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


 
  HEARING ON ELECTION CONTINGENCY PLANS: WHAT HAVE WE LEARNED AND IS 
                           AMERICA PREPARED? 

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON ELECTIONS

                           COMMITTEE ON HOUSE
                             ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                  HELD IN WASHINGTON, DC, MAY 14, 2008

                               __________

      Printed for the use of the Committee on House Administration


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

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

43-798 PDF                      WASHINGTON : 2008 

For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
Washington, DC 20402-0001 















































                   COMMITTEE ON HOUSE ADMINISTRATION

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

                       Subcommittee on Elections

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


   ELECTIONS CONTINGENCY PLANS: WHAT HAVE WE LEARNED AND IS AMERICA 
                               PREPARED?

                              ----------                              


                        WEDNESDAY, MAY 14, 2008

                  House of Representatives,
                         Subcommittee on Elections,
                         Committee on House Administration,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 2:10 p.m., in 
room 1310, Longworth House Office Building, Hon. Zoe Lofgren 
(chairwoman of the subcommittee) presiding.
    Present: Representatives Lofgren, Davis of Alabama and 
McCarthy.
    Staff Present: Thomas Hicks, Senior Election Counsel; 
Janelle Hu, Election Counsel; Jennifer Daehn, Election Counsel; 
Matt Pinkus, Professional Staff/Parliamentarian; Kyle Anderson, 
Press Director; Kristin McCowan, Chief Legislative Clerk; 
Daniel Favarulo, Legislative Assistant, Election; Gregory 
Abbott, Policy Analyst; Gineen Beach, Minority Election 
Counsel; Ashley Stow, Minority Election Counsel; and Bryan T. 
Dorsey, Minority Professional Staff.
    Ms. Lofgren. Good afternoon and welcome to the Committee on 
House Administration's Subcommittee on Elections and the 
hearing that we are having on Election Contingency Plans: What 
Have We Learned and is America Prepared.
    In the past several years, natural and manmade disasters 
have resulted in more attention being drawn to the need for 
election contingency planning. September 11, 2001, disrupted 
the statewide primary in a New York; Hurricane Katrina caused 
delays in administering a New Orleans local election; and, more 
recently, the February tornados which occurred on Super Tuesday 
posed a challenge. All of these events have brought to light 
the necessity of taking precautions and making preparations to 
manage emergency situations affecting the election system.
    There are States that have addressed, to some extent, 
Election Day emergencies. Generally, these policies deal with 
communications at the State level with the development of 
specific plans to be determined by counties and cities. While 
the 16 States that have taken these steps should be commended, 
it's not enough. What role the Federal Government should play 
in assisting States and localities in planning for emergencies 
and recovering from these emergencies needs to be defined.
    In an attempt to help clarify the role of the Federal 
Government in assisting States and localities, the Federal 
Emergency Management Agency was invited to testify today, but 
they declined, stating that it, ``does not have any statutory 
role in preparing for and carrying out elections.'' I disagree. 
FEMA does have a role under Section 406 of the Stafford Act to 
assist State and local governments for the replacement or 
repair of equipment and structures damaged by a major disaster. 
406 also includes wages and eligible work which FEMA defines as 
work necessary as a result of a disaster within the disaster 
area and the legal responsibility of the applicant. This 
definition clearly would include election costs. In fact, FEMA 
has already acted in this capacity. FEMA approved $7.9 million 
to assist the New York Board of Elections to cover expenses 
associated with canceling and rescheduling the statewide 
primary elections of September 11, 2001. It also provided 
reimbursement for election expenses in Florida incurred as a 
result of Hurricane Andrew in 1992.
    Former Louisiana Secretary of State Ater was invited to 
testify about his experiences with elections as a result of 
Hurricanes Katrina and Rita and attempts made by Louisiana and 
Mississippi for reimbursement for election expenses and other 
issues but, unfortunately, had to cancel his appearance due to 
a scheduling conflict. His testimony will be submitted for the 
record.
    For these hurricanes, FEMA took the position that it was 
not required under 406 to provide reimbursement for election 
expenses related operating costs provided the minimal 
assistance for damaged equipment was the issue. This has been a 
complete change of FEMA's past position regarding requests for 
election assistance, so I plan on pursuing this matter further 
with FEMA to make sure that Federal Emergency Management Agency 
does what it needs to do to assist States and localities just 
as it has done in the past.
    I thank all the witnesses who have accepted the invitation 
to testify before the Subcommittee today. I look forward to 
their testimony as we explore what State and local governments 
have done to prepare for an emergency on Election Day and what 
role the Federal Government should play in preparing and 
responding to such an emergency.
    [The statement of Ms. Lofgren follows. Additionally, a 
declination letter from FEMA follows.]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Ms. Lofgren. Since we will be having another series of 
votes in about an hour, in the interest of time I will ask 
other members to submit opening statements for the record; and 
we will go directly to our witnesses.
    I would like to introduce Mr. Thomas Wilkey. He is the 
Former Executive Director of the New York Board of Elections 
and since 2005 has served as the Executive Director of the 
Elections Assistance Commission. Prior to his work with the 
EAC, Mr. Wilkey was also a founder and former president of the 
National Association of State Election Directors and a member 
of the Election Centers Board of Directors.
    Next, we have Ms. Laurel Beatty. Ms. Beatty is the Director 
of Legislative Affairs for the Office of the Ohio Secretary of 
State. In this capacity, Ms. Beatty serves as liaison to Ohio's 
legislative process and represents the Secretary of State with 
the Ohio General Assembly and 88 County Boards of Election. 
Prior to her work with the Secretary of State's Office, Ms. 
Beatty worked as a litigation lawyer at Frost, Brown and Todd, 
as well as Kegler, Brown, Hill and Ritter. Ms. Beatty received 
her BS from Spellman College and her JD at Vanderbilt 
University; and we are pleased to have her here because her 
Secretary of State is receiving the Profiles in Courage Award 
today, which is really quite an achievement.
    Finally, we have Ms. Dawn Roberts, who currently serves as 
the Assistant Secretary of State of the Florida Department of 
State. Ms. Roberts has been with the Department of State for 5 
years, where she also served as the Director of the Division of 
Elections as well as general counsel. Prior to her work with 
the Department of State, Ms. Roberts was also staff director of 
the Florida House of Representatives Committee on Election 
Reform, as well as Florida's Senate Judiciary Committee. Ms. 
Roberts received her BA from Converse College and her JD from 
Florida State University.
    We welcome all of you, and thank you for your participation 
today.
    Without objection, your full statements will be made part 
of the record; and we would ask that you provide your oral 
testimony in about 5 minutes. When there is 1 minute to go, if 
the machine is working, there will be a yellow light telling 
you that you need to start wrapping up.

