[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
FEDERAL, STATE, AND LOCAL EFFORTS
TO PREPARE FOR THE 2008 ELECTION
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
AND THE
SUBCOMMITTEE ON ELECTIONS
OF THE
COMMITTEE ON HOUSE ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
----------
SEPTEMBER 24, 2008
----------
Serial No. 110-148
(Committee on the Judiciary)
----------
Printed for the use of the Committee on the Judiciary and the
Committee on House Administration
Available via the World Wide Web: http://judiciary.house.gov
and http://cha.house.govFOR SPINE deg.
FEDERAL, STATE, AND LOCAL EFFORTS TO PREPARE FOR THE 2008 ELECTION
FEDERAL, STATE, AND LOCAL EFFORTS
TO PREPARE FOR THE 2008 ELECTION
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
AND THE
SUBCOMMITTEE ON ELECTIONS
OF THE
COMMITTEE ON HOUSE ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 24, 2008
__________
Serial No. 110-148
(Committee on the Judiciary)
__________
Printed for the use of the Committee on the Judiciary and the
Committee on House Administration
Available via the World Wide Web: http://judiciary.house.gov
and http://cha.house.gov
----------
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Washington, DC 20402-0001
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
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
C O N T E N T S
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SEPTEMBER 24, 2008
Page
OPENING STATEMENTS
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on Elections,
Committee on House Administration.............................. 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, Committee on
the Judiciary.................................................. 3
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, Committee on
the Judiciary.................................................. 9
The Honorable Kevin McCarthy, a Representative in Congress from
the State of California, and Ranking Member, Subcommittee on
Elections, Committee on House Administration................... 10
WITNESSES
Mr. Pedro A. Cortes, Secretary of the Commonwealth of
Pennsylvania, President, National Association of Secretaries of
State (NASS)
Oral Testimony................................................. 69
Prepared Statement............................................. 71
Mr. David M. Farrell, Deputy Assistant Secretary of State and
Director of Elections, Office of the Ohio Secretary of State
Oral Testimony................................................. 181
Prepared Statement............................................. 184
Mr. Rokey W. Suleman, General Registrar, Fairfax County Office of
Elections
Oral Testimony................................................. 187
Prepared Statement............................................. 190
Mr. Doug Lewis, Director, National Association of Election
Officials
Oral Testimony................................................. 193
Prepared Statement............................................. 195
Ms. Grace Chung Becker, Acting Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice
Oral Testimony................................................. 224
Prepared Statement............................................. 227
Mr. Paul F. Hancock, Partner, Kirkpatrick and Lockhart Preston
Gates and Ellis, LLP
Oral Testimony................................................. 236
Prepared Statement............................................. 238
Ms. Karen K. Narasaki, Executive Director, Asian American Justice
Center
Oral Testimony................................................. 245
Prepared Statement............................................. 246
Mr. Bryan P. O'Leary, Public Policy Consultant, Crowell Moring
Oral Testimony................................................. 265
Prepared Statement............................................. 277
Mr. James Terry, Chief Public Advocate, Consumers Rights League
Oral Testimony................................................. 286
Prepared Statement............................................. 287
Ms. Jocelyn Benson, Assistant Professor, Wayne State University
Law School
Oral Testimony................................................. 300
Prepared Statement............................................. 302
Ms. Kristen Clarke Avery, Co-Director, Political Participation
Group, NAACP Legal Defense Fund
Oral Testimony................................................. 311
Prepared Statement............................................. 313
APPENDIX
Material Submitted for the Hearing Record........................ 419
FEDERAL, STATE, AND LOCAL EFFORTS
TO PREPARE FOR THE 2008 ELECTION
----------
WEDNESDAY, SEPTEMBER 24, 2008
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary, and the
Subcommittee on Elections,
Committee on House Administration,
Washington, DC.
The Subcommittees met, pursuant to notice, at 10:20 a.m.,
in room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee on the Judicary)
presiding.
Present from the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties: Representatives Conyers, Nadler,
Lofgren, Davis of Alabama, Ellison, Watt, Cohen, Franks, Issa,
King, and Jordan.
Present from the Subcommittee on Elections: Lofgren,
Gonzalez, Davis of Alabama, Davis of California, McCarthy, and
Ehlers.
Also present: Representatives Waters and Delahunt.
Staff present from the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties: LaShawn Warren, Majority
Counsel; and Paul Taylor, Minority Counsel.
Staff present from the Subcommittee on Elections: Tom
Hicks, Majority Counsel; and Gineen Beach, Minority Counsel.
Mr. Conyers. Good morning. The Subcommittees will come to
order.
I have asked the Chairwoman of the Subcommittee on
Elections, Zoe Lofgren from California, to begin the
proceedings.
Ms. Lofgren. Thank you, Chairman Conyers.
I think this is an important, and really unprecedented,
joint hearing between the Elections Subcommittee of the House
Administration Committee and of course, the Constitution
Subcommittee of the Judiciary Committee.
I am honored to serve on both the Judiciary Committee and
Chair the Elections Subommittee allowing us to focus on really
one of the most important issues that faces our country, which
is to make sure that we have an election that makes sure that
individuals who are eligible to vote are able to vote, that our
American citizens come to the polls and are not
disenfranchised.
The election 4 years ago and 8 years ago left a very bad
taste in the mouths of Americans because there were people who
were not able to vote. They were disenfranchised. And if that
happens again--if half of America thinks that the election was
not fair, that people who had a right to vote were denied that
right--we are going to be in a real pickle in this country.
And so this hearing is to hear from election officials, but
also to make sure that we have the proper proactive effort to
make sure that people are not disenfranchised again.
Now, how can you be disenfranchised? In many different
ways. I actually personally spoke to people who waited 8 hours
to vote in a precinct in Ohio. If you have to wait 8 hours to
vote, you are disenfranchised.
Now, for students, their classes were canceled, so they
could stand in line. But if you are an employed person, you
can't take off 8 hours from work to vote. And you shouldn't
have to.
And so we know that if that happens again, Americans are
going to feel that something funny was going on with the
electoral process. And I expect that we will identify those
areas where problems are likely and proactively step forward
and say, this is the emergency effort you need to make. If you
need to have backup paper ballots so you can have your
registration people go along the line and check in those voters
and vote so they don't have to wait 8 hours, we need to plan
for that.
Equipment failures, voter registration lists, and I want to
talk about vote caging. When Monica Goodling appeared before
this Committee and talked about the Justice Department people
who took time off to do vote caging, and I remember saying,
``What is it?'' And I turned to another Member of the Judiciary
Committee, I said, ``What is that?'' And he didn't know,
either.
Well, it turns out, I have now learned, that it is a very
racist and I think illegal activity that is intended to
disenfranchise voters. What has happened around the country is
that registered letters have been sent in African-American or
other minority communities, and if they are not responded to,
then that person is identified as not a real voter.
Well, there is a lot of reasons why people might not want
to go down to the post office and pick up a registered letter.
And to allow for that kind of systematic suppression of
minority voting, I think, is a civil rights violation and I
think ought to be proactively prohibited.
Not only does it disenfranchise the American citizen who is
a voter, but the fight over this disenfranchises everybody else
who is waiting in line--so creating tremendous delay so that
people have to give up and go back to work.
This is so important for our country, that we get this
right. But I want to hear from the witnesses what they are
doing. This is not the end of what we are going to do. Tomorrow
the Elections Subcommittee is having a hearing on the
suppression of student votes that we have learned about, where
students have been told that if they actually register at their
campus, which they are permitted to, that they will have their
student aid removed. That is false. What are we doing as a
government to prevent that disenfranchisement?
So this is an important hearing, Mr. Chairman. I am glad to
participate in it, and I hope that the efforts that we will
make will have a positive impact on having a fair vote this
November.
And I yield back.
Mr. Conyers. Thank you so much for starting us off.
I am pleased to recognize Trent Franks, an outstanding
Member of House Judiciary Committee and Ranking Member on the
Constitution Subcommittee, from Arizona.
Mr. Franks. Well, thank you so much, Mr. Chairman.
Mr. Chairman, it has been said so often that voting is the
lifeblood of a democracy. And certainly there are no legitimate
leaders in a democracy without legitimate elections. And I
indeed look forward to hearing from our witnesses here today
regarding the good work that the voting section of the Civil
Rights Division has done and will do to protect voting rights.
And I am told they may have their hands rather full this
year. I say that because in recent years, one particular
organization has become increasingly embroiled in illegal
voting activity. That organization is called ACORN, which
stands for Association of Community Organizations for Reform
Now. Let me read that again: Association of Community
Organizations for Reform Now.
It seems that one very famous community organizer got that
in his resume by being an organizer for an association of
community organizations for reform now. Presidential candidate
Barack Obama is highlighted in this regard. ACORN is one of the
organizations he helped organize, as Senator Obama served as a
lawyer for Association of Community Organizations for Reform
Now.
Now, I think it is important to take a look at ACORN's
resume directly. And as you will hear, it almost sounds more
like a rap sheet these days. As John Fund of the Wall Street
Journal has reported, in Seattle local prosecutors indicted
seven workers for ACORN. Washington Secretary of State Sam Reed
once said, ACORN's campaign of phony registration forms is
``the worst case of voter registration fraud in history.'' And
of course he is speaking of Washington State.
But of the 2,000 names submitted by ACORN, only nine were
confirmed as valid. Out of 2,000, nine were confirmed as valid.
The rest, over 97 percent, were fake.
In Missouri, officials found that over 1,000 addresses
listed on voter registration lists resulting from ACORN's
efforts didn't exist. Eight ACORN employees pleaded guilty to
Federal election fraud there. In Ohio, a worker for one ACORN
affiliate was given crack cocaine in exchange for fraudulent
registrations that included underage voters and dead people.
And just a few weeks ago, ACORN curtailed more of its voter
registration activities in Ohio after election officials
announced that they were investigating its suspicious
activities there. ACORN workers repeatedly handed in the same
names on a number of voter registration cards that show that
person living at different addresses. Other times, cards have
the same name listed, but a different date of birth. Still
others showed a number of people living at an address that
turned out to be a restaurant.
In March of this year, Philadelphia officials accused ACORN
of filing fraudulent voter registrations in advance of the
April Pennsylvania primary. Also in Pennsylvania, another ACORN
worker recently questioned by Dauphin County investigators
about bogus voter registration forms, is now a wanted man with
regard for information leading to his capture. He is accused by
authorities of submitting more than 100 fraudulent voter
registration forms he collected and is charged with 19 counts
of perjury, making false statements, forgery and identity theft
in connection with the voter registration forms.
In February, the special investigations unit of Milwaukee,
Wisconsin, police department issued a report that concluded 18
people were sworn in as deputy registrars that were convicted
felons and under the department of corrections supervision. Of
the 15 felons who listed a sponsoring organization, eight named
ACORN--that is, Association of Community Organizations for
Reform Now--as their sponsoring agency.
And last month, the Milwaukee election commission announced
that criminal investigations could be launched against at least
six voter registration workers for ACORN who tried to add dead,
imprisoned or imaginary people to voter rolls.
And the Detroit Free Press just reported last week that,
``several municipal clerks across the state are reporting
fraudulent and duplicate voter registration applications, most
of them from ACORN.'' According to the Michigan Secretary of
State's office, ``there appears to be a sizable number of
duplicate and fraudulent applications and it appears to be
widespread.''
As one county clerk points out, trying to weed out all
these fraudulent registration cases causes a huge slowdown in
voting preparations and operations in general. As you can see,
Senator Obama could probably filibuster a bill to allow more
offshore drilling by simply reading ACORN's extensive rap sheet
on the Senate floor.
A recent article in The New York Times also revealed just
how shady ACORN's financial operations can be, as well. As The
New York Times reported, ACORN chose to treat the embezzlement
of nearly $1 million as an internal matter and did not even
notify its board. A whistleblower forced ACORN to disclose the
embezzlement, which involved the brother of the organization's
founder, who embezzled nearly $1 million from ACORN and
affiliated charitable organizations. But a small group of
executives decided not to alert law enforcement.
Senator Obama is still involved with ACORN, despite its
vast history of corrupting the election process and even its
own finances. As recently was reported in the Pittsburgh
Tribune Review: Senator Barack Obama's presidential campaign
paid more than $800,000 to an offshoot of ACORN for services
that the Democrat's campaign said they mistakenly
misrepresented in Federal reports. The Obama campaign initially
reported that the ACORN affiliate that received the $800,000
used all money for polling, advance work, and event staging.
But what did the ACORN affiliate really use the money for? It
used it for the same, ``get out the vote projects,'' that has
mired ACORN in criminal investigations in at least 12 states.
Now, I commend the voting section act of the Civil Rights
Division for the work its done to date. And I fully expect it
will prosecute voting violations that may occur before and
during the upcoming election. And with groups like ACORN
involved in this year's election, the Department of Justice may
well have to work overtime.
And Mr. Chairman, with that happy thought, I----
Ms. Lofgren. Would the gentleman yield----
Mr. Franks [continuing]. Our witnesses, and----
Ms. Lofgren. Would the gentleman yield for a question?
Mr. Franks. Certainly.
Ms. Lofgren. Because I would like to know, these 12 states,
what are the 12 states, and what--because this is news to me.
Mr. Franks. Well, I would be glad to follow up with you and
put that in writing. Would that be all right?
Ms. Lofgren. Well, I think you have made a rather
inflammatory statement that I believe is false.
Mr. Franks. We will----
Ms. Lofgren [continuing]. And I think you should be
prepared to----
Mr. Franks. We will follow that up and if I----
Ms. Lofgren. No. You can say the statement----
Mr. Franks. If I have made any statement that is false, I
will certainly be glad to correct it.
Ms. Lofgren. You just made a statement indicating--I would
ask unanimous consent that we place in the record a
communication from ACORN refuting all of your points. But it is
a defamatory statement to accuse a person of a crime. And if
you can't back it up----
Mr. Franks. Well, I quoted the Wall Street Journal and the
Pittsburgh newspapers. Perhaps we should call them in here and
see if they can straighten this out.
Ms. Lofgren. Well, I--I am appalled that you would make a
statement that you are unable to actually back up. And I thank
the gentleman for yielding.
Mr. Conyers. Does the gentlelady wish to put the
statement--article in the record, the ACORN?
Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Conyers. The Chair is pleased to call on the Chairman
of the Constitution Subcommittee in the Judiciary Committee,
Jerry Nadler of New York.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, the right to vote is the bulwark of all our
other rights. Without an effective franchise, all our other
rights are vulnerable. For that reason, the history of our
country has been one of fulfilling the promise of the
Declaration of Independence and the Constitution by
progressively extending the right to vote to all citizens.
That struggle has gone on for generations, but the struggle
to ensure that the legal right to vote translates into an
actual right to cast a ballot and have it counted remains far
from fulfilled, as we know. We know that people waited in Ohio,
for example, and probably in other places, 8, 9 hours to vote.
And they had their votes taken away from them.
We know that in 2000, the governor and the secretary of
state of Florida conspired to hire a private firm to purge the
voter lists, knowing that the error rate of that private firm
was 20 percent--meaning that they knew that 20 percent of the
voters whose names would be purged were perfectly legitimate
voters. And that even if they were purging people who had no
right to vote, they were also purging 20 percent--that is, 20
percent of those they were purging had a right to vote and
would be illegally disenfranchised by the deliberate acts of
the governor and secretary of state of Florida, and they got
away with it.
We know that these kinds of things go on all over the time.
We know that certain politicians engaging in inflammatory
campaign rhetoric of questionable relevancy, such as we just
heard about ACORN, in order to cover up the deprivation of the
right to vote of many people.
Now, let's take the case of ACORN for a moment. I am not
going to talk about any specifics, because I don't know about
any of the specifics. But let's assume that everything that was
said was true. What does that indicate? It indicates that law
enforcement ought to be looking into them and prosecuting,
perhaps and to--whatever.
It does not indicate, assuming that there is a group out
there that is deliberately or because they hired people who
don't know what they are doing, inadvertently improperly
registering voters--it means that the registrars of elections,
the boards of election, the department, whoever, should be
carefully monitoring that and checking the validity.
It does not mean that it justifies in any way all the vote
caging and the voter suppression practices and the purging of
legitimate voters that we know has gone on and that we are here
to deal with. And it is really a red herring to distract
attention from them. Certainly no one will justify anybody
deliberately or even inadvertently registering people who
should not be allowed to register--although most people should
be allowed to register, obviously, and a lot of this is simply
a problem with proper identification, especially with recent
laws.
But the fact is, the overwhelming problem is that
legitimate voters are being denied the right to register or
being denied the right to vote because of vote caging or
because of improper purging or because of inadequate resources
at the polls, or because of improper clerical procedures so
that your name isn't there when you get there to vote.
We saw, when the late congresswoman, our late colleague
Julia Carson went to vote, she was denied the right to vote
because her congressional ID was not sufficient voter ID under
Indiana's laws, which was absurd, obviously. We saw that the 12
nuns didn't have their identification because they didn't
drive. And we know that much of the effect of a lot of these
new laws is to deprive legitimate voters of their right to
vote.
So the question before us is how to make sure that
everyone's right to vote is secured and to minimize any fraud
or punitive fraud. And let me say one other thing here. We have
seen--and I am sure it will be--I shouldn't say I am sure,
perhaps it will be mentioned at this hearing--I have seen it in
New York, I have seen it alleged in New York, I have seen it
other places: if someone is registered in two places--they are
registered in New York and Florida, they are registered in two
different counties in New York, whatever--and this is evidence
of massive fraud. No, it isn't.
What it is, is evidence of is 20th century or 19th century
technology. That when you registered, let's say in New York
City, and you move to Miami, they don't necessarily remove your
voting card until a couple of years go by in New York. It
doesn't mean that you are voting in both places. That we have
not seen demonstrated. We have heard a lot of loose rhetoric
about people registered in two places. We have not a seen a lot
of facts about people voting in two places, which is a very
different question.
So I hope that we will concentrate on how to make sure that
people are enabled to cast their vote and have it counted when
they are entitled to do so. And that, it seems to me, we have
fallen badly down on the job. And when you can have a governor
and a secretary of state knowingly, deliberately, and
admittedly purge 20 percent of--that is, use a purge list which
they know and don't deny and freely admit is inaccurate 20
percent--and no one says, why don't we impeach the governor? No
one criticizes the governor, we just let it go by the board--it
shows that we do not regard voting rights with as much care as
we ought to.
I hope this hearing will go a long way towards--will go
some way toward changing that. I must apologize at this point.
I am going to have to leave fairly soon for a markup of the
Transportation Committee. In Congress they expect you to be in
two or three places at the same time. It is still difficult,
despite modern physics.
But I congratulate the Chairman of the Committee for
calling this hearing, because it is a necessary step in a
necessary battle.
I thank you, and I yield back.
Mr. Conyers. Thank you very much.
I am pleased now to recognize Kevin McCarthy, the Ranking
Member of the Elections Subcommittee of the House
Administration Committee. And we would like to invite you for
any opening remarks, sir.
Mr. McCarthy. Thank you, Mr. Chairman.
I appreciate you having this joint hearing today. You know,
we are like 41 days away from the election. And if I could
start, Mr. Chairman, I would ask unanimous consent to submit
some material to include in today's proceedings, and----
Mr. Conyers. Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. McCarthy. Part of this will probably answer some of the
questions of my colleague, Mrs. Lofgren.
This section right here is just from the Department of
Elections, State of Michigan--pertaining to ACORN, whereas some
of these applicants, 15 years old, 7 years old, lives in
Canada, but--could answer a lot of questions you had of my
colleague, Mr. Frank, as well.
But today this hearing and these panels really is something
House Administration has been looking at over the last 2 years.
We have had a contested election we have studied. We have gone
through looking at voter fraud.
We have also looked at--which I am very interested in
hearing in the second panel, Mr. O'Leary--also those who are
being denied their right to vote are Servicemen and women. You
will find today, and hopefully many will listen, that a number
of those votes are not counted. They arrived too late--these
are our brave men and women serving overseas. And I think when
you think about defending this country and the right to
participate in an election, we can actually do a lot more. We
can do a lot better. And we have 41 days to go.
We have had a hearing on a number of bills. One, the MVP
Act, I think will solve a lot of the problems as we look
forward.
But the hearing today, we will look at the voter fraud. We
will also look at the eligibility and making sure all of the
votes are counted and that those serving in other parts of this
world defending this Nation have the right to vote, as well.
And I thank you, Mr. Chairman. I yield back.
Mr. Conyers. Thank you very, very much.
We also have our good friend from the Judiciary Committee,
Jim Jordan of Ohio. Did you have any comments you would like to
make at this time, sir?
Mr. Jordan. No, thank you, Mr. Chairman. I will have some
questions later.
Mr. Conyers. All right. Very good.
And we also have Charles Gonzalez, distinguished Member
from Texas on the Elections Subcommittee. We would like to
welcome him here to Judiciary and ask if he has any comment.
Mr. Gonzalez. [OFF MIKE]
Mr. Conyers. Thank you very much.
