce enough machines if they
decide they need a lot more.
Mr. Watt. So we are just going to have a chaotic November
election.
Mr. Scott. Would the gentleman yield?
Mr. Watt. I would be happy to yield, but I want Ms. Daniels
to tell me how to solve this problem, or somebody.
Ms. Daniels. Mr. Watt, you can use section 5 to hopefully
alleviate the problem in covered jurisdictions. For example, if
they are making a submission where they are reducing the number
of polling places, it is reviewable. In 2006, there was
actually an objection to the Montgomery Community College
submission in Houston, Texas, where they were reducing the
number of polling sites.
Mr. Watt. Where you are trying to reduce. Let us assume--I
mean, you know, even Mr. Blackwell didn't suggest we reduce the
number of polling sites. He just said base it on what we did in
2004. Nobody is suggesting that. I am trying to look forward.
How can we solve this, knowing that--I mean, I can just see it.
Mr. Scott was going to tell me, maybe. Somebody.
Mr. Scott. I was going to ask whether the backup was at the
voting or at the desk where you are trying to get processed. I
mean, you were saying that the voting machine process was where
the backup might occur. Seems to me that at the desk where you
are trying to check in may be the bottleneck.
Mr. Watt. That is true. Most of the people I saw were
standing outside the polling place. They never got to the
voting machine to be the holdup. The holdup was getting past
the people who were processing them to get them to the voting
machine. So maybe that is part of the solution.
Ms. Daniels. Poll worker training; particularly poll worker
training and the need for more training.
Mr. Watt. More people and more training, yes.
Ms. Daniels. I would agree.
Mr. Hebert. I would add one other thing. For places that
have voting machines or electronic machines that break down,
you have to have sufficient number of paper ballots as a backup
in case there is a real problem, power failure or whatever.
Another way to alleviate the problem of overcrowding at the
polls is to, when people come in, allow them to go and cast a
paper ballot just to get them away from the table that Mr.
Scott is mentioning, the bottleneck.
Mr. Watt. Mr. Chairman, my time is up, but I hope these
three wonderful witnesses, all of whom, I guess--I didn't ask
Mr. Hebert or Ms. Daniels whether they envision this same
problem. I did ask the one that I thought may not. He envisions
it, too. I hope you all will spend some time in the next couple
of weeks before we complete this record trying to tell us what
we can do here, what the Justice Department can do there, what
we can require States' attorneys general, secretary of state,
local precinct people, because I can just see this coming.
If we don't anticipate it and deal with it before election
day, you are just going to have massive chaos out there, and
people are going to go away disenchanted, unhappy, feeling like
democracy has not worked again for the third straight
Presidential election in this country, and that would be such a
shame for this country. I mean, this is not partisan, this is
democratic. So I hope you all will come up with some written
suggestions to us about practical things that we--just make me
a list of things that we should be asking the Attorney General
to ask whoever down the line to do, or what we should be doing,
if we need to change the laws. Whatever we need to do, we need
to do it quick because we are going to have chaos in November,
in my opinion, once again.
I yield back. I thank the Chairman for his generosity.
Mr. Hebert. I did think of one further thing. It doesn't
necessarily relate to overcrowding, but it relates to a
question that Mr. Franks posed earlier, and that is currently
the Secretary of the Veterans Affairs Department has refused to
allow voter registration to occur at VA facilities by
nonpartisan groups. Now, these are people ultimately who
perhaps almost paid the ultimate sacrifice, and they are
recovering, and maybe they are not registered to vote.
Shouldn't we go out of our way to do everything possible?
I would ask you to write to the Secretary of Veterans
Affairs and demand that these people be allowed--be given the
opportunity to register, just register to vote, and hopefully
afforded the right to cast their ballot. So, that would be one
final.
Mr. Conyers. Excellent recommendation.
I want to thank Professor Daniels, Mr. von Spakovsky, Mr.
Hebert, and particularly my colleagues Trent Franks and Bobby
Scott and Mel Watt. We will have 5 days to send out questions.
You can send back answers and comments so that they will go
into the record.
I think there are 102 days before November 4. I think this
hearing has been extremely worthwhile in terms of fleshing out
the areas that we are going to have to work in.
So I thank you all very much. The Subcommittee is
adjourned.
[Whereupon, at 6:08 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record