  STATEMENTS OF THOMAS WILKEY, FORMER EXECUTIVE DIRECTOR, NEW 
YORK BOARD OF ELECTIONS; LAUREL BEATTY, DIRECTOR OF LEGISLATIVE 
  AFFAIRS, OFFICE OF THE OHIO SECRETARY OF STATE; AND DAWN K. 
 ROBERTS, ASSISTANT SECRETARY OF STATE, FLORIDA DEPARTMENT OF 
                             STATE

    Ms. Lofgren. So if we could start with you, Mr. Wilkey. 
Thank you so much for being here.

                   STATEMENT OF THOMAS WILKEY

    Mr. Wilkey. Good afternoon, Chairwoman Lofgren, Ranking 
Member McCarthy, Congressman Davis. Thank you for the 
opportunity to testify before the Subcommittee today.
    In my 40 years administering elections, I never would have 
conceived of facing an Election Day disaster as horrific as the 
one on September 11, 2001. Early that primary day morning, 
before the polls opened at 6:00 a.m., I made my customary 
rounds of polling sites in midtown Manhattan. As Executive 
Director of the New York State Board of Elections, I knew the 
importance of being prepared for anything on Election Day. But 
this experience taught me even more about being prepared for 
the worst and how Federal, State and local government can act 
together to prepare and, if need be, respond to an emergency, 
whether it be a terrorist act or a natural disaster on Election 
Day.
    Even though September 11th was a primary day in New York, I 
am proud to say that everyone worked together to hold the 
elections just 2 weeks later. This was a magnificent feat, 
given the devastation that we had witnessed throughout the 
city.
    We were able to do this because of emergency planning, 
communication and coordination among Federal, State and local 
officials. We were able to communicate with polling places 
quickly in New York City because, as is customary, a police 
officer is on duty in every polling place throughout the city. 
Through the officers, we were able to communicate directly all 
the needs of the Governor's executive order and the 
administrative judge's--11th Judicial District Judge's oral 
order that the election be suspended or cancelled and that poll 
workers should pack up all supplies and vacate the premises 
immediately.
    Our poll list printing facility was destroyed in that 
attack. Fortunately, our management information systems 
department had a backup copy stored at a secure remote 
facility. We were quickly able to reduce all the poll books, 
some 5,000 of them, and have them ready for the primary that 
took place, the rerun primary, less than two weeks later.
    The State government also acted quickly. Within two weeks 
of the attack--within two days of the attack, the legislature 
passed and the Governor signed the Emergency Primary 
Rescheduling Act of 2001 which provided legal authority to 
reschedule the primary less than two weeks later.
    The Board personnel in New York City moved 7,700 voting 
machines to their warehouses for reprogramming in time for the 
next election, working with local officials of the School Board 
and Police Department to have access to cordoned-off areas of 
the city. Lower Manhattan was virtually closed in frozen zone 
below 14th Street, where the Board's general offices was 
located, for at least two weeks.
    The Board placed public notices announcing the rescheduled 
primary date, times and polling place locations to make sure 
voters knew where to go. On Election Day--on election night, 
rather, we tallied the votes the old-fashioned way. They were 
delivered to the local police precincts and then hand-delivered 
to the central tally center at police headquarters.
    Lots of things can go wrong on Election Day and often do. 
This is why it's so important to anticipate every possible 
scenario so voters can participate. Of course, I don't think 
anyone could have prepared for September 11th, but the 
contingency planning we already had in place was the reason we 
were able to reschedule the primary so quickly.
    And since I have an extra minute I will add it was the 300 
employees in the City Board of Elections and employees 
throughout the whole State of New York that really went to work 
and rolled up their sleeves. I am so proud to be associated 
with those people. They worked hard and got the job done in a 
very short period of time.
    We know turnout will be huge in November. We know Mother 
Nature could disrupt the process. The EAC, I am pleased to 
report, has issued tools that provide a framework for 
developing and implementing contingency plans; and if we 
continue to work together, Federal, State and local, we can be 
ready for anything this November.
    Thank you, Madam Chair.
    Ms. Lofgren. Thank you very much, Mr. Wilkey.
    [The statement of Mr. Wilkey follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Lofgren. We would be pleased to hear from you, Ms. 
Beatty.

                   STATEMENT OF LAUREL BEATTY

    Ms. Beatty. Good afternoon, Chair Lofgren and distinguished 
members of the House Subcommittee on Elections. Thank you for 
the opportunity to offer testimony on Election Day contingency 
plans.
    I am Laurel Beatty, Director of Legislative Affairs and 
counsel to the Voting Rights Institute for Ohio Secretary of 
State Jennifer Brunner.
    The advent of electronic voting machines and the passage 
and the implementation of the Help America Vote Act drastically 
changed the landscape of election administration. How election 
administrators plan for emergency situations also changed with 
the adjustment to these innovations. Ohio currently uses 
optical scan and direct electronic recording voting machine 
technology and has found that careful planning and quick 
adjustments have enabled our election administrators using the 
equipment to protect against potential disasters.
    The March, 2008, primary election in Ohio is an example of 
prudent planning and quick on-the-spot thinking which helped 
our State carry out the election process. Leading up to that 
election, Secretary Brunner began making preparations by 
removing some of the impediments that plagued Ohio in previous 
elections.
    In September of 2007, Secretary Brunner commissioned a risk 
assessment study of the three voting machine systems used in 
Ohio known as Project Everest. The purpose of the study was to 
provide a comprehensive, independent, balanced and objective 
assessment of the risk to election integrity associated with 
Ohio's voting systems. This also encompassed election-related 
equipment, testing standards and associated internal controls, 
including the extent to which integrity violations are 
possible, preventable, detectable and correctable. The results 
were crucial to evaluate the integrity of Ohio's election 
systems before the March, 2008, primary election and for future 
elections.
    The Everest study contained scientific and industrial 
findings that Ohio's voting system had significant problems. 
With these disturbing findings in hand before the March 
primary, Secretary Brunner embarked on a campaign to implement 
several initiatives that would give boards of elections the 
tools necessary to deal with an emergency situation should they 
arise and should funding not be available to replace voting 
machines.
    Secretary Brunner required Ohio county boards of elections 
to provide our office with security plans that detailed chain 
of custody procedures for electronic voting machines. County 
boards of elections used this mandate as an opportunity to 
assess the integrity of their processes in handling voting 
equipment.
    Secretary Brunner also required all county boards of 
elections that utilized touch screen voting machines as their 
primary voting systems to print back-up paper ballots in the 
amount of at least 10 percent of the number of voters who voted 
in a similar, previous election. Secretary Brunner's directive 
effectively accomplished its intended purpose. When machines 
were not working properly in several counties, voters were able 
to cast their votes on paper ballots. Voters also used the 
paper ballots to vote during power outages in an ice storm in 
several Ohio counties.
    Secretary Brunner also increased the legal staff, which 
paid off, as the office was able to field calls from county 
boards of elections continuously throughout the day and address 
legal concerns in real-time. All counties were instructed by 
directives to notify their assigned attorney in the office of 
machine failures or ballot shortages. Communications between 
county boards of elections and the Secretary of State's Office 
were optimal. We worked with boards of elections developing 
contingency plans to use ballot-on-demand machines. We also 
established a well-devised partnership with the Attorney 
General's Office, where several attorneys from that office were 
stationed in the field and were able to seamlessly obtain court 
orders when and where they were needed.
    The 16 regional liaisons in the office were also on site 
throughout the State at boards of elections; and, in one case, 
a regional liaison assisted in delivering provisional ballots 
to individual precincts when those ballots ran low.
    Secretary Brunner also alerted law enforcement throughout 
the State of its legal responsibilities in assisting election 
officials on Election Day, and county sheriffs in several 
counties provided great aid to the local boards of elections in 
assisting the transportation of ballots during a Level 3 
weather emergency.
    The November, 2008, general election is approaching. With 
the Everest study in mind, Secretary Brunner will do everything 
within her power to ensure that Ohio is ready for the election 
in November.
    Thank you very much.
    Ms. Lofgren. Thank you very much.
    [The statement of Ms. Beatty follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Lofgren. We turn now to our witness, Ms. Roberts. 
Welcome.