We have some distinguished witnesses in the first panel:
Mr. Lewis, Mr. Suleman, Mr. Farrell, and Mr. Cortes.
Pedro Cortes is the current secretary of the Commonwealth
of Pennsylvania. He is also the chief election official and
president of the National Association of State Secretaries.
Before that he was executive director of the Pennsylvania
Governors' Advisory Commission on Latino Affairs and served
with the Pennsylvania State Civil Service.
We welcome you. All witnesses' testimony will be included
in the record. And we invite you to begin our discussion today.
Welcome to the Committee.
TESTIMONY OF PEDRO A. CORTES, SECRETARY OF THE COMMONWEALTH OF
PENNSYLVANIA, PRESIDENT, NATIONAL ASSOCIATION OF SECRETARIES OF
STATE (NASS)
Mr. Cortes. Thank you, Mr. Chairman.
Good morning, Chairman Conyers, Chairwoman Lofgren, Ranking
Member Franks, Chairman Nadler, Ranking Member McCarthy. I am
honored to be here today to testify in two capacities: as
Pennsylvania Secretary of State and chief election official;
and as president of the National Association of Secretaries of
State, also known as NASS.
I would like to discuss the states' readiness for the
November 2008 election, including efforts in Pennsylvania.
The Nation's state chief election officials have been
working hard to ensure eligible voters will have a positive
voting experience and an election that is fair, accurate,
accessible and secure. There has been a dramatic increase in
voter registration figures, and predictions of high turnout.
Nearly 58 million Americans voted in the 2008 presidential
primaries. I am here to report that state election officials
take their responsibilities seriously, and that the states will
be prepared for a potential record turnout in November.
NASS proactively conducted a survey of all states' chief
election officials. Our objective was to gain insight into the
states' efforts to inform and prepare voters, increase and
facilitate voter participation, ensure that polling places run
smoothly on Election Day, and communicate election results to
the public. The NASS report, which is being released today, is
titled, ``Engaging the Energized Electorate: NASS Survey on
State Preparations for the 2008 Presidential Election.'' I have
copies of that report available with me.
The survey responses demonstrated the states have
concentrated their preparations in three major areas: one,
voter participation; two, polling place management; and three,
election results reporting.
First, to enhance voter participation, states are
conducting vigorous statewide public outreach campaigns to
inform voters about everything from registration deadlines to
identification requirements and absentee or early voting
options. A growing number of states are using the internet and
social networking sites such as YouTube and MySpace. Many
states, including Pennsylvania, are also offering tools such as
polling place locators, voter registration lookups, and
provisional ballot trackers.
Others have targeted outreach efforts to mobilize young
voters, senior voters, voters with disabilities, military and
overseas civilian voters and alternative language voters, among
others.
The second area of preparation, polling place management
and operations, seeks to ensure the positive experience on
Election Day. Efforts in this area include broadening the pool
of potential poll workers by seeking students, bilingual
citizens, private sector and state employees; maintaining
consistency in poll worker training; and establishing standards
to provide assurance that poll workers are properly equipped to
administer voting, handle emergencies, and use election
systems.
Finally, states are enhancing election results reporting
features for 2008 while maintaining transparency to boost voter
confidence. This is done via new interactive Web sites and
through laws enacted for improving post-election audits and
audit procedures.
NASS also created CanIVote.org, the association's
nonpartisan Web site that serves as a portal to state and local
election sites. In addition to voter registration lookups and
polling place locators, voters can use the site to find state-
specific information on polling place hours, voter registration
deadlines, identification requirements and how to become a poll
worker.
In my home state of Pennsylvania, election officials remain
committed to eliminating barriers to voting and to conducting
fair, accurate, accessible and secure elections. The Department
of State, working closely with the Commonwealth's 67 counties,
is building upon the lessons of the primary to prepare for
November 4.
One way we are preparing in Pennsylvania is through the use
of technology. For example, the Commonwealth has benefited from
the Statewide Uniform Registry of Electors, more commonly known
as SURE. SURE is the centralized voter registration and
election management system used by the counties and the
department to ensure the accuracy and integrity of the
Commonwealth's voter registration records. All 67 counties have
used SURE since 2006. The innovative use of technology gives
counties increased flexibility for more employees to enter
voter registration data.
Pennsylvania also values voter education. The Department is
proud of Ready.Set.Vote, an interactive voter education
campaign that features television, radio, print, online and
out-of-home advertising. The campaign's goal is to ensure that
Pennsylvania voters are familiar with voting processes, rights
and technology.
An important component of this campaign is VotesPA.com, the
Commonwealth's online voting information and resource center.
Through VotesPA.com, Pennsylvanians can find information about
voting rights and procedures, locate directions to their
polling place, and may even sign up for election-related
reminders sent directly to their mobile devices.
In August, Pennsylvania adopted an innovative, secure
online tool offered by the Federal Voting Assistance Program at
the Department of Defense that provides military and overseas
citizen voters the option of requesting and/or receiving
absentee ballots electronically through the Federal program's
Web site. As of today 34 counties, including Philadelphia and
Allegheny, have availed themselves of this program.
These are only a few examples of the many election
initiatives underway in Pennsylvania and throughout the United
States. Based on these preparations, I am confident that the
Nation, including Pennsylvania, will be well prepared for the
general election and that we will have a well-informed
electorate.
On behalf of my colleagues at NASS, thank you for your
support in safeguarding our most fundamental right of
citizenship. I appreciate your invitation to testify today.
Thank you.
[The prepared statement of Mr. Cortes follows:]
Prepared Statement of Pedro A. Cortes
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Conyers. Thank you, sir. Did you want to put the report
\1\ in the record?
---------------------------------------------------------------------------
\1\ The NASS report printed in this hearing record is a revised
version of the original report referred to by the witness. The revised
version of the report was the electronic version of the file available
at the time of the printing of this hearing.
---------------------------------------------------------------------------
Mr. Cortes. If I may, I would like to do that, Mr.
Chairman.
Mr. Conyers. All right. Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Conyers. Now, this is a new report. Did it just come
out today or yesterday?
Mr. Cortes [continuing]. Today.
Mr. Conyers. Today. You are----
Mr. Cortes. The report is a survey of all the states, the
50 states and the District of Columbia, that reports on the
various steps that the states are taking to first, inform
voters about their rights and the rules of voting and engaging
those voters; second, ensuring that voters have a smooth and
fair experience at the polls on Election Day; and third, to
ensure a report on increased capabilities to accurately report
results on election night.
Mr. Conyers. Thank you.
The Deputy Assistant Secretary of State and the Director of
Elections for Ohio Secretary of State Jennifer Brunner is Mr.
David Farrell. We welcome you here today. You oversee the
election section, the campaign finance section, and the field
staff section. He was formerly a member of the Clark County
board of elections for 7 years, and the chairman of the board
for 3 years before that.
Welcome to this hearing.
TESTIMONY OF DAVID M. FARRELL, DEPUTY ASSISTANT SECRETARY OF
STATE AND DIRECTOR OF ELECTIONS, OFFICE OF THE OHIO SECRETARY
OF STATE
Mr. Farrell. Thank you.
Good morning, and thank you for the opportunity to offer
testimony on Ohio's state and local efforts to prepare for the
2008 general election.
The state of election system in Ohio has come a long way
since Secretary Brunner took office in January of 2007. Between
that time and now, Secretary Brunner has taken substantial
efforts to examine, strengthen and continually adjust and make
improvements to the elections system. Evidence of our successes
can be found by looking at Ohio's March primary election, where
we had a 46 percent turnout and over 500,000 absentee voters,
despite experiencing severe weather problems and other
emergencies.
Chair Lofgren, I would like to offer into the record the
March 2008 Ohio primary election report, which fully details
the significant advancements Ohio has made in its elections
system since Secretary Brunner came into office.\1\
---------------------------------------------------------------------------
\1\ The information referred to, because of its voluminous size, is
not being reprinted in this hearing but can be accessed at http://
www.sos.state.oh.us/SOS/elections/electResultsMain/
2008ElectionResults.aspx.
---------------------------------------------------------------------------
Mr. Conyers. Without objection, so ordered.
Mr. Farrell. Thank you.
With November 4 approaching, there is great work to do in
Ohio in every county, and we are getting that work done. This
will be a historic November election, and in Ohio, where we can
realistically anticipate a statewide turnout of 80 percent,
Secretary Brunner has focused on three objectives: preparation,
partnership and success.
Secretary Brunner is focused on strengthening Ohio's voter
operations, which is the nuts and bolts of elections
administration. She understands that given the technological
advances made over the last decade and the implementation of
the Help America Vote Act of 2002, also known as HAVA, getting
voter operations right is crucial. She has made great strides
in this respect.
For example, to equitably apply Ohio's elections laws to
all voters, Secretary Brunner implemented an aggressive
statewide poll worker training program, which includes an
interactive, online poll worker training component. She created
and made available a quick reference guide for all poll workers
to use on Election Day. Secretary Brunner also issued a
directive which provides minimum standards for poll worker
training for all counties.
In addition, Secretary Brunner made compliance with the
Americans with Disabilities Act of 1990 a priority for all
Ohioans. While the Act has been law for 28 years, Secretary
Brunner was the first chief elections officer of the State of
Ohio to provide the 88 county boards of elections with an easy-
to-use checklist that permits local boards to confirm their
compliance. We thank Congress for providing ADA grant dollars
to Ohio and allowing us to make available $500,000 in funds to
address ADA concerns at polling places in 2008.
Secretary Brunner and local boards of elections are also
preparing for any problems that may arise on or before Election
Day. In 2004, Ohio became the unfortunate poster child for long
lines at polls and concerns about voter disenfranchisement.
Secretary Brunner has taken a number of steps to address long
lines and a host of other issues that cut to the core of voter
confidence in our elections.
First, a key ``best practice'' focus has been backup paper
ballots for counties using direct recording electronic voting
machines, also known as DREs. In the March primary election,
these backup paper ballots made the difference for polling
places impacted by severe weather, power outages, and machine
problems. Secretary Brunner was very supportive of Chair
Lofgren's bill, H.R. 5803, which would have provided funding
for states to provide backup paper ballots. Although that bill
did not pass, in Ohio we will utilize HAVA funds to reimburse
boards of elections for the cost of backup paper ballots equal
to 25 percent of the turnout in that precinct in 2004 for this
November 4 election.
Second, we have also provided boards of elections with a
formula, developed by the Ohio General Assembly and based on
HAVA, for the equitable distribution of voting machines on
Election Day. This will help us find problems with distribution
plans ahead of time and assure a scientific, facts-based
approach to allocating voting machines for Ohioans.
Secretary Brunner's preparation efforts also include making
sure that voting is secure. This spring, our office brought
together a bipartisan working group to craft best practices for
election security. From the board of elections office to the
ballot box and back again, we have created a suite of
directives that provide ``best-in-class'' security for Ohio's
voting systems.
Those directives include security at the polling place and
board of elections offices; minimum storage; security access
and inventory control requirements for voting systems equipment
at boards of elections; voting machine delivery requirements;
chain of custody for ballots; and security for voting equipment
supplies.
Secretary Brunner also required boards of elections to end
the practice of so-called ``sleepovers'' for voting machines in
Ohio, and we are now phasing in secure machine transport for
every county in Ohio.
Between now and November 4, we in Ohio will all be focused
on preparing for success. We are confident that state and local
election officials can address any new set of problems that may
arise because we have established a partnership that works to
get things done.
Thank you.
[The prepared statement of Mr. Farrell follows:]
Prepared Statement of David M. Farrell
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Conyers. Thank you very much.
Mr. Rokey Suleman, recently appointed to be the Fairfax
County Registrar----
Mr. Suleman. Thank you, Mr. Chair----
Mr. Conyers [continuing]. In Virginia--I have got a lot
more to tell about you.
Mr. Suleman. Okay.
Mr. Conyers [continuing]. Prior to your appointment as
deputy director of the board of elections in Trumbell County,
Ohio. And while there, Mr. Suleman took part in the Everest
Voting System Review, which is an assessment of the security of
Ohio's voting systems, and led the transition from punch cards
to optical scan and direct record electronic combination
systems in Trumbell County.
We are glad to have you here this morning.
TESTIMONY OF ROKEY W. SULEMAN, GENERAL REGISTRAR, FAIRFAX
COUNTY OFFICE OF ELECTIONS
Mr. Suleman. Thank you, Mr. Chair, and distinguished
Members of the Committee.
My name is Rokey Suleman, II. I am the general registrar of
the Fairfax County Office of Elections in Fairfax, Virginia. I
am pleased to be here this morning to discuss election
preparation for the 2008 general election at the local level.
The 2008 general election is not a single national event.
Rather, it is the simultaneous occurrence of thousands of
smaller, local events. I am here to discuss the preparations of
one of those local events.
Fairfax County is the largest election jurisdiction in the
Commonwealth of Virginia. We serve one in seven of all of the
registered voters in the Commonwealth.
Preparations for an election like this do not happen
overnight. Fairfax County has been planning for the 2008
general election for several years. As a matter of fact, we are
already making plans toward the governor's race in 2009,
redistricting in 2011, and the 2012 presidential election.
Part of the difficulty for preparing for an election such
as this is the increase in new voter registrations. Our office
has processed nearly 69,000 registration applications since our
February presidential primary. We have registered nearly 41,000
new voters and updated or transferred into our county nearly
28,000 registrations.
The office has also transferred over 19,000 voters to other
jurisdictions in the state and removed 2,500 deceased voters
from the rolls. By the time of the October 6th registration
deadline, our office will have handled nearly 20 percent of all
of our registration cards in the period between the primary and
general election.
Some of this registration activity is taking place by
college students. There has been much debate in Virginia as to
a student's resident status when they are at a university. It
is the opinion of this office that if the student chooses to
list their school residence as their primary residence, they
may do so. They are attesting to this under penalty of perjury,
so we take the application at its face.
If we have reason to believe that someone does not live at
the address in which they are registered, we will make an
inquiry.
This election will not only see record registration, but
record turnout for our county. In the 2004 general election,
Fairfax County saw 467,000 out of 633,000 registered voters
participate in the process--a 73 percent turnout. This
November, we are expecting nearly 80 percent of our expected
665,000 registered voters to cast a ballot.
Increases in registration and participation strain the
resources of our system. We are expecting long lines at the
polls this November. Fairfax County averages 3,000 voters in a
precinct. We are telling folks now to expect the lines. They
will exist. We are also taking steps to process voters in an
expedited fashion.
Virginia passed a ban against acquiring direct-recording
electronics, also known as DRE equipment, in 2007. Knowing that
our county had an inadequate number of voting machines and
weren't able to acquire more, the decision was made to add
optical scan ballots to the polls this November.
Fairfax County purchased optical scan equipment in July.
Our county has ordered enough paper ballots to serve over 103
percent of our voter population this November. Voters will be
given a paper ballot, but may vote on DRE equipment if they so
choose. We believe that we will be able to process voters
faster with the optical scan equipment, thus reducing wait
times.
This process does not come without significant planning and
expense. Solving the pressure of lines is not as easy as adding
optical scan machines for jurisdictions. Everything that is
crucial to operate an optical scan system needed to be
purchased. Our county did not have privacy booths to fill out
the ballots, so we purchased as many as we could, and then we
purchased clipboards to mark ballots on if voters do not want
to wait for a privacy booth.
We had to purchase secrecy sleeves to hold the ballot
before insertion in the machine, ballot boxes to hold the
expected number of ballots, ink pens to mark the ballots,
security seals to secure machines, boxes and locate a storage
facility large enough to store the used and unused ballots for
the required 22 months. We have back-up equipment and batteries
in case of machine failure.
Should a polling place become unavailable due to emergency
during the day, we have equipment standing by to open up a
secondary location within 1 hour. This implementation increased
my budget approximately 25 percent this year.
Another policy the county has instituted to complement the
optical scan system is the division of poll books. Normally,
precincts would have one to three poll books to serve voters,
with splits dependent on the precinct's size. This November our
precincts will have two to five poll book splits. More splits
allow us to divide the incoming groups of voters and process
them faster. This, coupled with the paper ballot, should help
ease the pressure of turnout.
Dividing the poll books also requires poll workers to man
the tables. In 2004 we utilized 2,516 poll workers. This
election, we are expecting to use almost 3,100--a 20 percent
increase. Recruiting and training these volunteers takes time
and money. We are expecting to hold over 70 training classes in
30 days. We have to train our folks on how to use the new
equipment, reinforce training on the older equipment, and help
them manage the turnout. Our poll workers must learn how to be
technicians, legal experts and customer service specialists--
all from a 3-hour class that some people may take 35 days
before the election.
Fairfax County is also encouraging the use of absentee
voting this election. Although Virginia has one of the most
restrictive absentee ballot requirements in the country, we
expect a record amount of absentee ballots. In 2004, almost
54,000 people voted absentee. As of this Saturday, we had over
17,000 absentee ballot applications, and nearly 250 people
voted on the first day of in-person absentee voting this
Friday. We are utilizing email ballots so that our overseas
civilian and military voters receive their ballots faster.
Adding to the complexity of the election is the electorate
of Fairfax County. There are numerous languages spoken here
among our citizens. Although we do not meet the threshold under
the Voting Rights Act requiring the availability of a minority
language ballot, we are offering several services to our
voters. We have native Spanish and Korean speakers on staff, as
well as staff trained in American Sign Language. At the polls
we offer a telephone translation service with over 100
available languages. Each polling location will have a video
demonstration of our new voting equipment and in precincts with
a high concentration of Hispanic, Korean or Vietnamese voters,
the video will be offered in both languages.
All of this comes at an added expense to our office. Staff
are now working 7 days a week processing registrations and
absentee applications. Seventy-hour work weeks are not
uncommon. As we get closer to November, these days get longer.
Voters call to inquire about polling locations, registration
issues, ballot problems and general information. Voters will
even call our office to find out where to pick up a sign for a
candidate. Second shifts are added just to process paperwork
that accumulates during the day. Our staff now consists of our
normal contingent of 25 full-time employees and 56 temporary-
seasonal staff, with more arriving next week.
The long hours are necessary because we do not have the
luxury of flexible deadlines. No matter the level of work, it
all must be completed in time for November 4. Election
officials are expected to be 100 percent accurate in their
work, and mistakes have the potential to disenfranchise a
voter. We take that responsibility very seriously. Not only
that, but it seems that everyone now has teams of lawyers
waiting to pounce if the smallest mistake is made. This only
adds to the level of stress.
I do want to take this time to thank and commend my staff.
The workload grows and grows, yet staffing levels remain
stagnant. Laws become more complex and require more service,
yet local budgets feel revenue constraints. We do not have
everything that I would like to run an election, but we will be
successful. Staff know that time spent at home will suffer. We
joke that our families should place our pictures on milk
cartons. But they still have smiles on their faces. They truly
love to serve the voters, and although we are incredibly busy,
we are excited to see all of the participation.
All of this effort occurs so that the voter has as little
difficulty participating as possible. It is difficult to ask
the entire Nation to do the same thing on the same day. It
takes months of planning that 1 day so the voter has the
ability to arrive at their polling location and participate in
our most basic and most important part of a democracy.
Thank you for the invitation to speak today.
[The prepared statement of Mr. Suleman follows:]
Prepared Statement of Rokey W. Suleman
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Conyers. Thank you very much.
The executive director of the Elections Center is Mr. Doug
Lewis. It is a non-profit organization of election officials
that trains, informs and advocates for the election
administration community.
We would love to hear what you make of all of this today,
Mr. Lewis. Welcome.
TESTIMONY OF DOUG LEWIS, DIRECTOR,
NATIONAL ASSOCIATION OF ELECTION OFFICIALS
Mr. Lewis. Congressman, thank you.
My name is Doug Lewis. Obviously, I am not going to get
through eight pages of testimony in 5 minutes.
Mr. Conyers. How about you turn on your microphone?
Mr. Lewis [continuing]. Try to read all of it.
Mr. Conyers. Okay. Turn on your microphone.
Mr. Lewis. I will point to some parts of it so that
hopefully you all will be able to see the kind of preparation
that is going on in America for elections. There isn't an
election official anywhere in America that wants voters to have
a bad experience. There isn't an election official anywhere in
America that wants voters to wait in long lines.
And yet the fact of the matter is, we are going to be hit
with a tsunami this time. We are going to have waves of voters
that we have not been able to see in our working lifetime.
I guess mine is not on or I am not speaking right into it.
Okay.
I come from Texas. We just had a big hurricane blow through
there. This is one election year where we don't like Ike. And
when you look at what happened to Galveston, who did all kinds
of preparations for a big hurricane, expecting 12-foot waves
and they got, you know, 15 to 25-foot waves--they were
overwhelmed. We may very well be overwhelmed in this election.
We are going to try to do the best we can.
We didn't start planning for this election in 2008; we
started in 2001, and 2002, and 2004, 2006--with all of the
things that we saw happened in each one of those. We have been
working on what is--strange as it may seem--is planning for
failure. Where are the failure points that can happen in an
election? How do we make this a good experience? How do we make
this work for voters?