                  STATEMENT OF DAWN K. ROBERTS

    Ms. Roberts. Thank you, Madam Chairwoman, distinguished 
members of the Subcommittee on Elections.
    My name is Dawn Roberts. I am the Assistant Secretary of 
State for Florida and the Chief of Staff to Secretary Kurt 
Browning.
    I have been asked to describe the contingency plans that 
were in place for the 2004 Presidential election prior to the 
landfall of Hurricane Charlie and what lessons we learned in 
Florida. I have also been asked to describe contingency plans 
that we have in place for our upcoming fall elections.
    We have had an Elections Emergency Act on the books in 
Florida since 1992. This Act authorizes the Governor to 
suspend, delay or reschedule an election. The goals of this Act 
are to maximize participation in the electoral process but at 
the same time to ensure the safety and welfare of our voters 
and our poll workers. It is to protect the integrity of the 
election and to provide for a safe and orderly procedure should 
an election have to be rescheduled.
    In response to the passage of that Act, the Division of 
Elections promulgated by rule in 1994 a comprehensive emergency 
suspension plan. This plan covers six broad areas with respect 
to election administration: notification procedures through 
PSAs; conduct of a rescheduled election with a focus on 
assessing polling places; temporary polling sites; 
consolidation of precincts; absentee voting, allowing for 
temporary absentee voting sites to be established; voting and 
tabulating equipment, ensuring that the supervisors of 
elections have the flexibility to borrow and lease equipment 
should there have been damage during the event; and also, 
safety of the existing polling places. Should equipment have 
already been deployed or ballot materials, there needs to be 
procedures in place to secure those sites to protect the 
integrity of the election. And, lastly, what do you do with the 
release and certification of results, especially if you've got 
races that have crossed jurisdictional boundaries?
    In 2004, Florida experienced four storms in 6 weeks. The 
first storm, Hurricane Charlie, hit Florida just 2 weeks before 
our primary. It could not have been without the extraordinary 
efforts at both the State and local level that we were able to 
actually keep to our elections schedule and hold an August 31st 
primary.
    What we learned is really what we summarize as the three 
P's: poll workers, polling places and power restoration. 
Through our emergency operation center in Tallahassee, we were 
able to get together with those supervisors who were impacted 
by Hurricane Charlie and develop a contingency plan to go 
forward with the election as scheduled.
    Some of the lessons we learned: you have to think outside 
the box. Your first reaction may be to reschedule an election, 
but until you have done an assessment of your polling places, 
your poll workers, worked with your supervisors of elections, 
you don't know for certain whether or not a rescheduling is 
absolutely necessary.
    We learned quickly that you have to have communication with 
the Department of Justice, especially if you are a pre-
clearance State, as we are in Florida. We have five counties 
subject to pre-clearance. So whenever you change polling sites, 
consolidate precincts, change any of the rules of the game, 
that has to be pre-cleared through the Department of Justice; 
and they were very cooperative with us.
    Try not to duplicate your efforts, and what works in one 
emergency may not work the same in another. For example, in 
Hurricane Charlie, what worked did not work with Hurricane Ivan 
that hit the Panhandle. With Hurricane Ivan, they had more time 
to prepare and so they were actually able to handle a lot of 
their issues from the local level. But we--in our zeal to help 
them, stepped over some lines with respect to who was doing 
what with assessing the polling places.
    Having up-to-date phone trees cannot be understated. And if 
you don't have a continuity of operations plan at the local 
level and you take it off the shelf once in a while and look at 
it and update it, there is nothing the State is going to really 
be able to do for you.
    Since then, we have established a regional response plan 
with our supervisors of elections to approach election 
contingency from a regional perspective. We also developed, for 
the Division of Elections particularly, their own continuity of 
operations plans. The supervisors of elections have entered 
into memorandums of understanding amongst themselves to 
actually put down on paper that they will assist one another in 
the event of an emergency.
    And, lastly, we have actually started looking at what we 
would do if there was a pandemic influenza situation with an 
election.
    I will be happy to answer any questions.
    Ms. Lofgren. Thank you very much.
    [The statement of Ms. Roberts follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Lofgren. I think we will have a few questions. I would 
turn first to Mr. Davis for whatever questions he may have.
    Mr. Davis of Alabama. Thank you, Madam Chairwoman.
    Let me thank you all for being here.
    One of the things that the panel--or that the committee, 
rather, is obviously trying to assess is the feasibility or the 
advisability of any Federal law regarding Election Day 
disasters. I want to get some sense from all of you, first of 
all, under the statutory provisions in Florida and New York, I 
take it Ohio, Ms. Beatty, does not have a provision for 
suspending an election, is that right?
    Ms. Beatty. No, it does not.
    Mr. Davis of Alabama. Florida and New York apparently do.
    So, Mr. Wilkey--well, let me just ask you with respect to 
New York City. Obviously, the election was postponed in New 
York City. Who made the decision to do that and how did that 
happen on 9/11?
    Mr. Wilkey. Well, for clarification, in the primary 
election in New York we have two different polling hours. In 
the city of New York, the counties in Long Island and the 
immediate counties adjacent to New York--Westchester, Rockland, 
Orange, Ulster--the polls are open from 6:00 a.m. to 9:00 p.m., 
and in Erie County upstate in the Buffalo area. In the 
remainder of the State, the polls do not open until noon. They 
are open from noon to nine. This has been the way it has been 
since I have been in election, which is nearly 40 years.
    There was no provision for canceling an election in our 
law. There is provisions in the law for rerunning a primary or 
an election, or a primary particularly after the fact, 
depending on what happened that day.
    So two things really happened. In the city of New York, a 
judge had already been assigned by the administrative judge of 
the court system in New York to oversee any problems that came 
up on Election Day. There is a judge in every borough office 
who handles Election Day complaints, and the administrative 
judge of the 11th District was assigned on that day to handle 
problems.
    And so we immediately scrambled. I was on my way down to 
the general office, which was only three blocks from Ground 
Zero. It was virtually unaccessible. And so by phone we, the 
Board staff and their counsel, got an oral order from the judge 
canceling that election; and that order went out immediately.
    Mr. Davis of Alabama. So one judge has authority to cancel 
an election of an entire city?
    Mr. Wilkey. The order was taken under consideration; and I 
think within a couple of minutes, knowing what was going on 
then, he immediately suspended that election.
    Mr. Davis of Alabama. Ms. Roberts, let me ask you, who has 
the statutory authority in Florida to make the actual decision?
    Ms. Roberts. The Governor. The Secretary of State can 
request an extension or rescheduling, a supervisor of elections 
or a city clerk that is in charge of a municipal election. All 
of those entities, those individuals, can request that there be 
a delay, but only the Governor can make that decision.
    Mr. Davis of Alabama. And is the Governor somehow recused 
or precluded, if the Governor happens to be on the ballot?
    Ms. Roberts. No, sir.
    Mr. Davis of Alabama. Is that a problem?
    Ms. Roberts. To be honest, I had not thought about that 
before. Potentially.
    Mr. Davis of Alabama. Let me just try to get some input 
from you with respect to what we might do as far as Federal law 
goes.
    There was some conversation a few years ago about Congress 
creating the authority to suspend an election; and, of course, 
all the obvious practical problems were raised. No one or at 
least a lot of people were not comfortable with the idea of the 
President of the United States having that authority. It is not 
necessarily feasible for Congress to have it, because there is 
the obvious conflict issue if Members of Congress are 
themselves on the ballot. Second of all, Congress might not be 
in session; and if Congress is not in session you wouldn't have 
time to assemble people to make a decision in real-time.
    Can the three of you just--first of all, let me just ask 
you, do any of the three of you think that there should be a 
Federal law that in any way entails a suspension of a Federal 
election for President or Congress? Do any of you think that 
would be advisable?
    Mr. Wilkey. I can only tell you, based upon my past 
experience, that, as I indicated, in my State there was not a 
provision for anybody to cancel an election, including the 
Governor. The Governor used his executive power that day to 
basically do what had to be done.
    We still do not have a law on the books to do it, because 
the legislature and the Governor cannot agree on who would do 
it. Should the Governor do it? Should the State Board of 
elections do it? Should the courts intervene? And to this day 
we still don't have a provision in law to do it.
    While I understand some of the statements that were made by 
the former chairman of my commission, I think it needs to be 
looked at very carefully. Because if an attack or problem 
happens on Election Day, as many people have noted elections 
are going to continue to go on. And really, you know, there is 
a long-held provision in our Constitution that the 
administration of elections is reserved to the State level. And 
so I think that the debate would have to be very carefully made 
in Congress to do that.
    But I know that, based on my own experience in New York, it 
needs to be addressed. It needs to be looked at. How it is 
done, I can't make a suggestion. But I think that it does need 
to be addressed. But I do agree.
    I think one of the best statements I have read on that 
issue was by your Senator, Madam Chair, Senator Feinstein, who 
made the comment, you know, we are having elections all over 
the country. If we have a situation, it is likely to be only in 
one area of the country and why suspend voting for the rest of 
the country. And I think that is a very good observation.
    But that doesn't mean that we shouldn't have some 
discussion about it, and that is why today I continue to be 
saddened that we still don't have that provision in our State 
law. I think it needs to be done, and somebody needs to be 
responsible for it.
    Ms. Lofgren. If I may, one possibility--I mean, I am not 
necessarily proposing this, but where States have adopted a 
statutory scheme, they are ahead of the game. Florida has. Some 
other States have. California I don't think has. I remember the 
Loma Prieta earthquake. There was an election in San Francisco, 
and it was not really possible to have the election.
    So it seems to me that one opportunity would be to have 
some statutory scheme, but that if a State has adopted its own 
that you would not preempt that scheme. So at least there is 
some statutory authority not for the whole county but for 
Federal elections where it is impossible to actually hold the 
election because buildings have fallen down or whatever. So 
that if there is an earthquake in southern California it 
shouldn't disrupt the election in Alabama. But there needs to 
be some ability to respond to the fact that people can't drive 
down the road because the freeways have collapsed, for example.
    That is just a thought that occurred to me.
    The gentleman's time has expired.
    I have my 5 minutes, so I will be very--I don't know if I 
will use the entire 5 minutes.
    But one of the questions I had--and I understand, Mr. 
Wilkey, that you had back-up voter registration information in 
a different location; and it seems to me that that is a very 
smart thing to do, number one, and something that I don't know 
whether--I honestly don't know whether my county has done that 
or whether my State has done it. I wonder if Florida and Ohio 
have back-ups at remote locations, and if so where and how do 
you do that.
    Ms. Roberts. I can speak for Florida. With the advent of 
the Help America Vote Act, a requirement to have a single, 
statewide, computerized voter registration database--we call 
ours the Florida Voter Registration System. We actually have a 
hot site that is our back-up from the State perspective. But we 
have also allowed when we designed our system that our 67 
counties still were able to maintain their own voter 
registration system, and it interfaces with the State system, 
so we do have multiple back-ups.
    Ms. Beatty. Ohio also has multiple back-ups. The counties 
keep the voter registration information on a county level and 
transfer it to the Secretary of State's Office, and the 
Secretary of State also backs that up through the State of Ohio 
computer center.
    Ms. Lofgren. The final question I wanted to ask--well, 
actually, two. As we saw with Hurricane Katrina and in some 
cases these terrible hurricanes and tornados that have 
occurred, disasters can result in displacement for residents 
that last for a long time. How do you approach displaced 
residents that still have an intent to reside--they are still 
registered to vote. How do you maintain your contact with your 
citizens who have been displaced but intend to rebuild their 
lives after a disaster as voters?
    Ms. Roberts. In Florida, in 2004, when Hurricane Charlie 
hit, it was a concentrated impact. It didn't have large 
displacement of our citizens, and we were able to maintain 
contact and provide them with information with public service 
announcements. We actually chartered a plane and flew a banner 
across that region with the 1-800 phone number. We passed out 
palm cards in areas where they were passing out ice and water 
and so forth, giving the voters information.
    But certainly, I mean, you are very correct, that if you 
have a large displacement of your population, as with Hurricane 
Katrina, then that's going to require a whole different 
assessment and set of circumstances.
    Ms. Beatty. Congresswoman, I would echo Ms. Roberts' 
sentiments. The weather emergencies that took place in Ohio did 
not displace anyone. However, it did spur a lot of interest in 
the possibility of a vote-by-mail system in Ohio.
    Ms. Lofgren. Interesting.
    Let me ask just a final question. Because, as you might 
have noticed from my opening statement, I am a little bit 
miffed at FEMA who no longer thinks that they have a role in 
emergency management or reimbursing States and localities. Have 
you successfully obtained reimbursement for your emergency 
expenses related to elections efforts you have engaged in 
because of emergencies?
    Ms. Roberts. I can speak for 2004 that indeed we had a 
great deal of cooperation with FEMA. And every time we had to 
put something in the tracking system we had an accounting 
afterwards, and our accounting office worked very closely with 
FEMA to get reimbursement.
    Ms. Lofgren. That is good.
    Ms. Beatty. Thankfully, that was not applicable in Ohio.
    Ms. Lofgren. And I know in New York you did get reimbursed.
    Mr. Wilkey. Yes, we did get reimbursed; and they were very, 
very helpful to us. I mean, we needed to be able to get in our 
office building, which was virtually inaccessible in lower 
Manhattan; and we were able to get on the list to get the power 
that we needed and get up and running. And so we were very--
they were very cooperative in that area, and they did reimburse 
us for a large number of the expenses.
    Ms. Lofgren. That is good news, and that is what we want to 
get them back to.
    So, with that, I am going to thank all of you for your 
testimony. We will keep the record open for 5 legislative days. 
If there are additional questions, we will forward them to you. 
And if that happens we ask that you respond as quickly as 
possible so answers could be made part of the written record. 
And we do thank you very much.
    And we will ask our next panel to come forward.
    As the next panel is coming forward, I will introduce them, 
since I believe we will have votes in about 10 minutes.
    Commissioner Rosemary Rodriguez currently serves as Chair 
of the Election Assistance Commission. She was appointed in 
2007 and served as Vice Chair of the Commission during her 
first term. Prior to work with the EAC, Ms. Rodriguez was 
President of the Denver City Council, Director of Boards and 
Commissions for the Mayor's Office and a Clerk and Recorder of 
Denver for 5 years.
    And we also have Mr. Kevin Kennedy. He is the Director of 
the Wisconsin Government Accountability Board, which 
administers and enforces State laws relating to elections, 
campaign finance, ethics and lobbying. Mr. Kennedy has worked 
in election administration for over 25 years, serving as 
counsel and executive director of the Wisconsin State Board of 
Elections. He is a former president of the National Association 
of State Election Directors and a member of the EAC Standards 
Board. Mr. Kennedy received his BA and JD from the University 
of Wisconsin at Madison.
    We welcome you both; and, as you know, your full statements 
will be made part of the official record. We ask that you 
summarize them in about 5 minutes.