Well, when you look at that--this is a pretty complex
system, folks. You know, we are going to have, according to--I
just looked up what the Census Bureau says are voting-
population--that is 227 million people of voting-age
population. In 2004, we had 178 million of those as registered
voters. We are expecting a huge increase over that for this
time.
In 2004, there were 122 million voters. We were swamped in
2004. We are going to have more voters this time, we think, by
a significant number. And so we are looking at that.
You have got roughly 7,500 election jurisdictions in
America scattered over counties and townships, depending on how
they run elections, in America. There are roughly 800,000
voting devices. There is somewhat less than 200,000 polling
places, 1.4 million poll workers, and roughly 19,000 people who
at least derive part of their income from running elections for
their jurisdiction.
When you look at that, the numbers are just staggering in
terms of what we can do. If you look at the average number of
voters having to be handled by the full-time employees like
Rokey and even Secretary Cortes, you are looking at maybe a
ratio of one employee to every 6,200 voters. There is no
business that operates like that in America. There is no
enterprise that operates like that in America.
On Election Day, we are going to put the equivalent of
several divisions of several armies in the field with two to
three hours of training who are supposed to make things come
off flawlessly. It can't happen. It will sometimes not be
perfect. But perfect is not what we are after here. What we are
after is an honest, fair, and accurate election.
And we need to remember that--that when all is said and
done, the important part is, is the result an accurate
reflection of the public will? And we think that is where if
folks will focus on what the end objective is and not on the
hiccups that may occur, then we will end up with a good
election in America.
You know, I have to tell you, I am concerned about this.
When you look at the fact that we have, because the economy is
doing a dipsy-doodle--we have county commissions and we have
local budget authorities all over America who are cutting
budgets in elections offices when we are expecting the largest
election in our lifetime.
So elections officials are having to do more with less. And
as I think Rokey pointed out, my goodness--his jurisdiction
alone has grown enormously over the last 20 years, and yet I am
going to guess that his staffing level is probably the same or
less than it was 20 years ago.
This is what we are faced with when you look at this
election. We want it to be a good experience. We want it to be
a good election. But I am going to say to all of you, we are
also at the point where we have had so many allegations made
about the process, that I am not sure we are not doing
permanent damage to the process. We have to get to the point
where we understand the process is more important than
partisanship. And we have to remember that. Because we lose
partisanship if we lose the process.
I would say to you that we are very concerned that we do
this election, that we do it well, that we do it well for
voters, that we make it a good experience for the voters, that
voters are happy--and we have some suggestions for that.
In terms of what we think can happen this time, we
certainly would encourage voters to be at the point of where
they check their official registration. Make sure you are on
the voter rolls. Make sure you have done what you need to do.
Make sure you know where your polling place is. The truth of
the matter is, is on Election Day, we are not going to be able
to answer all those calls that come in that want to know where
their polling place is. Voters need to know beforehand where
their polling place is, and this will help this be a good, and
smooth, and wonderful election.
Thank you, sir.
[The prepared statement of Mr. Lewis follows:]
Prepared Statement of Doug Lewis
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Conyers. Thank you for your sobering comments, Mr.
Lewis.
Let's begin our discussion with Chairwoman Zoe Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
And I have just a few questions. First, Mr. Farrell, I was
pleased to hear of the efforts that Secretary Brunner has made
to prepare for this huge election in Ohio, and also let her
know how much I appreciated her support of the backup paper
ballot bill that failed, really, on the House floor. Which I
thought was a shame.
But certainly jurisdictions have the legal ability to spend
HAVA money to get additional paper ballots in case of an
emergency. And the emergency could be anything from machine
failure to you got a huge line--that is really disenfranchise
people.
Are you--and I will ask the same of Pennsylvania and
Fairfax County--are your jurisdictions prepared with the backup
paper ballot if you are overwhelmed just with the sheer numbers
of people showing up, do you think?
Mr. Farrell. Yes, we believe we are. We have issued
instructions for polling place layouts which hopefully will
guide boards on how to lay out the polling place so that there
is clearly two options for voters. So that in a scenario where
it just happens to be a huge turnout and folks normally would
just have the choice of one line for a touch-screen voting
machine, they now clearly have the option of voting a paper
ballot.
Ms. Lofgren. Unless if they want to wait in line, they can
do that, but the choice is theirs.
Mr. Farrell. Exactly.
In addition to that, I had mentioned poll worker training
materials, which incorporates this. Most elections are only as
good as the people on the front lines. So we have invested a
lot of time and technology in preparing them for this
particular type of layout in polling places.
And we have given, to local county boards of election, some
flexibility on how they lay that out. As I mentioned on the
primary, just through fate we had power outages, flooding, ice
storms, and some counties in the primary found that paper
ballots did save the day in extreme circumstances.
Well, heading into 80 percent turnout for this fall, it
could be that even without a power outage, these could be an
extreme circumstance when it comes to long lines.
Ms. Lofgren. What about Pennsylvania?
Mr. Cortes. Madame Chair, I am glad to report that
Pennsylvania has taken similar steps to prepare our voters.
We find that there are two necessary components to a good
election experience. First, you have to have a well informed
and prepared voter. As Mr. Lewis noted, you have to confirm
that you are registered. Where is your polling place, how do I
get there? If I am a first-time voter, is there an ID
requirement? Know the rights of provisional ballots and such.
The second component is to make sure that the poll workers
are properly prepared. We find that in Pennsylvania many times
our issues related to long lines are not related to
deficiencies with the equipment. They may have to do with an
inefficient way of registering voters or checking them in at
the polls. We are encouraging, and we are glad to say that most
of our counties are going to be, splitting their poll books to
have a line for, let's say, voters with the last name A through
L, and then another one M through Z.
Pennsylvania law, however, does provide that in order for a
jurisdiction, a polling place, with direct reporting electronic
machines to be able to hand out an emergency paper backup
ballots, you have to have--all systems that are present in that
jurisdiction to be down or inoperable. Which means that the
fact that you have a long line does not give us the legal
authority to just simply hand out ballots.
But again, measures are being taken in terms of
preparation, in terms of proper training, to minimize the
chances that we will have long lines. We are also trying to
manage the expectations on the part of the voters, reminding
voters that you are usually more likely to find long lines when
we open the polling place at 7 a.m., from 7 say until 9, and
then when we are closing the polls, between 5 and 8.
And to the extent voters are able to modify their
calendars, we encourage them to do so.
Ms. Lofgren. All right.
And Fairfax County, I think we are going to have just an
enormous turnout in Fairfax County, from what I am--you are on
the field, but--is 103 percent going to be enough?
Mr. Suleman. Yes, we do believe that 103 percent of the
paper ballots will certainly be enough. We figured that 103
percent on a number that was 4 percent larger than the actual
number of registered voters that we have.
Ms. Lofgren. What about distribution? Because in the
primary in some states--for example, my county in California--
we had such a huge turnout in the northern part of the county
that I live in that they ran out of ballots. And they had to
get ballots in other places, it was chaotic.
The county did their very best, but in retrospect, talking
to the county officials, they wished that they had spent a
little bit--I mean, I was in local government for 14 years. It
is hard financially, but it would have been cheaper for them to
actually proactively provide more ballots than what they ended
up spending on Election Day, because they were just caught
short.
And so moving around within the county, you know, I think
there is a level of excitement in your county about this
election that is really stunning.
Mr. Suleman. There certainly is. And again, we based our
103 percent on a number that was higher than the actual number
of registered voters that we have. I recommend that every
jurisdiction purchase over 100 percent of ballots, paper
ballots, for their----
Ms. Lofgren. For that----
Mr. Suleman [continuing]. For that reason.
Local governments were under serious budget constraints.
Ms. Lofgren. I know that.
Mr. Suleman. And it is odd to--when you are deciding how to
purchase paper ballots--well, if you only have 70 percent
turnout, why did you buy 100 percent? You wasted that money. If
you only had 60 percent turnout, why did you buy 100 percent?
Ms. Lofgren. I understand.
Mr. Suleman. You wasted that money.
Ms. Lofgren. Been there, done that. But--you can use HAVA
money for this.
Mr. Suleman. Yes, yes. And, we know, we are going to look
into that. But with the local government, we just figure that,
it is my opinion that this is one point where you can blame
waste on the taxpayer. Because we have to prepare for every
voter to show up. And if a voter would call us and say, I am
not going to vote on Tuesday, don't buy my ballot, we would be
happy to do that. But we have to assume that they are going to
show up.
So we have enough ballots if somebody makes a mistake on
their ballot, they can get a second ballot. And we believe we
are going to be well prepared for this record turnout.
Ms. Lofgren. Could I just ask one final question. We are
going to have a hearing on this tomorrow in the House
Administration Committee, but we have all read about problems
with voter registration--I think it was Virginia Tech--but I
mean, students are reading this, and if you come from a state
where you can't do, by right, absentee voting, the only way you
are going to be able to vote on Election Day is if you register
where you are at college.
What proactive steps are being taken by the registrars in
Virginia to correct the misinformation that students whose
residence is at their college are going to lose their student
loans if they register and vote?
Mr. Suleman. I believe the State Board of Elections has put
out some press releases to all the universities stating that
you are allowed to register from your dorm. If that is your
residence, that is your domicile in the state of Virginia, then
you are allowed to register from that point.
There was some misinformation being bandied about across
the state by some registrars, who I believe were just being
well-meaning and trying to be----
Ms. Lofgren. I am not suggesting there was a----
Mr. Suleman. No.
Ms. Lofgren [continuing]. There was a wrong intention,
but----
Ms. Lofgren [continuing]. Wrong information----
Mr. Suleman. There was misinformation. I believe they were
just trying to be good moms and dads when they are looking out
for the students. And I believe the State Board has taken the
lead on that and notified all the colleges so as to rectify
that problem.
Ms. Lofgren. Thank you, Mr. Chairman.
Mr. Conyers. I see we have been joined by Vern Ehlers from
Grand Rapids, MI, the Ranking Member on the House
Administration Committee.
Welcome, sir.
I turn now to Trent Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, I know that in election seasons, sometimes
there are partisan considerations and comments on both sides,
and I certainly don't deny that I am a partisan Republican. But
I always want to make sure that everything I say is absolutely
accurate. And just to respond to one of the questions earlier
related to ACORN, I just wanted to briefly say that in 2008
alone, ACORN's activities have prompted calls for investigation
in Louisiana, Connecticut, New Mexico, Texas, Nevada and North
Carolina.
Now, in my opening testimony, I cited public newspaper
reports recounting specific ACORN-related criminal activity in
Washington, Missouri, Ohio, Pennsylvania, Wisconsin and
Michigan. Now, those reports concern the last few years alone.
The number of 12 states is cited in the Pittsburgh Tribune
Review, specifically adding Colorado to that list. And other
examples are cited in John Fund's article in the Wall Street
Journal and his new book--it is called ``Stealing Elections,''
and it certainly will be discussed in the second panel.
As I say in my opening statement, I simply focused on the
public reports in the last--in six states as they occurred in
the last few years. But I would be very happy to see a hearing
exploring ACORN activities over the last 10 or 20 years across
the Nation. And if that hearing suggests that I have overstated
anything, I would be more than happy to apologize publicly to
the Committee and to Ms. Lofgren. But I am afraid that it would
only show that I understated the situation, far more than
overstated it.
So with that said, my question is first I guess to Mr.
Lewis, and I will give the others an opportunity.
In Seattle, both the prosecutors indicted seven workers for
ACORN that in the last year had registered more than 540,000
low income and minority voters nationwide and employed more
than 4,000 get-out-the-vote workers. The ACORN defendants stand
accused of submitting phony forms in what Secretary of State
Sam Reed says is, ``the worst case of voter registration fraud
in the history of the state.
Given that the state doesn't require the showing of any
identification before voting, it is entirely possible people
could have illegally voted using those names. Local officials
invalidated 1,762 ACORN registrations. Felony charges were
filed against seven of its workers, some who already have
criminal records. And prosecutors say ACORN's oversight of its
workers was virtually non-existent. To avoid prosecution, ACORN
agrees to pay $25,000 of restitution.
Mr. Lewis, I think that you have at least expressed a tone
of wanting to make sure that our elections are honest, and I
believe that. Do these reports concern you at all, however?
Mr. Lewis. I don't know specifics about the one that you
are talking about. And certainly I know that Sam Reed is one of
those who is not prone to overstatement.
But let me say to you--we are concerned from an
administrative standpoint about third-party registrations
altogether. We like them. We want them. They do a good job in
many cases of bringing people into the process, and that is
always healthy for democracy.
But this unfettered, unbounded, unregulated use of third-
party registrations, the point of where they sit on those
registrations right until the end and try to turn them all in
at the very last minute--it just screws up the system. It
disenfranchises voters. It is one of those things that just is
frustrating to us as elections officials.
That voter that was solicited by a third-party registration
outfit may have signed up with them 6 weeks ago, 8 weeks ago,
12 weeks ago, and yet that card hadn't been turned in to the
election official. When these kinds of occurrences go on, we
hope that they will be turned in within 3 days. If they are
turned in within 3 days of contacting the voter, then we have a
chance to get them on the roll. And if there is more
information that is needed, to be able to get that information
back in time so they vote a legitimate ballot, they vote a real
ballot, not a provisional ballot.
And so those are our real concerns----
Mr. Franks. Let me follow up with one last question. Mr.
Obama has sued on behalf of ACORN. ACORN later invited Mr.
Obama to help train its staff. Mr. Obama would also sit on the
board of the Woods Fund for Chicago, which gives funds to
ACORN. And its registration efforts, of course, have been
scandal-prone.
In St. Louis, Missouri, officials found that in 2006 over
1,000 addresses listed on its registrations didn't even exist.
Later, Federal authorities indicted eight of the group's local
workers, and one, of course, has already pleaded guilty. That
has got to concern you too, as well--correct?
Mr. Lewis. We are always concerned, as elections
administrators, that elections not only have real integrity,
but also have the appearance of integrity. Because for voters,
when they begin to perceive that the process is too loose or
that it doesn't adequately protect the system altogether, then
they lose faith in it, too.
But the truth of the matter is, how do we, as elections
officials--other than with our limited resources and the
limited amount of time that is allowed to us--how do we find
out about most of these? Well, we only find out about them,
quite frankly, if they occur in the normal course of business
and we have the resources to be able to do that.
Mr. Franks. Thank you.
And thank you, Mr. Chairman.
Mr. Conyers. Thank you very much. Now I would like to
recognize Mr. Charles Gonzalez of Texas.
Mr. Gonzalez. Thank you very much, Mr. Chairman.
Let me pose--well first of all, I think the most obvious
observation from this side--it is refreshing to hear someone on
the other side of the aisle calling for more oversight and
regulation. May be too late and it may be the wrong subject,
but regardless.
I am going to ask the same question of the individuals that
have testified, and that is, so that we walk away with here
something that is relevant to the hearing today: what is the
number one challenge that you identify as being the greatest to
you in conducting a successful election, knowing the increased
numbers on November 4 and prior to?
And what are you asking us to do to assist you?
And I will start off with Secretary Cortes.
Mr. Cortes. Thank you, Congressman.
The biggest challenge that the states are going to face is
the large number of voters who are registering and will
participate. In terms of the registration, as it was noted, it
is processing those applications in a timely fashion. I know
that in Pennsylvania, many of my colleagues have taken the
steps necessary to communicate with any group that is doing
third-party voter registration to ensure those applications are
turned into the voter registration offices as quickly as
possible.
But the bottom line is preparation, preparation on the part
of that voter. One of the main messages that I am taking out to
all Pennsylvanians is: if you are registered, no matter which
way you do so--third party, online, in person--you should be
receiving within 2 weeks, 14 days of that registration, a
confirmation from your county that says you are registered, and
where you vote. Preparation on the part of the voter alleviates
many of the issues that we face on Election Day.
So I would like to take that message of preparation. How
can you help us? Financial resources are always needed. It was
noted here already, very eloquently, by the registrar from
Virginia that we are in a situation where we don't have enough
financial resources. And to that you can add human resources,
which oftentimes will require money to bring in.
So you can help us with resources. You can also help us by
understanding, as Mr. Lewis noted, that it is a complex
process, and that we have gone through a number of reforms
since 2000, which I support and are very needed. Give us time
to work through those reforms before we enact even more on top
of those, because that creates frustration on the part of
election administrators.
Mr. Gonzalez. Mr. Farrell?
Mr. Farrell. Well, this won't be the first time you have
heard this, but our number one challenge is funding. And it
specifically relates to the machines themselves. The new
machines do wear out more quickly than the old-style levers
did. In Ohio we conducted a study and found there were some
serious deficiencies in the voting machines. But with no
funding, there was no way to replace those, which is why we
implemented a plethora of security practices and procedures and
chain of custody and other items to try and offset that.
But even that required local boards to, unfortunately,
spend more of their funds to make sure these machines--that
they had enough, that they also were operating properly.
And the other challenge is training. And as you heard, on
the front lines are these poll workers with the ID requirements
and trying to make sure that everything is followed properly.
And training costs money, as well. So funding would be Ohio's
number one priority.
Mr. Gonzalez. Thank you.
Mr. Suleman?
Mr. Suleman. To sound like a broken record, it is funding.
I have got a litany of issues that I could correct in my office
with a much better funding mechanism. We were very proactive
with our voters this year and sent each voter a new voter
registration card to let them know their polling location and
to give them an updated voter ID to bring to the polls so that
would ease along the process. And that alone cost $300,000 that
we haven't been able to replace in our budget.
I could have better poll worker training. In Ohio, I had
one of the first counties that went online poll worker
training. And I don't have the resources to do that in
Virginia. I am not an educator, but I am charged with training
my poll workers. I don't know how well they are learning. If I
had the software package, I could track their learning, see
where their problems are, and change my policies and
procedures.
Funding to purchase more privacy booths to allow more
voters to vote paper ballots will move the lines along. Funding
solves the majority of our problems.
Mr. Gonzalez. And Mr. Lewis?
Mr. Lewis. At the risk of earning the enmity of my
colleagues here, funding is only a part of this. We are at the
point where practices and procedures and training issues are
indeed key to this process. But we keep changing the process,
faster than we can adapt to it.
And we have had, since the Help America Vote Act, states
and locales and administrative decisions, legislative decisions
by state legislatures, that we keep changing and changing and
changing. You are not going to have good elections as long as
we continue to force the pace of change at such a rapid pace
that we can never get to the point that it is stable.
And so it seems to me that we have to start taking an
attitude that we want a certain kind of end result in the
process, without trying to Band-Aid each of the pieces. We need
to look at, how do we do this as an overall process to make
sure it truly works for voters?
That is indeed probably going to cost more money in some
respects. But our concern right now is that if we don't stop
the pace of change, if we don't stop this constant assumption
that we can manipulate each and every part--of all of the
processes, we are going to be in for real trouble. Because this
system is close enough now to where we have overwhelmed it. We
are at a point now where in my testimony I pointed--we have had
about half the people in this business retire, because they
have gone through all of this accelerated pace of change.
We need time. We need time and stability and then,
obviously, the answer is we also need money. But local
jurisdictions--you know, I don't know what the right answer is
here. But if you are a county commissioner and you have got too
many competing goods for available dollars, what do you do?
And yet at the same time, we are on the receiving end of
that as elections administrators. We have got more and more
voters coming in every election cycle, and yet we are asked to
do with less and less. And this is a recipe for disaster long-
term.
Mr. Gonzalez. Thank you very much.
And each of you, thank you for your service.
Yield back, Mr. Chairman. Thank you.
Mr. Conyers. Thank you.
Mr. Kevin McCarthy, Ranking on the Elections Subcommittee?
Mr. McCarthy. Thank you, Mr. Chairman.
I thank all of you for your service and work you are doing.
You have to do a lot of preparation, and I don't know if it is
coincidence or on-purpose, but we have Pennsylvania, Ohio,
Virginia--you are all battleground states. So you have got a
lot of work before you.
I have a few questions. Mr. Cortes, if I could start with
you. You are not only secretary of state of Pennsylvania, you
are also president of the National Association of Secretary of
States, is that correct?
And you have 39 states in your association, is that----
Mr. Cortes. We have--all jurisdictions are within our
membership. Secretaries of state not only oversee elections,
but we do corporate filings, we do professional licensures,
records management--so our association comprises all 50 states,
the District of Columbia, Puerto Rico, the Virgin Islands,
American Samoa and Guam. So everybody is covered.
Mr. McCarthy. So you wear a big hat. You have got to not
only look at your state, but everybody else's. I will tell you,
in my home state, I have found that every election, things have
kind of changed. That people want to have a greater ability to
vote, make it easier to vote. One of our colleagues from
California, Mrs. Davis and I, had worked on absentee balloting,
which has continued to grow in California. You will find in
some districts, more than half the people vote before Election
Day.
Now, part of that work and what we have done in working on
legislation, it is also the greatest ability to have fraud.