  STATEMENTS OF THE HONORABLE ROSEMARY RODRIGUEZ, CHAIRWOMAN, 
  U.S. ELECTION ASSISTANCE COMMISSION; AND KEVIN J. KENNEDY, 
      DIRECTOR, WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD

    Mr. Lofgren. We will begin with you, Chair Rodriguez.

                STATEMENT OF ROSEMARY RODRIGUEZ

    Ms. Rodriguez. Thank you, Madam Chairman and Honorable 
Davis. Thank you for the opportunity for the Election 
Assistance Commission to be here today.
    What have we learned in elections in the United States? 
That anything can happen on Election Day and that we have to be 
prepared.
    You also asked, is America prepared? And we at the Election 
Assistance Commission are hopeful that they are prepared, and 
we have issued guidance, and I will discuss that a little bit 
in my testimony.
    But what we know already is that contingency planning in 
2008 is more important than ever. We have seen record 
registration and interest in this election and turnout in the 
primaries. In most cases, election officials were ready. When 
tornados hit Tennessee and heavy rain came through Ohio, 
election officials pivoted quickly. Polls were relocated. Hours 
were extended. But these solutions were the result of careful 
planning on the part of election officials. I am very glad to 
hear Ms. Beatty had an opportunity to discuss that.
    In addition to nature's fury, we have to be ready for power 
outages, phone system failures and, most likely in November, an 
insufficient number of ballots. Another troublesome scenario is 
when poll workers fail to show up.
    The point is we've already seen each and every one of these 
occur, so we know what to expect, and we should plan 
accordingly. The EAC has provided election management 
materials. We have copies at the door. We advise election 
officials to obtain a copy of their State's emergency 
operations plan. Who is authorized to act during an emergency 
situation? Which Representative Davis got right to. Who is in 
charge? Who can extend poll hours? Who can reschedule an 
election?
    Election officials should implement contingency plans for 
emergencies. Involve your county's information technology staff 
to assist with developing procedures to create a computer 
action plan.
    Some of the questions election officials should consider 
include are records backed up regularly and stored in secure 
off-site locations, which sounds like they are. How do we 
educate and inform poll workers of changes? How do we inform 
the public when there is an emergency? And how do displaced 
voters participate? Hopefully, many have the opportunity to do 
absentee ballots, but some States are stricter about that. They 
must implement a continuity of operations plan that reflects 
their contingency plan, establish a line of succession for 
election staff. Who is in charge of the office if something 
happens? Coordinate with law enforcement and chief State 
election officials and document procedures for Election Day in 
case of problems. And develop a complete list of polling place 
locations and give them to fire department and police 
departments in your jurisdiction.
    We have focused on ensuring that States and local 
jurisdictions have contingency plans in place. Most disasters, 
per Senator Feinstein's observation, are localized. However, we 
cannot afford the reality of a disaster that has national 
implications. As uncomfortable as this idea makes us, I believe 
it deserves our attention. We should begin a dialogue among 
voters, Federal and State legislators, election officials and 
plan together.
    EAC appreciates the opportunity to provide testimony today; 
and we are ready to work with you, State and local election 
officials and voters. Voters should know that nothing will stop 
them from making their voices heard loud and clear on Election 
Day.
    Thank you.
    Ms. Lofgren. Thank you very much.
    [The statement of Ms. Rodriguez follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Lofgren. Mr. Kennedy, we would be pleased to hear from 
you.