Because you are outside and moving through, and then we have
heard from our colleagues before here as well, the fraud in
voter registration. You have got to be able to prepare, and
that takes time, just like preparing for an election. If
someone sends in the application, you have got to do the due
diligence to make sure that person's lived there, not 7 years
old, as we showed that someone before.
What type of work do you do in Pennsylvania for preparation
if someone turns in an application or first does a voter
registration? Do you check that before someone gets an
application by mail to vote? Or can they get it on the same
day?
Mr. Cortes. In Pennsylvania you must register to vote 30
days prior to Election Day, so there is a requirement of
registration. Forgive me, but I am going to ask you to rephrase
the question. I am trying to follow it----
Mr. McCarthy. If I walk in and I register to vote. So I
register to vote with you--could I get an application to vote
by mail on that same day? Or do you do any checks and balances
to make sure what I say on my voter registration, that I am a
citizen, where I say my age--is there any checks and balances
on there that----
Mr. Cortes. There are, Congressman. Yes, you can submit a
request for both, but the voter registration process is handled
first. In other words, you don't have to put in an application
and come back a week later for an absentee ballot--you can
submit them both at the same time. However, the process whereby
we verify that there is no duplicate in the registration, that
we can verify that you are the person you say you are, is a
check that is done first.
And we have the statewide voter registration database that
we are mandated to have by HAVA to thank for the ability to
have greater transparency and duplicate checks, the checks and
balances that I believe you are alluding to. So a jurisdiction
will receive an application, will go through their due
diligence, check everything, including verification and check
up with either Pennsylvania driver's license number, comparing
the information on that application to our Department of Motor
Vehicles registration records, or the last four digits of a
person with the Social Security Administration.
So those check-ups and verification that the person is not
registered elsewhere happen first. Once that is verified, then
the application for absentee ballot can be processed. In
Pennsylvania we have, however, what is known as excused
absentee voting.
Mr. McCarthy. He has to have a rationale----
Mr. Cortes. Only 14 categories exist for which you can
qualify for an absentee ballot. But the process is very
transparent----
Mr. McCarthy. Well, if I can follow up--I appreciate the
work that you have done there. Now, the concern I have, and one
thing that we looked at voter fraud and others--but you bring
the word ``transparency.'' On Election Day, you allow people in
from the outside to watch, right? Counting the votes and
others?
Mr. Cortes. Yes.
Mr. McCarthy. Well, I am concerned about--I listened to Mr.
Farrell, and he talked about, was it preparation, partnership,
and one other--success. Secretary of State Jennifer Brunner of
Ohio, her new advisory that prohibits observers during the 35-
day period where a person votes in person--she doesn't allow
people to observe during that time. So if you are in Ohio, you
can't do what--you can do something that you can't do in
Pennsylvania. I could walk in, I could register to vote, and I
could vote in person the exact same day and no transparency
where someone could actually view it from the outside, because
of this new advisory.
And I am just asking, in all the hats that you wear, what
was your opinion on having that activity?
Mr. Cortes. Well, I guess my answer to that, Congressman,
will be the one that applies to the sometimes-heard suggestion
that one size fits all for our country. We recognize that we
have a rich history of diversity within our Nation. I am not in
a position, nor will I comment, on the decisions of my
colleagues in Ohio or other state, for that matter. I believe
the decisions made by that state chief election official, I
would like to think, is being done with due diligence and with
the application of the law.
Many times what creates a difference in the way we approach
and we handle elections are constraints that are in law--either
Federal, most of the time state--that the chief election
officials have to abide by. People have to frequently defend
even the Help America Vote Act and the merits of that act, and
we are the implementers, not the body that created the law.
But I will say that the processes that I have observed have
within them inherent checks and balances that take into account
those potentialities. What I will say in terms of voter fraud--
most of our states, by the way, have established 1-800 toll-
free hotlines that people can call in to report fraud. When we
have instances of fraud, we go to those issues and attack them
vigorously. In fact, the states of Alabama and West Virginia
have created election voter fraud task forces to address that.
So I will say, respectfully, that I believe that the states
are operating within their legal constraints and acting in the
way that they believe is best fit for their electorate.
Mr. McCarthy. I appreciate the time you have given me. And
one thing I will say is, we have contested elections here. And
we sit on the panel--there was just three of us that did it.
Once someone casts that ballot, and that ballot is then
uncounted, you have a hard time going back through finding out
which one it is.
I appreciate the due diligence that you do and the
transparency that you do. And I do believe maybe one size
doesn't fit all. But I also believe that having a checks and
balance across the Nation makes a much safer election and a
more honest election and a greater partnership--as well.
I yield back.
Mr. Conyers. Thanks, Mr. McCarthy.
The Chair is pleased to recognize Mrs. Susan Davis of
California on the Elections Subcommittee
Mrs. Davis of California. Thank you, Mr. Chairman, and
thank you all for being here.
I am going to follow up on a topic of importance to me,
which is absentee voting. And I appreciate the fact that my
colleague has started some of that discussion. One of the
reasons that I think it is so important is that so many people
in this country are voting absentee today. And in fact, there
are areas where it is projected that about a third of the
country might vote by mail in this election.
So we need to certainly be very aware of what is happening.
And as we know, states vary tremendously in the way they
approach this issue.
And I wanted to ask you, Mr. Suleman: Virginia's laws on
absentee voting are quite intriguing, really. And there are
many excuses that happen to be valid, but it looks like the
forms are fairly complex for folks, and certainly there is some
invasion of privacy, as well.
I have got that form here. If you are sick or you have a
disability, you have to specify the nature of your illness. If
you work, you need to indicate your hours and the name and
address of your employer. If you have a religious obligation,
you need to describe it. If you are taking care of an ailing
relative, you need to name that person and describe their
illness. If you are on vacation, you need to say where you are
going. And you also need to tell the state if you are pregnant.
Now, could you tell me why all that is necessary? What do
you do with that information? How much time does it take to
verify that? Does it cost more to check these excuses than it
would to go to no excuses voting like California or Ohio? Why
is all this necessary?
Mr. Suleman. I think that is a question for the Virginia
legislature. Quite honestly, I don't believe that it is
necessary. My personal opinion is that it is not necessary. I
have come to Virginia from a state that instituted no-fault
absentee voting--Ohio--and I believe no-fault absentee voting
works.
The forms are very restrictive. I am denying forms every
day for voters that are not filling out the forms properly. I
don't like doing it, but I don't have the option to not do
that. I don't have the ability----
Mrs. Davis of California. How much--what does it cost you?
What about the personnel required?
Mr. Suleman. Oh--personnel. My MT department right now is
the largest department that I have, which I probably have about
25 people. And it is probably a quarter of my personnel budget
at this time. I can't give you an exact number of expense, but
the cost of denying this form, sending the form back to a
voter, saying that you missed this part of the form or this
wasn't checked properly or you didn't list your employer on the
form when you are working--sending that back to the voter and
having it sent back in--the cost in time and postage and money
is astronomical.
Mrs. Davis of California. Hmmm. Thank you.
Mr. Farrell, you went to no-excuse voting. And you had some
forms that were pretty complex as well, but you have changed
that. How has that affected your ability to do this part of
your job?
Mr. Farrell. Well, it is interesting. Even with Ohio's
fairly recent no-fault absentee application process--meaning
that you really don't have to have a specific reason--there
have still been some challenges. Because, under Ohio law,
certain information must be provided. What is interesting is
Ohio, for absentee ballot applications, does not actually
require a form. A citizen--or a voter, I should say--can even
hand-write the request as long as it has specific components.
So boards of elections in Ohio face similar challenges, but
are very used to someone who requests an absentee ballot maybe
not having all the required information. They have a process or
procedure where they notify the voter of what is missing and
have them turn that in.
Mrs. Davis of California. So there is a lot of extra time
involved in that.
Mr. Farrell. There is a lot of extra time. And
unfortunately some criticism when boards try to adhere to that
law and, you know, have to go through that effort.
Mrs. Davis of California. Thank you.
I just want to turn to Mr. Cortes quickly, because
Pennsylvania's form is not as invasive as it is in Virginia.
But nevertheless, you have to state your illness and doctor's
excuses--what has that done, and how much time do you spend?
And I think the other thing that is quite significant, Mr.
Suleman, that you cited is that you are turning back a lot of
those forms, not because people don't have a valid excuse, but
because they somehow read the form incorrectly.
How has it affected your voting?
Mr. Cortes. In Pennsylvania, this has been the law for so
many years that our administrators are well attuned to handling
the applications. So I can say that we do so fairly
expediently. The issue of the no-fault or the no-excuse
absentee voting was covered in a commission that I chaired back
in 2005. It was the unanimous recommendation of our body that
we do without the excuse absentee voting. We don't see it--as
in the case of Ohio, we don't necessarily see the value as much
anymore.
There is a nostalgia about voting in person, but we
recognize that with the complexities of today's life, people
may want to vote by absentee ballot. In Pennsylvania, you must
check off a reason. You don't have to explain it in detail,
just check it off. You are swearing that under oath, as an
affidavit, and you would be subject or could be subject to
penalties if in fact somebody is found to misrepresent that
decision.
But we believe that for the proper administration of
elections, there are enough checks and balances and other
things that we can do, and we should relax those requirements.
Mrs. Davis of California. That you should relax them.
Mr. Cortes. Yes.
Mrs. Davis of California. Okay. Thank you very much.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you, Mrs. Davis.
The Ranking Member of House Administration, Vern Ehlers.
Mr. Ehlers. I thank my colleague from Michigan, and thank
you for holding this hearing.
I will repeat the mantra which I have said numerous times
in the House Administration Committee, what I hold dear in
voting:
Number one: Every legal voter should be assured of the
right to vote and be assured that their vote will be counted
accurately and correctly. That is number one.
Number two: Every legal voter should be assured that their
vote will not be diluted or negated by other individuals
registering or voting illegally.
And I think we have done very well in the past several
years--in fact, quite a few years--about ensuring that legal
voters are able to cast their votes legally and to be assured
that it is counted legally. We know of the few instances
throughout the Nation where this has not always happened. But
by and large I think we do pretty well there.
I think we are not doing as well on the other part, and
that is, stopping the fraud of people who are voting
illegally--in other words, negating or diluting the votes of
people voting legally.
And there are lots of ways that this can happen. And part
of my cynicism comes from having served on contested case
hearings in various parts of the country where we observed
behavior that was certainly not appropriate.
And some of it is not at all the fault of the voter. The
one that disturbed me the most was an organization that was
telling undocumented aliens that of course they had the right.
And helping them become registered, and telling them how to
vote.
Now, first of all, this is not only illegal, but it is of
huge danger to the undocumented aliens, because if discovered
they are automatically deported. And I think that that is one
of the most egregious examples.
I am very bothered by the behavior of ACORN. Mr. Lewis, you
gave the example of their dumping everything on you. That may
not be particularly egregious, but it certainly makes your work
more difficult. And the question is, why would it be done if
you are not trying to confuse the process or overload your
staff?
There are other examples of ACORN; many of us have heard
those. And why do these organizations exist, why are they
trying to break the law? And I am delighted to have an
organization that is trying to register more voters. That is
what we need, that is what we should have. But why do they feel
the necessity to resort to irresponsible behavior or perhaps
illegal behavior? And I am just wondering if any of you can
enlighten me on that. And are there other organizations that
you see attempting to do the same thing?
Let's go down the line. Mr. Cortes?
Mr. Cortes. I would say that all state and local election
officials share the same views in terms of what you have
expressed. Every legal vote should be counted; no legal vote
should be diluted. And nobody that I know condones fraudulent
activity in any of its manifestations.
Based on personal experience and on what I read and my
discussions with the Department of Justice and district
attorneys and those that prosecute fraud, most groups that
engage in third-party voter registration do so for all the
right reasons. They are trying to franchise and make sure that
every voice is heard.
There is always a bad apple, so to speak, in every group.
And I can tell you that for one, and all my colleagues with me,
are always eager to learn of those instances. If information
does surface that you have individuals who are acting
unbecoming, we want to know about that. And we would work with
the proper law enforcement authorities to see that the law is
followed.
But my opinion is that by and large, groups that engage in
voter registration do so with all good intentions, and that
sometimes part of the problem is inadequate training of those
individuals who may not even be well suited to assist a
potential registered voter to complete the forms. And that
creates delays, inconveniences and burdens for the election
administrators.
So we share your views as far as that, and I cannot comment
more thoroughly with regards to ACORN. Some of this information
that is coming to me is news today.
Mr. Ehlers. Yes. Well, what bothers me is they seem to be
deliberately trying to subvert the process, and there is no
need for it. If they want to register voters, register them
properly and honorably.
Mr. Farrell, any comments?
Mr. Farrell. Well, prior to working at the Secretary of
State's office, I was chairman of the Clark County board of
elections in Springfield, Ohio. And interestingly enough, we
had a fraud case. It was not with ACORN. It was with another
group, out of Dayton, Ohio. And a couple of things about that
were interesting, because we actually had a hearing and took
testimony to try and work with the prosecutor's office in Clark
County on this subject.
From what I recall, there was a group that wanted to
register voters, and they subcontracted with an agency to do
the hiring and the training of these folks that would go out
and register what they believed were unregistered voters. Well,
they paid these folks based on the number of registrations that
would come in.
Well, it didn't take long before one or two employees
quickly figured out, gee, we will make more money if we claim
we signed up more people as voters. And that, in that
particular instance, seemed to be what led to the fraud. If I
recall, the prosecutor pursued it and the agency itself. There
wasn't any type of conviction for it, but obviously the
individuals that did this, were punished.
So it caused me to kind of think about who is really at
fault here, where is the real blame, is it folks just trying to
make a living that kind of overstepped, or is it the training,
as my colleague here mentioned? Or is it something that we need
to do, you know, to work and outreach with groups so that we
can prevent it.
Mr. Ehlers. Mr. Lewis, let me just jump to you. You said
ACORN has come in and periodically, it seemed to be a habit,
just dumped a bunch of registrations on you at the last minute.
Why would they do that?
Mr. Lewis. Well, first let me say, I have seen it happen on
both sides of the aisle in terms of dumping in on the last
minute. The problem is that these groups I think all think that
they are going to surprise the other campaign with how many
people they have registered.
And the truth of the matter is, if it is valid
registrations that we are after as groups--and we welcome all
the groups to do this--but they need to turn those in as they
collect them, as they get them from folks. So that there is an
orderly process here and so that we can indeed make sure that
the voter has done everything the voter needs to do to be on
the rolls.
If they will do that, then we have legitimate voters that
we are communicating with well in advance of an election. But
by dumping all of them in that last 2 or 3 days before
registration cutoff, they almost assure that we are going to
end up disenfranchising some of those people.
Mr. Ehlers. Thank you very much.
Mr. Suleman, do you have anything you wish to add?
Mr. Suleman. Yes, I do. We do see in the elections business
registrations that are turned in improperly. Registrations can
be termed fraudulent. But I think the system works. The system
catches those registrations. They may be turned in, but those
fake registrations are never put on the voter books. They are
caught through our checks and balances that we have as local
officials. We find them and then we say, okay, these are
fraudulent. They don't go on the rolls. Those people don't show
up to vote.
So in that instance, the system does work. I have
personally instigated six cases of elections fraud and gotten
four convictions when I was in Ohio. And the fraud occurred at
the petition level when, as Mr. Farrell said, organizations pay
people to go out and get signatures for referendums or for
initiatives or for campaigning. And they will pay $1 a
signature or $2 a signature. They tend to pick up a phone book
and fill out the forms.
And they tend to be the unluckiest human beings in the
world, because they pick dead people that we discover that are
still in the phone book.
So there is some fraud that exists, but I believe it exists
more at the petition level than at the voter registration
level. We catch the fraud at the voter registration level. And
I think we are doing a pretty good job of preventing fraudulent
voters.
Mr. Ehlers. Well, I am from Michigan, and naturally we are
very suspicious of fraud in Ohio, particularly in Big 10
football games. [Laughter.]
And so we recognize you have more problems than most
states.
Thank you very much. I yield back.
Mr. Gonzalez. [Presiding.] Thank you, Mr. Ehlers.
At this time the Chair is going to recognize the gentleman
from North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. I will be very brief,
because we have been called for votes, and I am sure Mr. King
would like to go, and I want to respect this panel and not hold
him.
Let me just, first of all, apologize to the members of this
panel for not being here. We have been trying to deal with the
financial crisis in which we have found ourselves. But I assure
you that it was because of that crisis that I was not here.
Because I think we could have an impending crisis around this
election, and that would be equally devastating if the world or
people in the United States walk away from this election
believing that it has not been administered fairly, has not
been--you know, the machines have broken down, the people have
been standing in line forever.
And, you know--so this is a serious, serious concern,
especially given the level of interest in this. Especially
given the level of new registrants. And when I walked in,
somebody, I don't even know which one of you it was--and I am
sure it was innocent, I am certainly not discouraging using the
language that you used--but I am always disappointed to hear
that we need to lower the expectation of voters.
This is a democracy that, at least until recent years, was
the symbol of democracy around the world. And we should have
the very highest expectations that we can conduct an election
that appears to the world and appears to our citizens to be a
fair election. And the last couple of elections, we have really
had some serious problems.
Actually, being from North Carolina and knowing the level
of under-count that has historically taken place going back--
not decisive of outcomes, potentially, but certainly indicative
of real serious problems in our election system--we have got to
raise our standards. And that is part of the reason that voters
have high expectations, because this is America.
So I hope that we can conduct an election this time. And
one of the concerns I have is really the allocation of machines
and the effectiveness of machines. Allocations--the prior
secretary of state in Ohio, Mr. Blackwell, was here in our
Committee, and you know, they apparently are using--according
to him, he would like to use the same criteria in allocating
machines that historically have been used in the past. And I
don't think that is going to work in this election. We know
that turnout in various communities is going to be higher--
much, much higher--than it has been.
And for us to be using the same models that we have used
and the allocation of machines based on historical voting
patterns, in my opinion, would be irresponsible. And I can't
say to my voters, lower your expectations about being to get
into the voting booth to cast your vote in some reasonable
time.
And I shouldn't be asking my constituents to lower their
expectations. I should be doing everything I can to live up to
those expectations, because I believe that is what America and
our democracy should be expected, and that is what we are
expected to do around the world.
So--believe me, I can't even--when I walked in I heard
``lower expectations,'' and I don't even know which one of you
it was that said it. And forgive me if I sound like I am
fussing at anybody. I am not. But we can't lower our
expectations in this area. This is central to our democracy. It
is central to the way that we perceive ourselves and that way
we are perceived around the world.
And I honor and respect everything that you do to live up
to those expectations, but please don't ask us to lower our
expectations. Not the American people.
Thank you, Mr. Chairman. I yield back. I didn't even ask a
question, and forgive me--whichever one of you it was that said
it, because I am sure it was said in the best of intentions.
And my comments back are said with the best of intentions.
I yield back.
Mr. Gonzalez. Thank you, Mr. Watt.
The Chair is going to recognize the gentleman from Ohio,
Mr. Jordan, for 5 minutes.
Mr. Jordan. Thanks. I thank the Chairman.
And I want to thank our witnesses for being here today, for
the work you do back in your respective states to help our
election process.
I want to focus my comments to my fellow Buckeye from the
county just south of the one I live in, Mr. Farrell. And I want
to pick up where Congressman McCarthy was just a few minutes
ago and talk about this overlap that is going to be there in
Ohio law starting next Tuesday, where early voting can start
and registration can still be done, you can do it on the same
day.
Ohio law, as it was pointed out in Mr. McCarthy's
questioning, Ohio's law is like Pennsylvania's law. You have
got to be a citizen, you have got to be 18 years old, you have
got to live in the state, you have got to vote in the precinct
and county you reside in. And you have to be registered to vote
for 30 days prior to voting.
Next Tuesday, the absentee ballot voting can start in our
state. And it is my understanding that earlier this month, on
the 11th, the secretary of state issued a directive saying that
in fact, you can do just what Mr. McCarthy described about and
the potential problems that are associated with that, in my
judgment, and frankly in his judgment. You can come in and--she
is going to allow people to come in and register and the same
day vote.
Is that the case, Mr. Farrell?
Mr. Farrell. I believe she advised boards to follow past
practice and yes, allow that to happen.
Mr. Jordan. And explain to me how that complies with Ohio
law, which when I read it, says that the citizen of the United
States is 18 years old and has been registered to vote for 30
days. How can we allow someone to come in and register and vote
on the exact same day? How does that comply with being
registered for 30 days?
Mr. Farrell. Well, first let me point out I am not an
attorney, so I will try and tell you what I have heard from
some of the election attorneys in our office. I think what this
hinges on is the term ``vote.'' Is that when the ballot is
turned in, or is it when the ballot is counted? Absentee
ballots in Ohio are counted on election night.
So one of the things that can happen in between the ballot
actually being counted on election night and when that absentee
was cast--regardless of whether it was during the 5-day window
or 6 days prior to the election--is for voter registrations,
there is a process to check and safeguard and detect someone
that maybe is not eligible to register.
With an in-person absentee ballot, it goes into an envelope
and can be pulled, if you will, by the board, or if someone
wants to challenge it and say, we have reason to believe this
voter registration wasn't valid.
Mr. Jordan. What do you do when someone comes in like in
this situation? What are you going to do to verify that they
are in fact a resident? I mean, what are you going to do to
check and make sure they are an eligible voter?
Mr. Farrell. Well, boards have a couple of things that they
usually do to check. One is, as my colleague from Pennsylvania
had mentioned, there is a statewide voter registration
database--they can instantly look up to see if that person is
registered somewhere else.
The other thing is, they do have a window of time to
process and mail a notice to this person. If that notice were
to come back as undeliverable or there was some sort of flag
regarding residency, again, because that ballot is in an
envelope and set aside and not to be counted until election
night, the board then could have a decision made on that voter
registration which would disqualify that ballot from being
counted on election night.
Mr. Jordan. So her whole--the directive is based on her
understanding that, because there is going to be 30 days from
the time that that individual votes, that is when the clock
kind of runs through, because the vote actually counts on
Election Day. That is your understanding?
Mr. Farrell. That is my understanding.
Mr. Jordan. What if--let me give you a scenario, then. What
if I am a poll worker assigned to work at the Republican
polling station on a primary Election Day, and knowing that I
am going to be busy that day, I get an absentee ballot before
the primary election. And I ask for a Democrat ballot, and I
vote that and turn that in. Would that disqualify me from being
a poll worker for the Republicans on that primary day?
Mr. Farrell. I would have to check on that. I don't know
the answer right off the time of my head, I apologize.
Mr. Jordan. My guess it would. You know, if I pull a
Democrat ballot and I am assigned to work as a Republican poll
worker, my guess it would disqualify me for that day. But
according to your logic, it shouldn't, because that vote won't
be counted until the end of Election Day later and I am not
officially a ``Democrat'' until that is actually counted. That
is my concern with the ruling the secretary of state's put on
her plate.
It doesn't make sense to me. It doesn't square with the
law. But more importantly, it is the issue that Representative
McCarthy brought up: can we really do the due diligence, have
the transparency that we need to make sure we are having fair
elections?
Mr. Farrell. And now that you have mentioned that, I do
believe under Ohio law, a person's party affiliation is
determined by the ballot they cast in the primary. And I
believe that affiliation----
Mr. Jordan [continuing]. I would say most, and I would say
most Ohioans, most Americans, think you vote when you vote. Not
35 days later or whenever it is counted. When you vote is when
you vote, and you should have been--according to Ohio law, an
elector registered for 30 days prior to doing that. That is the
problem with her ruling.
And if it is my understanding, too, she did this in a
directive on September 11th. Ohio law says that directives
before Ohio don't have to have public notice, public comment
after--excuse me, September 11. After September 12, they do. So
she issued this before there could be the public comment and
notice and all the things that are required under Ohio law. Is
that true?
Mr. Farrell. I would have to check the dates, sir. And I
don't know if this was an advisory, you are referring to, which
doesn't----
Mr. Jordan. My understanding was its directive 2008-91
issued on September 11th regarding this very issue, this
overlap in when absentee voting and registration can both take
place. And because it occurred before September 12th, there is
not the public notice and public comment period that is
traditionally there with Ohio law.
Mr. Farrell. I will accept your word for it, sir.
Mr. Jordan. All right. I thank the Chairman and yield back.
Mr. Gonzalez. Thank you very much.
The Chair will recognize Mr. Ellison for 5 minutes of
questioning.
Mr. Ellison. Thank you, Mr. Chair, and thank you for having
this important hearing.
I wonder, gentlemen, if you would offer any views on how
government-issued photographic ID requirements might impact
this upcoming election. I know in Indiana there is a
requirement, in Arizona there is, there is a few other states
that have them. Could you offer a viewpoint on how these impact
this upcoming election, particularly in light of the Supreme
Court ruling that upheld the Indiana law?
Mr. Cortes. Again, this is an issue of great debate
throughout the Nation. I stand by the belief that every state
adopts laws and procedures that are suited for their state. In
Pennsylvania, we don't have a photo ID requirement. We do want
to make sure, though, that we can verify the identities of
first-time voters. So we do have an ID requirement that
includes not only photo identification, but also forms of non-
photo identification, such as a recent bank statement, pay
stub, utility bill that shows a person's name and address.
In other states, again, the issue has been debated at
length, and the belief is that having the photo ID is a
deterrent to fraud, and I respectfully just will comment that
those states believe that that is in their best interest, and
they believe that they have ways to mitigate the use of the
requirement of the photo ID without disenfranchising voters.
But again, I think that is a question that is best suited for
those states that have that type of requirement. Pennsylvania
is not one of them.
Mr. Ellison. Mr. Lewis, you have a national purview on
this. Do you have any views on this, particularly in some of
the states that have these requirements?
Mr. Lewis. Well, obviously, this has been one of those
raging battles has gone on for 40 years in terms of elections.
There are some who honestly feel that we should indeed have
photo ID on everyone. And then there are those who say that by
doing that, you really end up disenfranchising folks.
And there is no easy resolution to this. I will say to you,
the states that have it--and I think we are at 11 or 12 that
are actually doing it--the ones that did it more recently than
the ones that had it for a long time are our laboratory, and at
this point so far, the allegations that it will slow down the
process or cause administrative problems for the process seem
not to have proved out.
On the other hand, it still doesn't solve that age-old
argument of whether or not it may or may not be unfair to
certain elements of society. I think as long as the government
of the states that do it actually make sure that they take care
of paying for it, if they are going to order it, if they pay
for it so that everybody who needs one has got one--then it
seems to work okay.
Mr. Ellison. My thought was that for the states that have
those kinds of requirements--and again, I am on record as being
very much those requirements--but for the states that have
chosen to do that, I think it is important for them to do some
public comment and notice so that people don't arrive at the
ballot box and not have the proper equipment, the ID.
Mr. Lewis. I agree with you. You know, you don't want folks
showing up not knowing that they needed X, Y, Z in order to be
able to vote. And yet at the same time, I am going to tell you
one of the hardest things that we ever find in elections--as my
colleagues here will tell you--folks don't show up ordinarily
with their voter registration card. If they did, we would have
a whole lot less likelihood of them being in the wrong place
all the time.
But the photo ID thing, at least so far--all I can tell you
is just from what the experience has been so far--seems not to
have been a major problem yet. That doesn't mean it won't be.
Mr. Ellison. Except for in Indiana, there was the story
about the 98-year-old nun who was turned away from the ballot
box. And some of her colleagues were, too, and some of other
folks were. Now it is true this is the first time it was
implemented, and maybe it won't be as bad at the general
election.
But I think it is important for the record to be clear,
there were people who were turned away in Indiana who would be
otherwise eligible voters.
Mr. Lewis. What I think we are really confronted with is
that first-time voters--inexperienced voters and first-time
voters--and those are two distinct categories, because you have
some that are occasional voters--because this is not a habit
for them, they don't know what to do in each instance. And
particularly if they have changed residence of the state they
were in. They are going to be the ones that we have the most
difficult time explaining to folks, ``yes, but you needed this
in order to do this.'' And so that is always an issue for us.
It is one of the reasons that, I think you heard Secretary
Cortes saying, in Pennsylvania he is pushing very hard to make
sure that every voter knows what is expected of them before
they get to the polls. And that is one of those things that we
wish we had tons of money so that we could advertise. My God,
it would give us some great relief just not to see a
presidential ad once in a while so that you could see an ad
about the voting. You know?
Mr. Ellison. What about--I mean, elections are public in
nature. I mean, yes, I have often thought to myself that it
might be a good public service announcement in some of these
states to say, hey look, you know, this is what you need in
order to vote. And again, you know, in Indiana and other states
that have these requirements, my thought is, look: while I am
against these requirements, I think they are unnecessary and we
shouldn't have them, they are there. I realize that--there
needs to be some sort of concerted effort to let the public
know.
Particularly in an election like this, where you are going
to have this enormous turnout, at least that is what folks are
expecting, that we hadn't had in the past.
Mr. Lewis. What ordinarily happens--and I can't say this in
every instance, because I haven't looked, obviously, at all
7,500 jurisdictions--but what ordinarily happens is that the
elections officials are indeed, they are trying to tell you
publicly in public news announcements, or they are mailing
notices with the voter registration card telling you where your
polling place is, also what you need to have with you in order
to vote. Sometimes that gets there, sometimes it doesn't.
Sometimes people read it, sometimes they don't remember getting
it. You know, this is where we are.
We try to notify. But the truth of the matter is, is we
don't have the funds on the administration side, the election
administration side, to do what would really be most effective,
which is radio and television advertising to tell folks what
they need.
Mr. Ellison. Well, I will take that as something we need to
start thinking about, Mr. Lewis. Thank you.
My next question, and it will be my last one, is: you know,
one of the things that also I think is somewhat disturbing is
that in the last election, there were a number of jurisdictions
in which before the election, people got flyers that were
stating improper and actually inaccurate information that was,
I think, designed to discourage them from voting.
For example, in Milwaukee there was something, a flyer that
had Milwaukee Black Voters League--you cannot vote unless you
have, if you have any outstanding child support, if you have
any unpaid parking tickets. And then of course, that was just
Milwaukee. These flyers were found all over the country. And
they were different and tailored to the jurisdiction.
You know, if a voter gets something like this, maybe they
are one of these inexperienced voters Mr. Lewis is talking
about. Maybe they can be taken in by something like this. Is
there any kind of--do your states and your jurisdictions have
hotlines where people can call to get that quick voting
information? And if you find out there is this sort of voter
suppression kind of thing going on, what can you do about it?
Mr. Cortes. Congressman, I am happy to address that issue.
NASS is releasing today our survey of all the states in terms
of our preparedness, and that is one of the issues that we
cover. And I am happy to report that 36 states have toll-free
hotlines that they utilize to report not only concerns that
they may have, but to have questions answered, as well as to
receive general voter information.
There are also a number of groups, such as Common Cause and
the League that have those hotlines available. And we encourage
people to report and to contact the state election officials or
county election officials for clarification.
If I could, and in fairness to our colleagues in Indiana,
Michigan, and Georgia that have the photo ID requirements, I
just want the record to reflect that those states are making ID
requirements central to their voter education and outreach so
that it is taking place as we speak.
Mr. Ellison. Thank you.
Mr. Lewis. I think the real issue here is one of fairness,
always. Fairness is what democracy is about. And any group or
organization that seems to me to misdirect folks in terms of
their rights as citizens of this country ought to be deplored
everywhere. This is just not right. Voting has to be fair. And
we cannot fear that folks who we don't like or don't agree with
show up at the polls. If they are legitimate voters, they are
entitled to be there, and we ought not to have anything that
misdirects them.
Mr. Farrell. In Ohio, the secretary of state's office is
working closely with the attorney general's office. If there
are situations that occur such as you describe, we would
definitely want to work with them, see what the options were in
terms of possible prosecution.
Mr. Gonzalez. Thank you very much, Mr. Ellison.
We are running under some time constraints, and we have
seven witnesses on the next panel--but I know that Mr. Jordan
has a request for an additional question. And I would just ask
my colleague if it is going to be really brief? The reason is
we have got to get to the next panel as Members come back.
Mr. Jordan. I thank the Chairman. The Chairman will maybe
note that I was real close to my five limit and no one else
was. But I will be real brief.
Mr. Farrell, tell me the difference between the directive
and advisory opinion.
Mr. Farrell. A directive, from what I understand, carries
the weight of law and must be followed by boards of elections.
An advisory is pretty much just advising them of ``here is what
the law is.''
Mr. Jordan. And I want to be clear. A directive prior to
September 12th doesn't require notice and public comment? A
directive after September 12th does, under Ohio law?
Mr. Farrell. I am sorry, could you repeat that?
Mr. Jordan. A directive issued prior to September 12th
doesn't require public notice, or notice and public comment? A
directive issued after September 12th of this year--you know,
close to the election--does require notice and public comment,
is that true?
Mr. Farrell. From my understanding, yes, that is correct.
Mr. Jordan. So the directive on this overlapping voting was
issued prior to the requirement that we have notice and public
comment.
Mr. Farrell. If there was indeed a directive issued prior
to the 12th, then yes, it would not require----
Mr. Jordan. Have there been any directives issued by the
secretary of state after September 12th up until today?
Mr. Farrell. I am sorry, could you repeat that?
Mr. Jordan. Have there been any directives issued after
September 12th through today, over the past 2 weeks?
Mr. Farrell. Not that I am aware of.
Mr. Jordan. Have there been any advisory opinions issued in
that same time frame?
Mr. Farrell. I believe there have been one or two.
Mr. Jordan. How come--do you know why the secretary of
state would do an advisory opinion after September 12th and
thereby--it seems to me a logical conclusion she is trying to
avoid any chance for notice and public comment by issuing
advisory opinions after that day.
Mr. Farrell. I am assuming the reason the advisories were
issued was in response to additional questions for advice
boards had requested from our office.
Mr. Jordan. Okay.
Thank you, Chairman.
Mr. Davis of Alabama. [Presiding.] Thank you.
I believe, unless there are any other Members who are
present, I think there are not, that concludes our first panel.
And I thank our witnesses for being here. And I excuse the
first panel.
And want to welcome our second panel of witnesses and ask
them to come forward.
Mr. Davis of Alabama. Let me thank our second panel of
witnesses, and given the size of the panel, I will introduce
each member of the panel separately and then ask them to make
their 5-minute statement. But there are a number of you.
Our first witness will be Grace Chung Becker.
Ms. Becker, welcome.
Ms. Becker is the acting assistant attorney general in the
Civil Rights Division of the Department of Justice. Prior to
her current position, she was the deputy assistant attorney
general of the Civil Rights Division as a former prosecutor in
the criminal division of the Justice Department.
Are you prepared to proceed, Ms. Becker?
You have to turn on your mic. If you are prepared to
proceed, you have 5 minutes.
TESTIMONY OF GRACE CHUNG BECKER, ACTING ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Ms. Becker. Thank you very much, Mr. Chairman.
Good afternoon, Chairman Davis, and other Members of the
Subcommittee and the Committee. I am honored to appear here
today to discuss the civil rights division's plans for the 2008
general election.
This is an unprecedented election year. As we have heard
from the first panel, voters are registering in record numbers
and record turnout is expected at the polls. Although the first
panel witnesses and the constituencies they represent have the
primary responsibility on Election Day for administering
elections, there is an important role for the Justice
Department to play, and we are preparing to do our part.
I am fortunate to have a tremendously talented and
hardworking team of about 40 attorneys and 40 non-attorneys in
the voting section. I have asked them to vigorously enforce all
of the voting statutes in the division based solely upon the
facts and the law. I have echoed the words of Attorney General
Mukasey and emphasized that politics has no role in our
decision making in this election year.
I know that Members of this Committee are particularly
concerned about voter intimidation. The division takes a
multifaceted approach to combating and preventing voter
intimidation. First, we successfully brought lawsuits under
section 2 of the Voting Rights Act that have included
allegations of voter intimidation based on race, color, or
membership in a language-minority group.
We brought cases in New Jersey, Pennsylvania, Georgia,
Boston, Florida and Mississippi. For example, we have addressed
situations in which voters were subjected to hostile and
discriminatory remarks and unfounded and discriminatory
challenges; that they have had their ballot choices improperly
influenced, coerced or changed; that entrances were blocked to
polling places; that attempts were made to prohibit eligible
voters from voting; that voters were challenged on the basis of
race, and that they were subjected to hostile treatment.
Another way to prevent voter intimidation is to empower
vulnerable voters. For example, we brought 10 of the 12 cases
ever brought under section 208 of the Voting Rights Act to
ensure that voters have the assistor of their choice in the
voting booth. In addition, we brought 29 cases under the
language minority provisions of that act. Translated voting
materials and bilingual poll workers empower nationalized
American citizen voters and can prevent intimidation from
occurring at the polls.
Third, the division's election monitoring program also
helps to ensure that voters are not intimidated. So far during
calendar year 2008, we have sent 397 Federal observers and 158
department personnel to monitor 51 elections in 47
jurisdictions in 17 states. On November 4, hundreds of Federal
Government employees will be deployed in counties, cities and
towns across the country.
The department will have a toll-free hotline with
interpretation services. We will have a fax number and
internet-based mechanism for reporting problems. As part of our
pre-election outreach efforts, we have heard concerns over the
longstanding practice of using small numbers of criminal
prosecutors as monitors on Election Day. And while we have not
heard of any actual intimidation resulting from this practice
and have never received complaints from voters about it, we
nevertheless take these concerns very seriously. Therefore, out
of an abundance of caution, I have determined that no criminal
prosecutors will be used as monitors on Election Day.
I know that the Committee has also been concerned about
voter ID laws. And while the Supreme Court has decided that
Indiana's voter identification law is constitutional on its
face, it is important to emphasize that the court also held,
consistently with the department's position, that individuals
can sue if a voter ID law is applied to them in an
unconstitutional manner.
In addition, the Civil Rights Division is prepared to take
action if an ID law or any voting law is being enforced in a
discriminatory manner. For example, this summer we filed and
favorably settled a Voting Rights Act section 2 case in Penns
Grove, New Jersey, that included allegations that Hispanic
voters were required to show more identification than White
voters. And this is even though the state law did not require
any voter identification.
In conclusion, the department stands ready to take any
appropriate law enforcement action, whether civil or criminal,
in response to voter intimidation that implicates the statutes
that we enforce. We remain committed to vigorously enforcing
all of our statutes where warranted by the facts and the law.
Thank you very much.
[The prepared statement of Ms. Becker follows:]
Prepared Statement of Grace Chung Becker
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Davis of Alabama. Thank you, Ms. Becker.
The second witness today on this panel is Paul Hancock, who
is a veteran voting rights litigator. He was one of the
litigators in Bush v. Gore at the Florida Supreme Court and
U.S. Supreme Court level, and previously attained the highest-
ranking career civil service position in the Civil Rights
Division of the Department of Justice.
Mr. Hancock? You have 5 minutes.
TESTIMONY OF PAUL F. HANCOCK, PARTNER, KIRKPATRICK AND LOCKHART
PRESTON GATES AND ELLIS, LLP
Mr. Hancock. Thank you, Mr. Chairman.
I address this issue as a Department of Justice official. I
have worked on complying with the Voting Rights Act as the
attorney general for the state of Florida. And I was involved
in one of the most contentious voting rights cases in the
history of our country.
I think the overall theme that I would like to state to you
today is that presidential elections are not re-run. So when we
talk about preparing for this election, what we need to do is
have a procedure in place, a program in place, for identifying
the problems before the day of the election and correcting
those problems before the day of the election, or at least
promptly as the election is taking place.
That differentiates this election from any other election
that is conducted. The voting rights section, the voting
section of the Civil Rights Division, also often has had
Federal observers in place designed to monitor the election,
decide whether problems existed, and worked to correct those
problems later. That doesn't work in a presidential election.
The problems need to be identified and corrected before the
election is held.
The only legal authority for the Department of Justice to
observe the election process at the polling place arises from
Voting Rights Act. And the sole legal basis provided by the
Voting Rights Act for Department of Justice officials or
Federal observers to enter the polls to observe the process is
if the department believes, has a reasoned basis for believing
that there may be denial or abridgement of the right to vote on
account of race, color, or in contravention of the language
minority guarantees of the Voting Rights Act. That is the only
reason for being there.
The Voting Rights Act was passed after a really sorry
history in our country of voter intimidation and suppression
directed at Blacks. And it was directed under the color of law
by law enforcement officials and by state government officials.
We have come a long way since then. The candidates prove
that in this election. But the act has been in effect for only
43 years. Many Americans who will turn up to vote at this
election--many of them who have been away for many years--have
lived through the suppression and intimidation that was
effectuated under color of law.
But the department is under--must apply a difficult balance
here of having, monitoring to make sure that there is not a
denial or abridgement of the right to vote on account of race,
color or language minority status--at the same time making sure
that law enforcement isn't used in a way that will have a
countervailing effect of intimidating people from voting.
I am pleased with what Ms. Becker said a minute ago, that
criminal prosecutors aren't being used to monitor the election
process this year. Because that reflects the consideration that
needs to be given to the problems that might arise at this
election.
We likely, as we said, we will likely have the largest
turnout and certainly the largest Black turnout in the history
of our country. And we can expect that there will be confusion
on the polls on the day of the election. And I suggest that
preparations be made to avoid that.
And I would like to just take some disagreement with what
Mr. Lewis said in the first panel. And that is, I believe that
election officials do have a responsibility to direct voters to
the right polling place. And that is important in the context
of the way the HAVA provisional ballot law has been implemented
by the state. Let me just take a minute to explain that.