                 STATEMENT OF KEVIN J. KENNEDY

    Mr. Kennedy. Thank you very much Madam Chair, Congressman 
Davis. It is truly an honor to be here, and I appreciate that. 
It has also been an honor and a privilege to be Wisconsin's 
chief election official for 25 years.
    I would like to just make a few points, rather than go 
through the testimony that's been submitted for the record; and 
I think this is a great forum to do this, because it serves a 
purpose for the public as well as for you.
    Preparedness is not new in election administration. It has 
been something that dedicated election officials have been 
approaching for years. It has always been more of what are we 
going to do under this circumstance. Now I think what's 
happened as a result of the 2000 election, the 2001 9/11, the 
issues that we've heard, as a community we are talking. And we 
take--I think it is now a point of emphasis. It is more than 
just what are we going to do.
    You know, we had those hot button things that got our 
attention, but now I think election officials are taking a very 
systemic approach. And you saw that reflected in the testimony 
of the individuals before that, you saw that in the commitment 
from the U.S. Election Assistance Commission in terms of the 
guidance that they've prepared that I referenced in my 
testimony. And I think that is important.
    I was asked to talk about Wisconsin, and that is why I said 
preparedness just isn't a new thing in Wisconsin or other 
places. But we've really incorporated into all aspects of our 
election administration and, quite frankly, in our 
administration of a State government. In our training, we have 
detailed information.
    We have to certify the chief election inspectors in the 
State of Wisconsin. My agency does that, and right away we put 
the pressure on them. Do you have--make sure you review the 
plan, ask for it, which puts the pressure on our clerks. And in 
Wisconsin we are unique in the sense we don't run our elections 
at the county level. We run it at the municipal level. There 
are about 8,000 local election officials, and 2,000 of them are 
in the State of Wisconsin. I have 1,851 town cities and 
villages that are on the ground, people running the elections. 
And my 72 county clerks are involved, but voter registration 
and absentee voting and polling places and poll workers are in 
the hands of those dedicated people, many of whom are part 
time. But we incorporate that into the training. We try to put 
some responsibility on everyone.
    Now, I don't have a copy of a plan from 1,851 
municipalities in 72 counties, but they have been hearing about 
this for a long time from us. As I said, we've moved from the 
what are you going to do, to let us see a plan, let us have 
that. And that is incorporated in the training. That is 
incorporated in our election preparation. I find it ironic that 
it has become part of our culture for an election 
administration, and as we move into 2008 Wisconsin has been a 
battleground State for the last two Presidential elections, and 
we don't expect that to change in 2008.
    And so the day that I got a call from the staff here I was 
actually speaking to the State bar and had been asked to speak 
on election disaster. Avoiding Your Worst Nightmare was the 
title of the talk that they gave to me. So even the attorneys 
that advise my local election officials are there wanting to be 
prepared.
    And so it is--you know, I think that is the benefit, and I 
think this is where this hearing adds to this. Because the fact 
that we have made a part of our culture in election 
administration the fact that our attorneys are saying we need 
to know this as we go into 2008 means that we can then convey 
to the public that we are taking this seriously.
    The other thing that I want to mention, there was one good 
example that we used, and that is in the 2006 election, which 
is our statewide election for Governor and Attorney General as 
well as our legislative elections and congressional elections, 
we had a bomb threat at a polling place at a high school in the 
city of Madison; and the handling of that bomb threat was 
exactly--showed how well the preparedness had paid off. All the 
preaching that we had done and sample plans we had set out, the 
city of Madison was well prepared. They called our office and 
they said what do we do--or this is what we are doing, is that 
okay, do you have any suggestions, was really the approach that 
they took. The city attorney was saying, do you have a model 
form for going into court to extend voting hours, was it okay 
for us to set up across from the building so that voting could 
continue.
    And it all worked together well. We got a court extension 
for an extra hour, but we really never really disrupted the 
voting other than moving the equipment out of the polling 
place. And we had people in there. And because it was well 
communicated to the public, that is why we went to court.
    It wasn't because we broke the chain of voting, but the 
fact that the media was covering this and knew about it, the 
public said, gee, there is a disruption. What's going to 
happen? We got that extension so that there was time for them 
to be comfortable with the change.
    Let me just finish with one comment about Federal roles in 
this, and that is I think Wisconsin has a well-developed 
emergency planning program. I think the Feds have really 
stepped in to beef that up through Homeland Security, and I 
think that creates a real synergy where we can use that 
information. Clearly, our infrastructure is stronger now than 
it was eight years ago; and I think that is a result and I 
think that is a role that the Federal Government plays very 
well on that.
    And what we really need to do is, as I think the Chair 
mentioned, get election management as a component. If it is on 
the radar screen, then they know. That is part of what we do to 
keep our country running.
    Thank you very much.
    Ms. Lofgren. Thank you very much.
    [The statement of Mr. Kennedy follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Lofgren. Thanks to both of you.
    I will turn now to Mr. Davis for his questions.
    We welcome Mr. McCarthy to the hearing.
    Mr. Davis of Alabama. Thank you, Madam Chairwoman.
    Let me begin, Ms. Rodriguez, with your testimony. I agree 
with you at the outset that this is not an implausible Tom 
Clancy kind of scenario. One of the things that we believe 
regarding 9/11 is that al Qaeda mistakenly thought that hitting 
the Pentagon, hitting the Capitol and hitting the World Trade 
Center would have a decapitating effect on our government. That 
was a misunderstanding of something as basic as the fact that 
Members of Congress aren't all sitting around the floor in the 
morning on Tuesday, and as fundamental is the fact that our 
economic and military command structures are much more 
dispersed, and I think they appreciate it.
    But the fact that they got it wrong doesn't mean that the 
intent was not there. So it is plausible, it is conceivable 
that some election in the future, al Qaeda or some version of 
al Qaeda around the world could try to do, for example, a 
series of multiple attacks. And while it takes Senator 
Feinstein's observation about an attack by definition being in 
a limited physical location, you could have a run of suicide 
bombings, for example, which would have the effect of 
paralyzing those communities and causing widespread fear in 
other places.
    So I don't view this as a Tom Clancy scenario. But what I 
struggle with is the question of decision-making power. 
Obviously, the one thing the Federal Government lacks is an 
election board. We don't have the equivalent, Mr. Kennedy, of 
your organization at the Federal level. And, obviously, the EAC 
is certainly not the Federal version of a Board of Registrars 
that can make or implement these decisions.
    Vesting the power to suspend an election on the President 