When Florida enacted its election reform legislation after
the 2000 problems, a provisional ballot provision was in that
election reform legislation. And the Florida law, like the law
of many states, provided that a provisional ballot would be
counted as a valid vote not--it wasn't to be counted merely
because a person was properly registered to vote. It was only
to be counted if the person was properly registered and
actually appeared at the proper precinct. So if the voter was
supposed to be at this table and went to that table, and they
are given a provisional ballot, that ballot isn't counted in
Florida. And it isn't counted in many other states.
Thus, the Department of Justice was very concerned about
that provision of Florida law and the course of the section 5
review process, and granted section 5 pre-clearance only on the
condition that election officials would, before they gave a
provisional ballot to any voter, would first look up the proper
precinct for the voter and direct that voter to the proper
precinct before they gave them a provisional ballot.
I suggest to you that in many states--and it is not
uniform--but in many states, including Florida, provisional
ballots are an illusory promise. They most often aren't
counted. They most often aren't valid votes. And the reason
most frequently those are not valid votes is the person is just
voting at the wrong table. They showed up at the wrong
schoolhouse.
HAVA now requires that state officials maintain a master
list of registered voters, and there should be no issue with
election officials, before giving the provisional ballot, first
direct voters to the proper precinct. Discrimination under the
Voting Rights Act--and let me just emphasize that--provisional
balloting is an illusory promise.
Mr. Davis of Alabama. Let me also ask you to wrap up
quickly, Mr. Hancock, as we have so many panelists. You are
over your time limit.
Mr. Hancock. Sure. I will stop and leave it for
questioning.
[The prepared statement of Mr. Hancock follows:]
Prepared Statement of Paul F. Hancock
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Davis of Alabama. Thank you, Mr. Hancock.
Our next witness is Karen K. Narasaki, who is the president
and executive director of the Asian American Justice Center,
has been a long-time advocate for the Asian American community
and is a leading expert on immigrant civil liberties and human
rights.
Ms. Narasaki, you are recognized for 5 minutes.
TESTIMONY OF KAREN K. NARASAKI, EXECUTIVE DIRECTOR, ASIAN
AMERICAN JUSTICE CENTER
Ms. Narasaki. Thank you, Mr. Chairman. I ask that our
longer, written testimony be submitted for the record.
Mr. Davis of Alabama. Without objection.
[The prepared statement of Ms. Narasaki follows:]
Prepared Statement of Karen K. Narasaki
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Narasaki. Thank you.
According to the census, more than four million voting-age
citizens who are Latino, Asian American, or American Indian and
Alaska Native and who speak English less than very well lived
in section 203-covered jurisdictions in 2000, 8 years ago. Many
naturalized citizens, as you know, who are also racial
minorities face discrimination when voting. And limited
English-proficient citizens can have difficulty understanding
complex voting materials and procedures. Too often, they face
hostile or impatient poll workers or denied needed or lawfully
required assistance.
Unfortunately, section 203 non-compliance continues to be a
problem. As a result, the Department of Justice has had to
bring enforcement actions against cities like the City of
Walnut in California on behalf of Asian American voters and in
Kane County, Illinois on behalf of Latino voters.
Similarly, the Native American Rights Fund and the ACLU
successfully sued Alaska on behalf of Alaskan Natives to
provide effective language assistance to citizens who speak
Yup'ik, the primary language of minority voters in the Bethel
region in Alaska.
With elections less than 2 months away, we are urging that
DOJ remind jurisdictions about their obligations under section
2 and 203, offer technical assistance, and continue to pursue
the enforcement actions. They must work to ensure that these
jurisdictions are ready for the tens and thousands of new
Asian, Latino and Native American voters who are being urged to
come out this year.
Some poll workers are reluctant to help language minority
voters. Maybe they are unaware of how to help, or they are
suspicious of the bilingual poll workers or the voters.
Incidents include sending limited English-proficient voters to
the back of the line because they are taking too long, or
segregating them from the English-speaking voters. Even more
problematic are poll workers who are openly hostile and
discriminate against these voters who are not completely
fluent.
DOJ should urge jurisdictions covered by 203 to do a better
job of recruiting, screening and supervising poll workers.
These poll workers who are hostile or unwilling to assist
should not be tolerated, and DOJ must hold jurisdictions
accountable for not properly supervising and managing them.
Problems also exist with poll workers who were under-
trained. For example, many were aware of section 203 or the
existence of provisional ballots in the last election. Polls
are also confused as to what ID requirements are required, and
this can result in racial and ethnic profiling and wrongly
asking minorities for ID that are not required.
Additionally, many poll workers do not know section 208,
which allows minority voters to take a person of their choice
into the voting booth. DOJ must continue to monitor for such
problems and remind jurisdictions to train specifically on
these issues.
Anti-immigrant sentiments and rhetoric have been growing,
unfortunately, and consequently Asian American and Latino
voters face hostility because of the erroneous assumption that
they could not be citizens, including unwarranted challenges of
their registration or at the polls, or even intimidation. We
hope that the DOJ will actively engage and closely monitor
areas where there have been particularly heavy anti-immigrant
sentiments or acrimonious policy debates, to ensure that local
election officials are doing all they can to prevent that kind
of behavior from creeping into the polling place.
Finally, agency requests that the Department of Justice
looks into why there has been a decrease in bilingual poll
workers in Santa Clara, including the Santa Clara County's
registered methodology for determining how many bilingual
workers are needed and whether or not there is section 203 non-
compliance occurring.
We applaud the Department of Justice for bringing section
203 cases against jurisdictions such as the ones that the
assistant attorney general mentioned. DOJ also successfully
brought an action against Boston on behalf of Chinese and
Vietnamese voters. We urge them to monitor Boston during the
upcoming general election, as they did during the recent
primary.
We also urge them to continue press the Massachusetts
Secretary of State to fully transliterate candidate names in
Chinese language ballots and boxes. We believe that a fully
bilingual ballot for Chinese American voters includes these
transliterated candidate names.
Finally, the Congressional Asian Pacific American Caucus
has asked the department about its plan for upcoming election
in a letter dated August 22. It raises specific questions about
several specific sites, such as: Why did DOJ declare a plan
under section 5 that will reduce the number of Chinese and
Korean interpreters at poll sites in New York, New York? We are
hoping that they answer these quickly, in time for the
election, so that corrections can be made.
Thank you.
Mr. Davis of Alabama. Thank you.
Our next witness is Bryan O'Leary, who is a graduate of the
United States Naval Academy and a former F-18 Hornet pilot. Mr.
O'Leary, after he finished his time serving our country,
participated in helping investigate the Department of Defense's
voting program. He is now a public policy consultant at Crowell
and Moring's public policy practice group.
Mr. O'Leary, thank you for your service. You have 5
minutes.
TESTIMONY OF BRYAN P. O'LEARY, PUBLIC POLICY CONSULTANT,
CROWELL MORING
Mr. O'Leary. Mr. Chairman, distinguished Members of the
Committee, thank you for inviting me to testify today.
In 1952, President Harry Truman wrote to Congress regarding
military absentee voting. He said, ``At a time when these young
people are defending our country, the least we at home can do
is to make sure that they are able to enjoy the rights they are
being asked to fight to preserve.'' Over 50 years later,
military voting remains a burdensome bureaucratic process that
prevents our military men and women from being able to enjoy
their rights as citizens.
I experienced this broken system firsthand as a Marine,
when I was not able to vote. Despite my lack of success, I was
picked to be the voting assistance officer to help all of my
Marines vote. My story is not unusual. Voting officers have
little or no training; they are not JAG lawyers. They are
front-line officers, oftentimes commanding soldiers, sailors,
airmen and Marines in battle.
It is absurd to expect that a young lieutenant who is
commanding a platoon of Marines in Hellman Province in
Afghanistan or Ramadi in Iraq is going to succeed sifting
through local, state and Federal laws and regulations that are
all different, deadlines and ballot requirements that are all
different, in order to ensure his or her Marines can vote,
while at the same time fighting a war in a remote, austere
environment.
Clearly, this is almost an impossible task. Even if that
lieutenant could figure out all the different deadlines and
rules, it is unlikely that those Marines would get their
ballots in time to have them returned and be counted. Because
of long delays shipping ballots to and from war zones, for the
votes of our men and women deployed to Iraq and Afghanistan to
count, today is their Election Day. Our military postal system
has informed deployed soldiers that they should send in their
ballots no later than September 30th in order to be counted on
time. However, unfortunately, many states and counties will not
even print their ballots and send them until October.
And if those ballots do finally reach their correct local
election officials, they are greeted by political party
operatives and lawyers who are determined to throw out every
military ballot that is not perfect. Throwing out a military
ballot that was prepared in a war zone is shameful. Both
political parties and both presidential campaigns should
condemn any legal attacks or challenges challenging the
validity of the ballots of our military men and women.
The evidence continues to stack up that the DOD has failed
our military men and women. This last week, the Pew Center on
the States released a report that further documents that
failure. Although 77 percent of the military said that they
were very interested in voting, only 20.4 percent voted in
2006--that is half the rate of the general public. In 2006, for
the general public, 85.8 percent of absentee ballots requested
were cast, versus only 26.5 percent of military ballots.
If the military rates matched the general public rates,
there would be roughly a half a million more military votes
cast and counted.
Mr. Chairman, I would like to ask unanimous consent that
the Pew report be included in the record.
Mr. Davis of Alabama. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. O'Leary. Sadly, the Election Assistance Commission
results were even worse. Of the estimated six million military
personnel dependents and citizens eligible, only 992,000
requested a ballot. Only 330,000 of those were cast. And we
also know that 48,628 were rejected. This is a shocking rate of
only 5.5 percent voter participation from military and overseas
citizens.
This problem could have and should have been solved years
ago. Yet our Industrial Age bureaucracy has failed to embrace
the Information Age. Technology is available today to securely
encrypt and electronically transmit blank ballots to military
men and women around the world. Congress directed the DOD to
execute such a program in 2006, and the DOD failed to execute
it.
The Administration, the DOD, and the DOJ need to stop
making excuses for their failure. Instead, Congress and the DOJ
should stop accepting those excuses and force action to fix
this problem.
Thank you for allowing me to testify today. I look forward
to your questions.
[The prepared statement of Mr. O'Leary follows:]
Prepared Statement of Bryan P. O'Leary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Davis of Alabama. Thank you, Mr. O'Leary.
Our next witness is James Terry, who is the chief public
advocate for the Consumer Rights League. And he and his
organization have a long history of not only helping Americans
register to vote, but also facilitating the participation in
the political process.
Mr. Terry, you have 5 minutes.
TESTIMONY OF JAMES TERRY, CHIEF PUBLIC ADVOCATE, CONSUMERS
RIGHTS LEAGUE
Mr. Terry. Thank you, Mr. Chairman, Members of the
Committee.
I appreciate the opportunity to be with you today, and I
ask that my extended remarks be entered into the record.
Mr. Davis of Alabama. Without objection.
[The prepared statement of Mr. Terry follows:]
Prepared Statement of James Terry
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Terry. The Consumers Rights League supports aggressive
efforts to educate, motivate, register and assist all citizens
in voting, so long as those efforts are legal. Unfortunately,
there are some groups that don't seem to share that concern.
First-hand accounts from current and former employees,
major news stories, and court cases across the country expose
corruption at every level of the Association of Community
Organizations for Reform Now, or ACORN. To truly grasp the
potential impact that ACORN's activities may have on the
upcoming elections and future elections, it is important to
understand their structure.
ACORN is a massive organization with 150 subsidiary
organizations and an estimated $110 million budget this year
that is centrally controlled from the top down. Thus, there
should be no distinction between crimes or alleged crimes
perpetrated by personnel from affiliates, like Project Vote, or
those from ACORN.
A careful observer will note a 10-year record of voter
registration fraud on the part of ACORN and Project Vote. Ten
years and five election cycles is not a series of mistakes: it
is a pattern. In fact, rather than showing any signs of
improvement, all signs point to increased lawbreaking.
A quick snapshot of ACORN's record from 1998 to 2007 alone
includes thousands of false or fraudulent registrations in
Missouri; at least two convictions of ex-ACORN employees
following Colorado's 2004 election; the 2004 arrest of a former
ACORN employee in Minnesota with 300 voter registration cards
in his trunk; the 2000 indictment of several workers in
Washington State, which has been cited earlier as the worst
case of voter registration fraud in the history of the state.
In April 2008, eight former ACORN employees in Missouri
pled guilty to voter fraud in the 2006 election.
Each time ACORN is accused of faulty registrations, the
organization blames a handful of its supposedly rogue workers.
It promises to clean up its act and impose tighter
restrictions. Yet after 10 years, they have not been able to do
so. In 2000 alone, ACORN's activities have prompted calls for
investigations in nearly a dozen states: Louisiana,
Pennsylvania, Connecticut, New Mexico, Texas, Nevada, Ohio,
Wisconsin, Michigan, North Carolina, and just as recently as
yesterday you can add Florida to the list.
In July, Pennsylvania officials charged a former ACORN
employee with 19 counts of perjury, making false statements,
forgery and identity theft. In New Mexico, Bernalillo County
officials are currently investigating 1,100 possibly fraudulent
cards. In Texas, about 40 percent of the 27,000 registration
cards gathered by ACORN from January to July have been rejected
or placed in limbo. In Michigan, a case that was cited earlier,
the secretary of state said problems appear to be sizable.
Duplicate fraudulent applications is widespread.
In Ohio, ACORN's pattern of voter registration fraud
apparently includes the 73 registration cards turned in this
year for just one individual. Cuyahoga County election boards
officials have compiled a binder of evidence of suspicious
activity. That binder is more than an inch thick.
In Wisconsin, by the end of August, Milwaukee's election
commission executive director had referred over 49 individuals
to prosecutors for suspected voter registration fraud. Of them,
37 were ACORN employees. And just last week, Durham County,
North Carolina's election officials asked for an investigation
of dozens of cards submitted by ACORN. One was for a 14-year-
old boy.
ACORN routinely says it will clean up its act. Yet given
its decade-long history of voter fraud, embezzlement, and
misuses of taxpayer funds, ACORN's pattern of fraud can no
longer be dismissed as a series of unfortunate events. We know
about the thousands of fraudulent voter registration cards
turned in by ACORN and caught by officials. But given the size
of ACORN's efforts and the fact that the abuses appear to be
systemic, we believe it is fair to question how many more
fraudulent registrations have not been discovered.
And furthermore, as this mega-organization with a decade's-
long history of violating the law has turned to get-out-the-
vote efforts, we believe it is fair to question how many
fraudulent registrations may lead to fraudulent votes, or what
other activities they may be willing to undertake to influence
the election.
These are serious questions, especially in light of recent
election results which show that just a few votes can change
the outcome of an election. While we do not presume to tell
this Committee how to address this problem, we respectfully
submit that our Nation's election system is facing a concerted
campaign that raises serious issues that merit the Committee's
oversight and intervention.
Thank you for the opportunity to speak today, and I look
forward to your questions.
Mr. Davis of Alabama. Thank you, Mr. Terry.
Our next witness is Jocelyn Benson, who is an assistant
professor of law at Wayne State University Law School. She is
also the founder and director of the Richard Austin Center on
Election Law and Administration and is a member of the ABA's
standing committee on election law.
Professor Benson, welcome. You have 5 minutes.
TESTIMONY OF JOCELYN BENSON, ASSISTANT PROFESSOR, WAYNE STATE
UNIVERSITY LAW SCHOOL
Ms. Benson. Thank you.
Several years ago I served as a law clerk to the Honorable
Damon J. Keith, a Federal judge on the U.S. Court of Appeals.
Judge Keith famously cautioned us that ``Democracies die behind
closed doors.'' Democracies also die, I believe, when the doors
that lead to political participation and enfranchisement are
pushed closed. They die when Americans lawfully seeking to cast
a legal ballot are deterred or disenfranchised, and they die
when government actors fail to ensure that pathways to
democracy are free from the congestion of challengers who block
lawful voters from participating in an election.
This role of election challengers, whether they be
representatives from political parties or other groups in the
polls on Election Day, has increased in prominence in recent
elections. Today I would like to detail a recent controversy in
Michigan over the use of foreclosure lists to challenge the
residency, and thus eligibility, of voters on Election Day.
Two weeks ago, a Web site called Michigan Messenger
reported allegations that Republican Party challengers may be
using lists of foreclosed to challenge the eligibility of
voters when they arrive to vote. Michigan demographics may
suggest that voters on these lists may be disproportionately
African American. Now these allegations, importantly, were
forcefully denied, and I am not here today to challenge those
denials. I instead wish to highlight the resulting confusion in
Michigan over whether voters facing foreclosure wonder now
whether they will still be entitled to vote in November.
The fact is that under Michigan law, voters cannot be
challenged without good cause. And under Michigan law, only
residents who have moved outside of their city or township to
another county prior to September 4 are required to re-register
at their new address. Voters who move within a county,
according to the Michigan secretary of state, are permitted to
vote one last time at their old address.
Thus, the listing of a voter's residence on a list of
foreclosed homes does not, in and of itself, provide sufficient
information to indicate that that voter has moved to a new home
outside of that county prior to September 4, 2008.
Nor should any list acquired from mailings sent to those
foreclosed homes that bounced back as undeliverable lead to
similar conclusions. The voter confusion that I have observed
in Michigan since these stories emerged has been, in my view,
compounded by a lack of clear and thorough clarification of the
law from election officials in the state.
For that reason, my first recommendation today is that in
Michigan and in any other state dealing with voter confusion,
the state's chief election authority issue clear directives to
local election officials and the public on the law that ensures
that voters and election officials are empowered with a full
understanding of the law.
My second recommendation is similarly, that election
officials engage in extensive public education efforts and
outreach that are focused on explaining the hows and mechanics
of voting. In addition to press releases, public service
announcements, mailings, phone calls, and also posters in the
polling place that simply state the law in its entirety are, I
believe, required to ensure that this education campaign is
successful.
In addition, I believe an education campaign is best
coupled with my third recommendation, the development of
collaborative relationships with community-based organizations.
These organizations, I believe, know best what the needs of
their communities are, and collaborative relationships between
election officials and these organizations can help ensure that
both are proceeding in the best interests of the voter.
My last two recommendations deal with training and
regulating challengers and poll workers. I believe that
mandating training for challengers in Michigan and in other
states and also improving training for poll workers will ensure
that both are equipped with the knowledge of the law and ensure
that the law is followed on Election Day.
I also recommend the use of comment cards in the polling
places on Election Day that would empower voters to interact
with poll workers and evaluate and offer feedback on their
experience.
Thank you for the opportunity to testify today.
[The prepared statement of Ms. Benson follows:]
Prepared Statement of Jocelyn Benson
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Davis of Alabama. Thank you, Professor Benson.
Our last witness for this panel is Kristen Clarke Avery,
who is an expert on voting rights and election law. She is the
co-director of the Political Participation Group at the NAACP
Legal Defense and Educational Fund and has a long, extensive
history of voting rights litigation.
Ms. Clarke, you are recognized for 5 minutes.
TESTIMONY OF KRISTEN CLARKE AVERY, CO-DIRECTOR, POLITICAL
PARTICIPATION GROUP, NAACP LEGAL DEFENSE FUND
Ms. Clarke. Thank you.
Founded under the direction of Thurgood Marshall, the NAACP
Legal Defense Fund is the Nation's oldest, and we believe
finest, civil rights firm that has served has served as legal
counsel for African Americans over the course of the last
several decades. LDF has provided testimony in support of the
Voting Rights Act of 1965 and other Federal voting rights laws
and core voting protections.
The last two presidential elections have significantly
undermined public confidence in our political system. So what I
would like to do today is take my time to identify some
specific actions that the Department of Justice can and must
take to help restore that lost faith and confidence and help
ensure that this election is a smooth one.
First, DOJ must deploy Federal observers to protect
minority voters in those areas of the country where we are
hearing complaints of potential voter intimidation and
suppression tactics that might rear their head on Election Day.
Second, DOJ should terminate its use of criminal
prosecutors as poll monitors. And I want to take a moment to
recognize Acting Assistant Attorney General Becker's recent
decision to cease this practice. But let me take a moment just
to provide some context about why this has been a very
important issue for us at the Legal Defense Fund.
Criminal prosecutors at U.S. attorneys' offices have been
at the front lines of aggressive vote fraud investigations that
have been taking place around the country in recent years. And
there certainly is a very long history that has shown that law
enforcement officials and prosecutors who lie at the heart of
their efforts can have the effect of intimidating minority
voters at the polls.
We are pleased that the Department of Justice has decided
to reconsider its practice and shift course here, and we hope
that this will become a permanent policy on the part of the
Justice Department.
Third, the Justice Department should develop an action plan
for Election Day, an action plan to respond to the serious
problems that might emerge both on or immediately prior to the
election. We want DOJ to be proactive, and we are in a position
where we can foresee and anticipate some of the problems that
are likely to arise. We know that there will be high turnout.
We know that there may be long lines. We know that we face the
potential of seeing situations that we have seen during the
2000 and 2004 presidential elections.
Emergency Election Day litigation may be necessary to
ensure that all voters receive a fair and equal opportunity to
cast their ballots. Although the relief that would be sought in
any emergency litigation will vary depending on the facts at
hand, we certainly know that an extension of poll hours may be
appropriate in those jurisdictions that are not equipped or
prepared to handle high turnout, or in areas where machines
malfunction or where polling sites open late.
By way of another example, a court's order may add value
where poll officials are failing to offer provisional ballots
to voters pursuant to the Help America Vote Act. In recent
elections it has been the advocacy community and the civil
rights organizations that have largely borne the burden here.
DOJ should construct and publicize its own plan for turning to
the courts on Election Day where local and state officials
prove unwilling to voluntarily to take steps necessary to
quickly resolve the problems that might emerge.
Fourth, the Justice Department's goal should be our goal:
making sure that everyone who wants to vote in this election
cycle gets to do so. And what does that mean? That is making
sure right now that there is compliance across the board with
the mandates of the National Voter Registration Act. Making
sure that DMVs and other state agencies are offering
registration opportunities as mandated by state law. Making
sure that those agencies are timely transmitting those forms to
election officials so that the forms can be processed.
But above and beyond DOJ's statutory enforcement
responsibilities, I also think that DOJ can use its leverage to
encourage state and local officials to make every effort to go
above and beyond their ability to reach historically
disenfranchised populations. In the state of Alabama, a local
activist by the name of Reverend Kenneth Glasgow recently
initiated a non-partisan voter registration drive aimed at
reaching eligible, but not yet registered voters inside of
local jails. Although the registration drive was initially
supported by the Alabama prison commissioner, the drive was
terminated after receiving complaints from the state's
Republican Party leadership.
To the extent that these eligible voters, a
disproportionate number of whom are African American, may
already encounter significant barriers in their efforts to
register and vote, voter registration drives such as these
should be encouraged.
Mr. Davis of Alabama. Ms. Clarke, let me encourage you to
wrap up, since you are over the time limit.
Ms. Clarke. I will wrap up. I urge Congress and this
Committee to consider a post-election oversight hearing that
measures the success in the administration and conduct of the
November election against the series of very good
recommendations that have been offered during today's hearing.
Thank you.
[The prepared statement of Ms. Clarke follows:]
Prepared Statement of Kristen Clarke Avery
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Davis of Alabama. Thank you, Ms. Clarke.
And let me thank all the witnesses and remind them that
their full written statements will be made a part of the
record. And I will take up the first round of questions for 5
minutes.
And Ms. Becker, let me begin, if I can, with you and try to
dispose of one matter very quickly. During the first panel,
there was a lot of conversation about a particular group called
ACORN. And Mr. Terry made some statements that were, shall we
say, unflattering with respect to that group. So let me consult
the record.
To your knowledge, are there any pending Federal
indictments regarding ACORN? Towards membership and activities
connected with ACORN?
Ms. Becker. That is a very important issue. That is an
issue which is typically handled by criminal prosecutors in the
93 U.S. attorneys' offices around the country----
Mr. Davis of Alabama. But do you know of any?
Ms. Becker [continuing]. Consultation of the election crime
unit of the public integrity section of the criminal division.
And they would be the ones that would be in the best position
to know that. We in the Civil Rights Division are focused
primarily on voter access and the voter intimidation and
suppression arm of it. But there are other components that
handle those issues.
Mr. Davis of Alabama. Well, does that mean that you don't
know the answer to the question? Do you know if there are any
pending indictments or if there have been any pending
indictments in, say, the last 4 years against ACORN or its
members at the Federal level for registration activities?
Ms. Becker. I am aware of one guilty plea involving ACORN
employees attempting to defraud the ACORN organization.
Mr. Davis of Alabama. Was it in connection with voter
registration?
Ms. Becker. Yes.
Mr. Davis of Alabama. Now, my understanding is that--I am
frankly not familiar with that instance. I know of one instance
where there was an indictment that was brought after the 2004
election. My understanding is that it was at the Federal level.
My understanding is that that indictment was dismissed; and
very unusually, it was dismissed with prejudice, meaning that
the government couldn't come back and bring back the claims
again.
So I simply want to make that observation, given the
consistent references to ACORN today.
But I want to move to another line of questions. Professor
Benson talked at some length, Ms. Becker, about allegations
regarding, I believe, the state of Michigan. And regarding
efforts in Michigan to prevent people who may have been
foreclosed from casting a vote. When you hear Professor
Benson's testimony, what is your reaction as someone who is in
charge of enforcing the voting rights laws? Does that send up a
red flag for you, people trying to limit the vote for folks who
have been foreclosed?
Ms. Becker. If those allegations were true, that would be
something that would be of concern to us in the Civil Rights
Division. I notice that foreclosure doesn't necessarily mean,
you know, that somebody is no longer living in their particular
home. It doesn't necessarily mean that they have been evicted
or the home has been repossessed. And so that is something that
we would want to continue to monitor closely.
We would be focused primarily on two areas in the Civil
Rights Division. If that information is being used to challenge
voters at the polls in a discriminatory fashion on the basis of
race, color, or because they are in a language minority group,
that would be something that we would be looking for.
We would also be concerned if they are using those lists to
improperly remove voters from the voter registration lists to
the extent they may implicate some of the statutes that we
enforce here in the civil rights----
Mr. Davis of Alabama. You note that you are concerned about
it. There have been various newspaper reports, and you have a
live witness who is here today who appears to be knowledgeable
on the question. What steps is the Department of Justice, your
particular division, taken since you have heard about the
issues related to foreclosures?
Ms. Becker. My understanding of the testimony, and
Professor Benson probably can confirm this, is that there was
media reports expressing an intention that was denied. There is
an allegation that a statement of intention was made, and then
there is a strong statement of denial--so we are continuing to
follow the situation very closely as we approach Election Day.
This is a very important issue. But at this point, we are
proceeding very carefully and cautiously.
Mr. Davis of Alabama. Well, I would certainly, and I think
this Committee, or at least this side of the Committee, would
encourage your vigilance. The fact that there is denial--I
don't spend all of my time reading the newspapers to see what
people say when they are accused of a crime, but I think 99
percent of the time the denial is what you hear before the
facts are adduced.
The second set of questions: there was extensive reporting
in the metro Washington-Virginia area about erroneous
information given out by a Virginia registrar which suggested
that college students could, if they voted in Virginia, their
parents could lose their ability to claim them as a deduction,
that they could lose their financial aid. You are aware of
those news reports, I assume, Ms. Becker?
Ms. Becker. I am.
Mr. Davis of Alabama. Does that concern you?
Ms. Becker. That is also something that has been a concern
to the Civil Rights Division.
Mr. Davis of Alabama. And what steps have been taken based
on that concern?
Ms. Becker. The rules determining when college students can
register to vote in their particular jurisdictions vary from
state to state. And certainly, as we heard from the first
panel, there has been some action taken at the local level or
the state level to address this situation. But it is primarily
a state law matter as to whether or not those students can
register and whether or not they are being improperly----
Mr. Davis of Alabama. Well, it is a state law matter----
Ms. Becker [continuing]. Based upon residency.
Mr. Davis of Alabama. It is a state law matter, but the
Voting Rights Act obviously covers state law.
Ms. Becker. Yes. And our concern here would be a law
exactly along those lines, Congressman Davis, in that if it
implicates one of the statutes that we enforce; if we are
seeing that these allegations are resulting, for example, in
improper rejections of voter registration lists in violation of
one of the Federal statutes that we enforce, that may be
something that we would be very interested in looking at
closely.
So we are closely monitoring these reports as well to see
if there is appropriate jurisdiction and action for us to take
in civil rights.
Mr. Davis of Alabama. Ms. Becker, we are both over our
time, but if I can ask the indulgence of my friend from
Arizona, and I will extend him an additional minute as well.
What you just said triggers the last question I want to pose to
you.
On the DOJ website, there is a question and answer section.
The question is, what responsibilities does the Justice
Department have with regard to voter fraud or intimidation? And
the answer on the website says, ``In some exceptional cases
where voter fraud or intimidation involving racial basis occurs
in local or state elections, Federal criminal charges may be
brought by the criminal section of the Civil Rights Division.''
I understand that you don't run that division, but help me
understand what that means, ``some exceptional cases.'' Because
my understanding of the statute is that the statute confers
upon the Department of Justice jurisdiction involving voter
fraud or intimidation involving racial bias in any local or
state election. I don't think it delineates between the
exceptional and the garden variety. So tell me what exceptional
means.
Ms. Becker. I don't have the Web site text in front of me.
But my understanding is as I have testified, which is that
voter fraud prosecutions, criminal prosecutions, are handled by
U.S. attorneys' offices around the country in consultation with
the criminal division. We have limited criminal jurisdiction in
voting matters related to voter intimidation and voter
suppression when race, color, national origin or religion are
implicated. And that is set forth by regulation in 28 C.F.R.
section 0.50 and 0.55.
Mr. Davis of Alabama. So your position is that
``exceptional cases'' refers to cases involving racial bias,
and there is not some separate class of cases.
Ms. Becker. None that I am aware of.
Mr. Davis of Alabama. Okay--before drafting.
Let me yield to my friend from Arizona, the Ranking Member.
Mr. Franks. Well, thank you, Mr. Chairman.
And Mr. Chairman, in all sincere respect, I want to address
one of the questions you had asked related to a Federal
indictment pending. Most of the indictments or potential
indictments or investigations or pending indictments that I was
referring to in my opening statement would probably be pursued
or probably are being pursued on the basis of state law. And I
think that that is an important consideration.
Ms. Becker, the Pew Center for the states' military and
overseas citizen voting project just released a report
confirming the fact that military voters cast votes at roughly
half that of the general population. Eighty-six percent of the
general population who request absentee ballots actually cast
those ballots. But only 26 percent of military personnel who
request an absentee ballot cast their ballots. Very clearly,
those members of the Armed Forces who want to vote--they
obviously want to vote--but they are not able to due to the
tragic shortcomings in the system of ballot delivery.
And that has got to change. It is a tragedy. So how do you
suggest that Congress go about changing that injustice?
Ms. Becker. Congressman, thank you for that question. You
are raising a very, very important issue. As someone who has
worked in the Pentagon and as a civilian for the United States
Army and for the Department of Defense, I think that this is a
very important issue. I can tell you that the enforcement of
that statute, the Uniform Overseas Absentee Voting Act, UOCAVA,
is shared between the Department of Defense and the Department
of Justice.
Our role in the Civil Rights Division is to ensure that
states are getting adequate time for sending out the absentee
ballots to our men and women in uniform overseas, as well as
overseas citizens, and providing enough time for it to come
back. Just in the last week I have approved two UOCAVA
lawsuits, and we are working with the jurisdiction to try to
resolve those issues. This is a time period where we work very
actively in that area to make sure that there is adequate time
well before the election.
Some of the issues that were raised by Mr. O'Leary are very
important issues. Those are issues that fall within the
jurisdiction of the Department of Defense, and I have shared
those concerns with the Department of Defense.
Mr. Franks. Thank you very much, Ms. Becker.
Mr. O'Leary, maybe I can turn to you. First of all, thank
you for your service. I know that individuals such as yourself
don't go out into wars to fight because they hate what is in
front of them. They do so because they love what is behind
them. And I honor you in every way, sir.
As Election Day approached in 2004, there were stories
circulating about parents of Service members calling campaign
headquarters on Election Day to complain that their son or
daughter wanted to vote in the election, but had not received a
requested ballot. In your opinion, is the Department of Justice
doing enough to monitor the Defense Department's efforts to
make sure that those dedicated servants who are serving our
country and their families have every opportunity to vote by
absentee ballot in a timely manner to ensure that their votes
count?
Mr. O'Leary. Thank you, Congressman.
First of all, I would be remiss if I didn't applaud the
DOJ's work to hold the states accountable. Unfortunately, I
mean, you really have a broken system, and we need to hold the
Department of Defense accountable. You know, we have made it so
that this broken system can be in effect where there are
different rules and different requirements in every state.
For years, the Department of Defense has said it is going
to take 45 days. Ballots need to be sent 45 days prior in order
to get there on time. And we haven't changed anything. The
Department of Defense is not facilitating it this year. There
were two amendments on the National Defense Authorization Act
on the Senate side that failed to get a vote to expedite
ballots coming back.
But you know, when we say over and over again that it takes
45 days, and there are still states that aren't printing and
sending their ballots until October, and at the same time the
military postal service is saying the ballots need to be sent
from Afghanistan or Iraq on September 30th, we have a problem.
We have a civil rights issue, and it is a civil rights issue
that is worth litigating over.
Mr. Franks. Mr. O'Leary, I guess my last question--
obviously, this has got to affect everyone on the Committee. I
know, and I am just going to be--there is a pink elephant in
the room, and that is a lot of the military favor Republican
candidates. And certainly that may be part of my motivation
here.
But the ultimate, and the deepest motivation here, is to
see those people who, rather than talking about freedom as we
do on this panel, are going out and giving their lives to
defend it. And if they don't have the opportunity to vote, it
just seems like it is a disgrace to the entire system. So if
you could say any one thing that you could do, to encourage
Congress to do or the Department of Defense to do, what would
be one thing that you would do to try to solve this issue?
Mr. O'Leary. Well, I would urge Congress to call on the
Secretary of Defense to immediately ensure that military
ballots get urgent handling. Now, if that takes contracting
with FedEx or UPS to get overnight shipment of those ballots
back from theater, you know, then that needs to happen. Whether
the--and frankly, one of the problems with that on the Senate
side is the postal unions that didn't think that was a good
idea. Well, you know what? I think our troops should take a
higher priority than the postal unions.
Mr. Franks. Well, thank you, sir. Thank you for your
service, and thank you, Mr. Chairman.
Mr. Davis of Alabama. Thank you, thank you.
Our next questioner will be the distinguished Chair of the
full Judiciary Committee. Before I recognize him for questions,
I simply want to make one quick addition to my friend from
Arizona's comment. I will remind us of Al Gore's excellent
example in 2000, when he had an opportunity on a closely
contested election to challenge military ballots. He and his
running mate declined to do so, and I want to make sure the
hearing doesn't conclude without saluting them for that.
Mr. Chairman, I will leave the next question to you. They
have just called a vote. If you would like to proceed, or if
you would like us to recess now, and we can come back and you
can pick up the questions after vote?
Mr. Conyers. Oh, I will start now.
Mr. Davis of Alabama. Okay. The Chairman is recognized.
Mr. Conyers. Did you say that you commended him for not
challenging the ballots?
Mr. Franks. I commended him for doing that. There was no
insult intended at all.
Mr. Davis of Alabama. I certainly meant to commend him, Mr.
Chairman.
Mr. Conyers. Well, I am not so happy that he didn't
challenge the ballots. I mean, why are we so--I have to talk to
both of you Members after this hearing.
But anyway, we are all here to learn.
This may be one of the most important hearings that our
Committees together have ever had. The recent history of voting
problems is legendary.
Ms. Becker, you are in the one place in the Department of
Justice where we can take care of that. And you have been
before us, I believe this is your third time? Remind me, how
long have you been in this position?
Ms. Becker. I have been with the Civil Rights Division
since March of 2006, and I have been acting since December of
2007.
Mr. Conyers. Yes. Now, have you ever heard of Professor
Spencer Overton?
Ms. Becker. The name doesn't ring a bell.
Mr. Conyers. Okay. Have you ever heard of Mark Crispin
Miller?
Ms. Becker. No.
Mr. Conyers. Okay. Well, we don't have much time, because
Mr. Overton has written extensively on the subject which brings
us here today. I think his most recent book is ``Stealing
Democracy: The New Politics of Voter Suppression.'' And just to
make sure that you start on it right away, we are going to give
you a copy of it. Well, I suppose I should loan you a copy,
since we bought it with the government resources. Please.
Ms. Becker. I would be happy to purchase a copy.
Mr. Conyers. No, I can loan you a copy, it is all right. I
trust you. [Laughter.]
Now, the other book is Mark Crispin Miller's ``Fooled
Again.'' And that is about the same subject.
Now, we agreed before the Committee hearing with
Congresswoman Zoe Lofgren--and I would like to add any of our
colleagues of the two Committees that want to join us--we were
going to meet extensively on this subject. We asked to have the
Department of Justice staff meet to with the Judiciary
Committee staff because there is a certain amount of
artificiality about the hearings. They are formal, they are
stilted, there is a 5-minute rule, digressions, and votes.
And there is a lot to be said when you have two branches of
the Federal Government trying to improve the voting system. We
are almost walking distance apart. Why can't we meet more
frequently, without the stenographer and television, and all
that?
So I would like for us to meet more frequently, especially
since we are not happy with only two or three markedly
insufficient meetings between staffs.
Now, you are not responsible for all the problems that the
Committee has with the Department of Justice. But we are all in
this together--that is the way I feel about it. I do not want
people after November 4, saying, ``Why didn't the Department of
Justice do this, that or the other thing?'' They are going to
say, well, what was the Judiciary Committee doing? And what was
the House Administration Committee doing with a whole
Subcommittee on Elections?
Everybody on both Committees wants to facilitate the vote.
We want to create openness. We want to provide security. We
want to improve the Armed Services' participation. We want to
preclude fraud. There is a whole range of activities--and I
know pro bono groups and non-profits have the same goal.
Now, this is a democratic system. What is to prevent all of
us from working very closely together over and above the
Committee hearings, of which there are not likely to be any
more, to work together toward this great goal of ensuring the
integrity of the voting system in perhaps the highest voter
participation in the history of the country? In many ways, it
is a momentous election.
I understand that Chris Coates is here today.
Ms. Becker. Yes, sir.
Mr. Conyers. Is that right? Who is Chris Coates?
Ms. Becker. Right behind me.
Mr. Conyers. Dozens and dozens of problems have been
raised. Some have been adequately responded to. But I liked
what the gentleman in the first panel said: we are not seeking
perfection. All we want to do is make it as efficient as
reasonably intelligent people can make it.
So I would like to enlist not only Ms. Becker, who has
already agreed to this, but all of our panelists. We need to
get the election system on track. There are some things we
can't do. Unfortunately, we can't increase the funding to the
level that it should be. I wish we could.
But given other than that, we will need to work together as
well as we can.
In closing, Mr. Chairman, I feel better today than I did
after the last hearing we have had about elections. I mean,
they were not very pleasant at all. It seems to be that we are
up to speed now. So I want to commend you for Chairing the
Committee and giving me as much time as I needed to get this
off my chest.
Mr. Davis of Alabama. Mr. Chairman, you always have as much
time as you want.
We are going to kind of figure out our housekeeping a
moment, Ms. Becker. But before I do that, I want to make one
other observation. I think I asked you about a question of a
Web site, and I think you clarified to me what you mean the
language to say. I want to ask you if, I will have the staff to
give you a copy of this. Because at a minimum, we have a
reference to an exception, in front of a clause, in front of a
subjunctive reference to ``may.'' And no matter where you are,
that can raise confusion. So it is certainly not the most
elegantly drafted sentence I have ever seen, and I will ask you
to look at changing this section that I reference so it says
what you mean it to say.
And we have approximately 7\1/2\ minutes left on a vote.
Mr. McCarthy, my friend from California, assures me that he
will take less than 5 minutes, so I recognize him.
Mr. McCarthy. Thank you, Mr. Chairman.
My comment is to Mr. O'Leary. Because what you raise is one
to me, very, very important. We had a hearing in House
Administration. And I have a bill up and the companion bill
over in the Senate side, Senator Cornyn, as well. What it does
is exactly what you recommend: that contract out and allow,
where it would be traced delivery back and forth. We send stuff
across this country, around the world. You go on the internet
and see exactly where it is, you know where it is located. And
I believe that would be a very good answer going forward.
And I would like to work with you in the future on how to
get this through, because we had a hearing on it. I think there
is some opposition on the other side because they are afraid
somebody who might win the contract might not be union. And I
would rather just see the men and women have the right to vote.
But I appreciate your service, and--if the Chairman would
indulge, I would just yield any time left to my colleague from
Ohio.
Mr. Davis of Alabama. Mr. Jordan, you are recognized. I ask
you to be mindful of the fact that we have 5 minutes left on
the vote. So I assume you intend to be extremely brief so we
can all go vote.
Mr. Jordan. Mr. Chairman, can I come back, then, after the
vote?
Mr. Davis of Alabama. Yes, certainly.
Mr. Jordan. I appreciate the gentleman yielding. Thank you.
Mr. Davis of Alabama. Thank you.
We are going to recess the hearing. We have approximately 5
minutes left in the vote. The hearing will resume after
approximately 25 minutes of real time, as we have about three
votes.
Hearing is recessed.
[Recess.]
Mr. Gonzalez. [Presiding.] Going to call the Committee
back. Reconvene at this time. I know we have maybe a couple of
witnesses that will be walking back in, so we will wait for
their arrival. But I can at least tell you what the afternoon
holds for you and that will be just a couple of us here. There
may be others that will be filtering in.