of the United States jars us for all kinds of reasons. There 
have been two instances in our history when presidents acted to 
suspend the constitutional rights: Mr. Lincoln's suspension of 
the writ of habeas corpus, Mr. Roosevelt's actions regarding 
Japanese detainees. We don't look approvingly at Mr. Lincoln's 
actions in retrospect; and, frankly, Mr. Roosevelt's actions 
we're appalled by. So giving the power to the executive worries 
us.
    Giving the power to the Congress is implausible. Congress 
is not in session on Election Day in November. You can't 
exactly do a phone-in on something like this. So that would 
certainly strain our system. So is there any conceivable 
statutory authority that you could suggest, Ms. Rodriguez, or 
any conceivable decision-making process that would work?
    Ms. Rodriguez. Well, perhaps you could consider some sort 
of check and balance system that involved the executive, 
congressional leadership perhaps, and the Supreme Court. I 
mean, maybe there is some combination of those three. There 
would have to be a lot of what-ifs built in.
    Mr. Davis of Alabama. Or some of us didn't like it the last 
time the Supreme Court went near an election in this country.
    Ms. Rodriguez. But with the check of Congress and the 
executive, maybe there is something that can be done. It seems 
to me that we ought to have a contingency plan at the national 
level.
    Mr. Davis of Alabama. Mr. Kennedy, would you like to 
comment on that?
    Mr. Kennedy. I will comment based on the Wisconsin 
situation, because we don't have a statute but we do have--that 
clearly says it, but our emergency management authority for our 
Governor is very strong, and there is a clear requirement for 
our agency to work with him. And our position has been that the 
Governor does have the authority to act in this. And I think 
what could be done at the Federal level is something similar to 
the Wisconsin level, recognizing the role of the three branches 
of government.
    I think that Congress can authorize the President to act 
under certain circumstances with a very immediate review by the 
Supreme Court that Congress is allowed to set the parameters on 
this. And I think the comments that people have made about it 
is generally very dispersed. I mean, I think about this in 
Wisconsin about snowstorms. If we close a polling place in 
Green Bay, how does that affect the southwest corner of the 
State?
    Mr. Davis of Alabama. What if the President were on the 
ballot?
    Mr. Kennedy. I think, you know, we elect governors and 
presidents to be our leaders; and they are going to be held 
accountable. They may be on the ballot, they make that 
decision, but ultimately we have courts to keep them in check. 
I think that is something to recognize; and that is why when 
Congress, if it goes this route, sets the parameters. But I 
think our three branch government allows us to set those kind 
of standards. And it is a risk, but I would say the same thing 
we would be asking of the Governor on the ballot.
    Ms. Lofgren. Thank you, Mr. Davis.
    Mr. McCarthy.
    Mr. McCarthy. Thank you very much.
    I apologize for coming late. I had a couple committees.
    But just kind of along that same line, I know Mr. Davis 
mentioned about people get concerned when it goes to the 
courts. But, first, a little truth in advertising. It was Al 
Gore who requested to go to the Supreme Court.
    But the checks and balances that we do have set up, much as 
this body here, two of us worked on a--if you have a contested 
race in Congress, it goes before Congress. And I think 
Chairwoman Zoe Lofgren, when we went through ours, showed a 
very good example of how to do it right. So there is a way of 
getting there, but you do need the checks and balances, and you 
do need to be able to look at it both ways.
    Before I progress, I do want to ask unanimous consent to 
enter these two documents into the record: the written 
testimony for Keith Cunningham, Allen County Ohio Elections 
Director, and the Milwaukee Police Report.
    Ms. Lofgren. Without objection, they will be made a part of 
the record.
    [The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. McCarthy. I have a couple different questions, one for 
Mr. Kennedy. Knowing and hearing the end of your testimony and 
reading some of it there, I know you have the back-ups to paper 
prepared for it. How often have you used that in Wisconsin?
    Mr. Kennedy. Wisconsin has been a paper ballot State for 
years. In fact, we had 900 polling places that had hand-counted 
paper ballots before HAVA where we either added optical scan or 
a touch-screen voting system to that.
    Occasionally, with our optical scan we have had to hand 
count ballots, because we either ran out of ballots and we had 
a provision for substitute ballots since they aren't going to 
be read by the machine. It has been part of our culture. It 
doesn't happen a significant number of times. But I would say 
in any general election we will have a number of hand-counted 
ballots where it is primarily an optical scan.
    The year 2006 was the first time we had--we have 20 
municipalities that have just touch screen plus paper for their 
absentee voting or for the back-up. So we haven't had an 
experience there, and they are all relatively small 
municipalities.
    Mr. McCarthy. So you are already prepared. You did that on 
your own, your own driven ability.
    Is one of the reasons at times you may have to go to back-
up, is it ever caused by same-day registration, where you have 
people coming in that you have never been able to gauge that 
this was going to happen because they weren't registered prior?
    Mr. Kennedy. No. Election Day registration, a lot of it is 
address changes. We've peaked at about 18 percent in 2006, and 
that is because our small municipalities didn't have voter 
registration.
    Mr. McCarthy. Clarify 18 percent for me. You have 18 
percent new people who come in who voted who weren't registered 
before?
    Mr. Kennedy. In 2006, of the 2.2 million people who voted 
in our gubernatorial election, 18 percent registered at the 
polling place. And part of that was because, as part of HAVA, 
we put a statewide voter registration system in place. We had 
1,500 municipalities that were like North Dakota, no voter 
registration.
    Mr. McCarthy. So almost one-fifth of everyone who voted you 
had no idea was coming.
    Mr. Kennedy. Well, actually, if you are doing--an election 
official who is doing their job has a very good job they are 
coming, because they can gauge the voter turnout. We, quite 
frankly, nailed the turnout for 2006 when we did our 
predictions right almost to the number in terms of how many 
people were going to vote. So if it happens, it is because the 
election official hasn't done their work. Because they--we have 
had Election Day registration since 1976, and we have a good 
sense of how many people register. We know most of them are 
really address changes in the municipality because they reflect 
people's convenience for this.
    Mr. McCarthy. How much of the 18 percent is address change?
    Mr. Kennedy. Well, that one we are just starting to get a 
handle on now. I couldn't give you an answer now, but I would 
say easily half of that.
    Mr. McCarthy. What safeguard do you have? Because in the 
report I was reading, this Milwaukee Police Department, they 
were citing some double voting and some others because of same-
day registration. How do you protect from that?
    Mr. Kennedy. Well, with any double voting you protect with 
it after the election.
    Mr. McCarthy. You protect after the election?
    Mr. Kennedy. You always enforce after the election when you 
are dealing with double voting, because people are going to 
double vote in remote locations.
    Mr. McCarthy. Are those ballots already counted, though?
    Mr. Kennedy. That is a possibility that they may be 
counted.
    Mr. McCarthy. But if I voted twice, if I walked in and I 
registered to vote, so I did it fraudulently, because one out 
of every five people are totally new, so I am registering 
putting it in. I vote and then my ballot goes into that box 
correct or gets counted.
    Mr. Kennedy. That's correct.
    Mr. McCarthy. So how do you know which ballot is which if 
you are having almost 20 percent of the people registering that 
day and they are double voting.
    Mr. Kennedy. Well, when people register to vote on Election 
Day, they are required to provide identifying information so we 
know who the people are who have registered. Anytime you have a 
ballot box stuffing situation--and I can tell you that in 
Wisconsin the number of people who have double voted is very 
small, and we have prosecuted two or three people because we 
have been able to identify them through the statewide voter 
registration system. They always vote in different locations, 
because their name is going to be on the poll as somewhere 
else. They bring their identification to vote in a new 
location. We have had successful prosecutions. That's how we 
stopped that process.
    The Milwaukee Police Report is very speculative. It is 
actually a political document that has more to do with the 
internal politics of the Milwaukee Police Department than it 
does with the conduct of the election in 2004.
    Mr. McCarthy. So you disagree with the special 
investigation unit, you think it is political?
    Mr. Kennedy. I think that the generation of that report is 
political. The Milwaukee police chief did not even see it 
before it was released.
    Mr. McCarthy. So the persons doing this just for political 
reasons is 1 of 67 pages, I guess. If I just follow one 
thought. I ask if it is possible, would you agree that it would 
be more helpful to election officials maybe if you cut off 
registration two weeks prior, that way you still have the 
election going on, the excitement, people can register, but you 
would know how many people are there. You wouldn't have one out 
of every five persons coming in. And from your words, you are 
dealing with it after the election. Then you would make sure 
they couldn't double-vote and have that ballot inside the box 
already counted.
    Mr. Kennedy. I would not agree with that. I think that 
Wisconsin and Minnesota have demonstrated very minimal 
electoral fraud, and it is probably less than you see in places 
that closes 30 days before the election. The Election Day 
registration is generally not the source of the problems. 
Milwaukee's problems in 2004 were generally poll worker-related 
problems for failing to balance the voters against the ballots. 
They didn't really----
    Mr. McCarthy. How much fraud is acceptable?
    Mr. Kennedy. I don't think any fraud is acceptable. 
Realistically, you recognize there are always people who will 
try to game the system. That is why we have prosecutors and 
that is why we build tools into the system to catch those 
people and publicly prosecute them, so that that's the best 
deterrent.
    Ms. Lofgren. The gentleman's time has expired. I will just 
ask a couple of questions because I know we are going to be 
called away to votes in a few minutes. Chairwoman Rodriguez, it 
is my understanding that the former Chairman Suarez sent a 
letter in, I think 2004, to the Department of Homeland 
Security, expressing his concern about the lack of plans to 
deal with disruption of elections due either to a catastrophe 
of whatever nature, and that he never got an answer to this 
letter.
    I guess it is good to know that I am not the only one who 
never gets an answer from Department of Homeland Security.
    The question is, have they, even though they never answered 
the letter, have they provided input to the Commission? Have 
they given support for the planning efforts that the Commission 
has undertaken?
    Ms. Rodriguez. To my knowledge, they have not nor have we 
followed up that letter.
    Ms. Lofgren. Okay. I just want to follow up a little bit 
more on the whole issue of in the case of a disaster that 
disrupts voting, how we deal with that, which is really the 
purpose of this hearing. I think I agree with Senator Feinstein 
that if there is a disruption in one place, you don't cancel 
the election. We are America, we hold elections, we choose our 
leaders ourselves. That should be our plan.
    Having said that, having been through the Loma Prieta 
Earthquake and some other disasters, there are some things 
where you just can't proceed at the moment in a particular 
area. Mr. Davis is right, it is difficult to decide who makes 
that decision in a way that is apolitical that is not biased 
towards any party or candidate. And it strikes me that if we 
were to set some standards, or at least for Federal elections 
put a statute in place that would only be viable if the State 
didn't have a system in place and the States that do would be 
fine. That involved really the Judiciary, which is the least 
political of the three branches of government, that that might 
be at least a useful thing to do. Do you have a reaction, 
either one of you, to that concept?
    Ms. Rodriguez. I like the concept because it would go to 
the State first, does the State have something in place? But 
when in an event that the State didn't, certainly in my 
opinion, somebody has to take some action. And it would make 
sense that Congress with some input, some check, would be the 
person or be the entity.
    Mr. Kennedy. I think I responded to Congressman Davis, 
Congress is in a good position to set some parameters on how 
authorities exercise, and that is one way of approaching it. I 
think any time you have an election that involved Federal 
candidates, even under Wisconsin's situation, we would be 
consulting with our U.S. attorneys, for example.
    Ms. Lofgren. Right.
    Mr. Kennedy. Our congressional delegation would be in touch 
if we had that kind of situation. Even though it would be our 
governor making the decision, recognizing it was a 
congressional, you would end up having ultimate authority on 
judging the outcome of that election after, if it was postponed 
or forcing it to be changed.
    Ms. Lofgren. Chairwoman Rodriguez, it is my understanding 
that only 16 States have a statute or developed plans to deal 
with Election Day emergencies. What should Congress or the 
Commission do between now and October to help or encourage 
States who have not prepared themselves as Wisconsin and 
Florida and others have, to do so, because I think the 
likelihood is natural disasters can happen anywhere.
    And HAVA funds can be used for contingency planning, but it 
doesn't look to me from the reporting data that any of the 
States have used HAVA funding to put contingency planning in 
place. What is your suggestion for us to get States who have 
not prepared in a preparation mode?
    Ms. Rodriguez. Well, I noticed Leslie from the National 
Association of Secretaries of State in the audience.
    Ms. Lofgren. Welcome.
    Ms. Rodriguez. And I have no doubt that she will report on 
this hearing. Mr. Kennedy, thank you for putting visibility on 
this issue. I will chime in because this level of interest in 
what the States are doing, I think, will prompt legislatures to 
address the issue.
    Ms. Lofgren. Okay. With that, I am going to thank each of 
you for your testimony. Note as I said earlier that we will 
keep the legislative record open for 5 legislative days. If 
there are additional questions that the members have, we will 
forward them to you and ask that you respond as promptly as 
possible.
    We thank the witnesses, all of you. A lot of people don't 
realize that the witnesses are volunteers here to help our 
country do the best job possible. So we appreciate the expert 
advice we have gotten today. Thank you very much and this 
hearing is adjourned.
    [Whereupon, at 3:22 p.m., the subcommittee was adjourned.]