But we do appreciate the patience that you have shown, and
your testimony is important. And as you are aware, your written
statements are made part of the record, as well as your
testimony this morning, your responses to the questions.
Mr. Gonzalez. At this time the Chair is going to recognize
my colleague, Mr. Jordan, from the great state of Ohio. And I
want you to know that I was pulling for the Buckeyes against
USC, it just didn't turn out that day.
Mr. Jordan. Sure didn't.
Mr. Gonzalez. And of course, we will welcome back Professor
Benson when she arrives. But I have been told that the question
being posted by Mr. Jordon is not to Professor Benson. So
accordingly, we will proceed at this time.
Mr. Jordan. I thank you, Chairman. I want to thank our
witnesses for coming today and for your service, particularly
Mr. O'Leary, for your service to our country.
My question is actually going to go--I am going to go to
Mr. Hancock and Mr. Terry.
And I will start with Mr. Terry. I want to just highlight
what Ohio is planning on doing, what our secretary of state is
planning on doing. And this was raised in the first panel, when
we had someone from the Ohio secretary of state's office here.
But starting next Tuesday, you can begin to vote absentee. No-
fault absentee we have in Ohio.
And you can also, our law requires you register 30 days
prior--be registered, you know, the typical thing to be a
qualified elector. So there is going to be a 1-week window of
time where our secretary of state has said that she is going to
allow registration and voting--same-day registration and voting
for this week time period starting next Tuesday and going
through October 6th.
I believe there is a real potential for mischief and
problems there. I want to get your thoughts, what you think
about that possibility. And the ability to make sure that we
have fair elections, make sure that we have qualified voters.
To make sure it is fair.
And I am actually--I would like to, when I look at Mr.
Hancock's testimony, he had a few sentences in bold print.
Presidential elections simply are not a re-run, you can't do
them over. He talked about the central problems must be
identified and resolved prior to Election Day.
And we have heard--we know this is going to be a record
turnout election. So with all that in play, I can't figure out
why--and I think our law is clear that you shouldn't be able to
do this, but nevertheless, that is the decision of our
secretary of state. I would like your thoughts on that.
Mr. Terry. I am certainly not an expert on Ohio elections,
but I think any time that you have a loophole or at least an
apparent loophole of that size or that kind of an overlap, it
should be concerning. But I think from the respect of ACORN and
perhaps similar groups, what would be even more concerning is
the size of their effort.
If you look at--you sort of asked a question, you know, how
much damage can be done in a 1-week time. You are looking at,
you know, they have already produced hundreds of thousands of
registrations in the state of Ohio. And have, you know,
hundreds if not thousands of individuals on the ground. And I
think that you would want to look at--you would hope there were
certain controls within their organization and controls within
the state of Ohio to sort of prevent that overlap. But I think
it is a sizable loophole and the size of the operations that
are going on out there should be of great concern.
Mr. Jordan. It seems to me that, you know, once that vote
is cast and it is in the form that they keep it at the board of
elections, they are going to have this huge turnout, it is
going to be tough to really thoroughly check and make sure this
individual was in fact a qualified voter.
And we all know what happens on election night. Count the
vote, count the vote. We haven't thoroughly checked, count the
vote. And I think there are real problems.
Mr. Hancock, I would like your comment.
Mr. Hancock. I would just point out that the Voting Rights
Act eliminated residency requirements for voting, and the state
laws that you talk about were all enacted in accordance with
that. And basically the structure is, people who were properly
registered and move shouldn't be denied the right to vote. So
they can either vote at their new location or their old
location, depending on the timing of when they moved. And that
30-day requirement is the Federal standard that they use. As
long as they are there 30 days before the election, they should
be entitled to register and vote.
And if it is shorter than that, they can vote where they
were before. So it is, there are--I share your concern about
what happens on Election Day, and there is going to be a lot of
confusion on Election Day. And I reiterate what I said before.
I think we best will have a fair election if we try to address
these issues before Election Day rather than trying to address
them on the day of the election.
But I do think that on the day of election, that it is
important under the new Help America Vote Act that there will
be a master list of all registered voters and where they should
be voting, the precinct that they should be voting at. And a
provisional ballot should be a last resort, not the first
resort, but only the last resort. The first step that should be
made would be to look at that polling list to see if the people
are not on the list of the precinct where they showed up, then
are they properly registered in another precinct, and they
should be directed to that precinct before they are given a
provisional ballot.
And I think the Department of Justice can play a role in
this, just as it did with us in Florida when I was with the
attorney general's office. The department at that time was very
active in making sure that as we implemented the new
provisional voting procedure, that we would do it in a way that
tried to make sure that people were properly registered. But
let's not--this is a presidential election, and in many
respects it shouldn't matter what table you go to. You are
entitled to vote for president if you are properly registered..
But we don't want their vote nullified just because they
went to the wrong precinct. And the department was very tough
on us in Florida at the time when I was with the state, to make
sure that we were going to do that right. And I would hope the
department does the same thing with other states.
Mr. Jordan. Thank you.
Thank you, Chairman.
Mr. Gonzalez. Thank you very much, Mr. Jordan.
At this time, the Chair is going to recognize the
Chairwoman of the Subcommittee on Elections of the House
Administration Committee, Zoe Lofgren, of the great state of
California. But Zoe I need to remind you all, in the year 2005,
the Texas Longhorns beat both Ohio State and USC. Actually, it
was 2006 in the Rose Bowl.
Ms. Lofgren. USC is in a different state--in southern
California. [Laughter.]
Actually we no longer have hostilities between north and
south in the state of California. Although at one time, that
did exist.
I am interested in what the Department of Justice is going
to do between now and Election Day. We had a chance to talk
briefly informally before this hearing began. There were a
number of problems in the 2008 primaries that emerged. We know
the problems that occurred in 2004, and I think it is wise for
us to assume that some of those problems could present again.
Director Mueller from the FBI was before the Committee, I
think it was last week or earlier this week--time flies at this
point in the congressional session. And Ms. Waters asked what
the FBI was doing to investigate violations of the Voting
Rights Act. I mean, we have--I have a couple of lawyers on the
Elections Subcommittee staff. You have the entire FBI to find
out about wrongdoing.
He didn't seem to know what they were doing on this. Can
you tell us?
Ms. Becker. Thank you very much for raising that important
issue on the Voting Rights Act.
The FBI is certainly an important partner of ours in our
criminal investigations, both in the criminal division of the
Justice Department and when there are specific civil rights
crimes that occur on unrelated voting or on civil rights
crimes. The Voting Rights Act is a civil statute where we do
not utilize the FBI. Our investigations of the Voting Rights
Act are----
Ms. Lofgren. If there were a RICO conspiracy, wouldn't that
be a problem?
Ms. Becker. If there are criminal--if there are criminal,
if we observe any indicia of criminal, we can certainly make a
referral. And that is something that is within our jurisdiction
to do.
With respect to the Voting Rights Act, we have filed a
number of lawsuits which are set forth in the written statement
that I have provided to the Committee on the Voting Rights Act.
In addition, we have done training to officials in all 93 U.S.
attorneys' offices. We will be at their offices on Election
Day, so that when they receive calls about potential violations
of the Voting Rights Act, they will be able to direct it to the
Civil Rights Division.
We have done outreach with both state and local officials
and with civil rights organizations to inform them about the
statutes that we enforce----
Ms. Lofgren. But let me just ask you--what about 11(b),
isn't that a criminal statute?
Ms. Becker. 11(b) of the Voting Rights Act is a civil
provision that prohibits voter intimidation. There are criminal
statutes that also prohibit voter intimidation--for example, 18
U.S.C. section 594 might be one potential statute that would be
enforced by the criminal section of the Civil Rights Division.
Ms. Lofgren. Let me ask you about what we might do before
Election Day. I will just recall that in 2005 Hans von
Spakovsky wrote to the secretary of state of Arizona, which has
a very strict voter ID law, that for those who did not have ID,
that they did not have to offer a provisional ballot.
Well, that wasn't true. I mean that was wrong advice that
Mr. von Spakovsky volunteered to the department. It later had
to be retracted, but it did cause confusion and may have
suppressed--you know we don't know what the impact was. It
certainly wasn't a positive impact in terms of----
Are opinion letters going to go out unsolicited from your
department? And how are you going to make sure that the advice
given is correct and nonpartisan?
Ms. Becker. Congresswoman, I think it is very important for
us to inform the jurisdictions of the statutes that we enforce.
I have sent out letters on, for example, the Uniformed and
Overseas Citizens Absentee Voting Act, because there are
certain timeframes where they need to get those ballots out 45
days before an election. So those letters have already gone
out.
I intend to send another letter to state and local election
officials to talk about the statues that we enforce, including
the language minority provision of the Voting Rights Act, which
has been raised by other panelists here, as well as other
issues involving the wide variety of statutes that we enforce
in the Civil Rights Division, so that they know what the
Federal law requires.
Many of them are very experienced. They have worked with us
in the past, or they have been sued by us in the past. And
hopefully, that will help inform some of their decision making
also.
Ms. Lofgren. Now, the attorney general has told civil
rights groups that having a smoothly running election that did
not violate the civil rights of Americans was a very important
top priority for him.
And as we have discussed before the hearing, I am concerned
that some practices that have been engaged in have had not only
the effect, but clearly the intent of suppressing or
disenfranchising minority voters, specifically vote caging
programs that target neighborhoods that are minority--primarily
inhabited by minorities.
What is your department doing to stop that?
Ms. Becker. There are four different things that we can do
in the Civil Rights Division when we hear about allegations of
vote caging.
If these vote-caging lists that are compiled are being used
to challenge voters at the polls in a fashion that is racially
discriminatory, then that is certainly something that we can
bring a lawsuit under the Voting Rights Act.
In addition, if those lists are being used to improperly
remove voters from the voter registration list, that may be
something that we can look at under the National Voter
Registration Act, which under the NVRA the way they set forth
specific criteria in terms of when voters can be removed.
And if you look at five of the eight cases that we have
brought under Section VIII of the NVRA to ensure that voters
who should be on the list are on the list either because
jurisdictions have allegedly improperly removed them or failed
to include them when they should have included them.
Ms. Lofgren. But let me ask you this. If I don't know what
kind of investigative effort is being made by the department.
But we have had in past years ample evidence of vote caging
efforts that were directed entirely to African American
neighborhoods.
Do you think that is proper?
Ms. Becker. And the other thing that we can--well, what we
can do if we find about these allegations before Election Day,
we can send monitors and observers out to the polls.
Ms. Lofgren. But what are you going to do to stop the
process, the racially motivated process of suppressing African
American votes?
Ms. Becker. Oftentimes our presence at the polls on
Election Day will ensure that those lists are not used at the
polls. We work with state and local election officials.
Oftentimes they have cured the problem when they hear about
allegations of vote caging as well. We----
Ms. Lofgren. Have you considered suing to enjoin a process
that is racially motivated and discriminatory such as that?
Ms. Becker. If it would come----
Ms. Lofgren. I mean you are lawyers. You are full of
lawyers.
Ms. Becker. If one of the Federal statues that we enforce
are implicated, we certainly are prepared to take any
appropriate action.
Ms. Lofgren. I see my time has expired, Mr. Chairman. I
thank you.
Mr. Gonzalez. Thank you very much, Ms. Lofgren.
The Chair is going to recognize himself for a couple of
questions quickly, and I am going to ask the same question of
each of you, but I am going to ask for a yes or no, whether you
agree with me or not.
I believe that the greatest impediment or challenge to
conducting fair elections, robust elections, and efficient
elections in this country would be the following, as far as the
hierarchy of concerns.
First and foremost would be the logistics of conducting the
election and all that that would entail, from the polling place
to the machines to the ballot, including ballot design, and
then of course personnel, the proper training and competent
personnel.
Next, I imagine a great impediment is going to be voter
intimidation and rules and such that make it so hard, so
complex, and the misreading of those rules and such that deny
people.
And then the ugly kind of disenfranchisement that some of
my colleagues have referred to such as the caging, the
intimidation that was referred to in the written testimony by
Mr. Lewis of the poll watchers appearing to be officials when
they are not.
And lastly, but of concern, and which has been brought out
prominently in today's hearing, is going to be the potential
for fraudulent registering--and I use that word very
carefully--registering of votes--not necessarily the casting of
the vote, but just voter registration and fraud.
Do you agree with my analysis that that would be the
hierarchy of impediments and challenges to the way we conduct
elections today in attempting to achieve fair, robust and
efficient elections? Simply yes or no.
Obviously, you know this is the lawyer question where you
just want a yes or no, and I appreciate your patience with
that.
And I will start with Attorney General Becker.
Ms. Becker. I think they are all very important concerns,
Congressman Gonzalez, and I wouldn't be one to categorize any
of them, but I think they are all very, very important.
Mr. Gonzalez. Well, but you are. And let me explain why.
You have limited resources. Where would you apply those limited
resources?
If you were a doctor and someone came into the emergency
room that had a serious head wound, serious chest injury and a
hangnail, would you be getting all of your resources to treat
the hangnail? No.
And that is our responsibility as elected officials, as
well as individuals in the different departments and agencies.
Mr. Hancock, your own experience?
Mr. Hancock. Yes, I would say that that is a pretty
comprehensive list, and I wouldn't quibble with it.
I would say for this oversight hearing, however, that
focuses on the voting section in the Voting Rights Act, that
suppression of minority voters is a very important issue in
this election. And in the previous talk we hear racial animus
is not a necessary element of a claim under the Voting Rights
Act.
If people are targeted because of their race, the design
may be to achieve a partisan political objective, but it still
implicates the Voting Rights Act.
And my friends in the department have always been put in a
difficult position of enforcing the act when it might be viewed
as having some partisan results.
We heard today about how overseas voters--military voters--
might be more apt to vote Republican. That doesn't have any
impact on how that law should be enforced.
We have heard how efforts to challenge suppression of Black
voters might benefit the Democratic candidate. That is not a
factor in deciding whether the case should be brought.
If there are efforts to suppress voters in violation of the
Voting Rights Act, the department has an obligation without
regard to politics to pursue those violations.
Mr. Gonzalez. Right.
Mr. Hancock. And I think your waterfall of issues is valid.
Mr. Gonzalez. Thank you.
Ms. Narasaki?
Ms. Narasaki. I very much agree with your hierarchy of
issues. And it strikes me. I am very excited because there is
so much excitement among immigrant Americans, who have worked
hard to be able to meet the requirements of citizenship and
will be voting for the first time.
And anybody who has had the opportunity to see someone be
able to exercise for the first time the true mark of being a
citizen in the U.S. has to be concerned about whether that
person will be able to exercise.
And as you know, as a minority you are never really--you
can never really take for granted that you will be welcomed at
anywhere you go at the polls.
And I think that the heated debates about immigration are
going to make it very challenging for many of these new
immigrants to vote. And I am very concerned that their first
experience would be one where they are made to feel not
welcome.
Whether it is because of intentional intimidation or
confusion, lack of training, I think all of those things would
be quite a shame for this Nation.
I do find that the allegations of voter fraud are very
overblown, and there are some very good studies that I would
like to submit to the record, if possible. One is called ``The
Myth of Widespread Non-Citizen Voting,'' which was done by
Truth in Immigration, which is a project of the Mexican
American Legal Defense Education Fund.
And the other is the Brennan Center for Justice, ``The
Truth About Voter Fraud,'' which documents, in case after case,
that when you are talking about really a handful of votes, a
handful of registrations, that really does not impact the
election, the issue of minorities who are made to feel
unwelcome and unable to really cast their vote, that will be a
legacy that will hurt us for years to come.
Mr. Gonzalez. Okay. Miss Narasaki, let me clarify
something. You have something that you want to submit for the
record. Is that correct?
Ms. Narasaki. Yes, sir.
Mr. Gonzalez. Okay. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Mr. Chairman?
Mr. Gonzalez. And then I will yield to Ms. Lofgren at this
time.
Ms. Lofgren. I, unfortunately, had to have a meeting with
the speaker, which prevented me from being here to receive the
testimony, although I have had a chance to read it.
And I was so anxious to ask Ms. Becker the questions that I
asked that I didn't have a chance to say thanks to Karen for
being here all the way from--you know she does wonderful work
not only in California, but throughout the United States.
And it is a pleasure to see someone from home who is here.
And I just neglected to say that.
And I also did want to--I am advised by counsel that 11B of
the Voting Rights Act, although in the civil section, is
actually a criminal statute.
So I think we should find--you know get to the bottom of
that. I don't want to get into an argument here today, but
maybe we can pursue that and reach a conclusion together on
that point after the hearing.
And I thank the gentleman for your----
Mr. Gonzalez. You are welcome.
Reclaiming my time, Mr. O'Leary, I know you are not here to
give maybe this kind of opinion, but I think you have had
enough experience with logistics and how we do things.
But I want to make one comment. I appreciate everything
that you are doing. You are now a resource in my book with my
staff, because we are getting responses from DOD and others
that are not satisfactory as to why we can't start doing some
voting projects and pilot projects with the military overseas
via the Internet.
So I will really welcome some of your input.
But do you have an opinion on my question that was posed to
the panel?
Mr. O'Leary. I appreciate that, Mr. Chairman. And I would
agree that the points that you brought up are in order, and the
five points are important.
I am not going to quibble one or the other about
priorities. But really I think you know fundamentally what this
gets down to is a matter of will to do the right thing for the
country, thinking long-term and not thinking in terms of what
our partisan benefits are going to be if one group--you know if
we work for one group or work for another group, we need to
think to the long term to the good of the country.
And I would hope that Congress has an attention span that
goes past the November election.
Mr. Gonzalez. Just keep reminding us. That is----
Mr. O'Leary. Thank you, Mr. Chairman.
Mr. Gonzalez. Mr. Terry?
Mr. Terry. Yes, sir. I certainly agree with the list. I
think that they are all perhaps equally important, because I
think they are probably very interrelated. And it takes all of
them to come to what I think we have all agreed that the goal
is that of fair elections.
And if you take, for instance, the voter registration
component, I think you can see where it will affect every other
item on your list.
The logistics--if you are talking about in cases where you
are talking about 27,000 potentially fraudulent--or erroneous
even--registrations, the logistics of trying to deal with that
at the polling place on Election Day, the personnel it takes to
do that.
Certainly on the voter intimidation, manipulation of
registrations is sort of the core element of the caging of
this.
And I think they are all equally relevant and should be
addressed to achieve a fair election.
Mr. Gonzalez. And I would agree with you conceptually. The
problem is, to the degree and the extent that you have any of
these factors actually existing, not just the potential, but
the reality.
And so I am saying we need to be dealing with the reality.
And I want to go on with the--Professor Benson?
Ms. Benson. Thank you. I believe in data driven decisions.
And based on that, anything that blocks any eligible voter from
voting and disenfranchising them is a problem.
And to your list I would add in that regard voter education
and clarity, which I believe is the responsibility of the
government to ensure that every voter is aware of her rights.
In that case, if they arrive at the polls and they are
intimidated or told that they can't vote, that they are aware
that they can and they are able to produce any necessary
evidence to ensure that they vote.
So I would add voter education on the qualifications of
voting and the requirements on Election Day where the polling
place is.
And I would emphasize that I do believe it is the
responsibility of election officials and the government
generally to ensure that every voter knows how to vote.
Mr. Gonzalez. Thank you very much.
Ms. Clarke?
Ms. Clarke. The one thing that I would add to that list is
the failure of a lot of states to put in place a contingency
plan for the problems that we know are going to happen, are
going to emerge on Election Day.
We have got to be prepared to put in place a Plan B for
when Plan A fails us. We have got to be prepared to turn to the
courts to get orders to extend poll hours or order the release
that is necessary that will make sure, make certain that every
voter gets to cast a vote that counts on Election Day.
So I am concerned about the lack of contingency plan and
emergency plan in a lot of states.
Mr. Gonzalez. Thank you very much.
At this time I do want to inquire. I know that the Chairman
of the full Committee of the Judiciary is here--if he has any
further questions or observations before we wrap it up.
Mr. Conyers?
Mr. Conyers. Yes. Thank you very much. I want to thank you
for all of your work. I think it was quite productive today.
And of course I am indebted to the witnesses for their
stamina, first, and their contributions, secondly.
A couple of things occur to me. The rhetoric that comes
from the symbolic and actual importance and significance of
voting can really get quite remarkable. I mean everybody agrees
it is important, sacred, the basis of a democratic
representative government.
What I wanted to ask as we close, do any of you have any
recollections of the history of voting in America? I mean it is
not the most beautiful picture you would want to teach young
people that are going into the--that are looking at the voting
process.
This election is marked for the young people that have been
brought into and caught up in and engaged in the electoral
process in numbers never before recorded.
But there are a long list of unsavory incidents in the
history of the electoral process in America. Does anybody
remember them besides me? Not that I was there, but I have been
around for a little longer than most everybody in this room.
But using the Gonzalez technique, let us go down the row.
What do you think, Ms. Clark? We are talking about the history.
To come into this without any full knowledge of what has
gone on before can leave you in a rather elevated aspiration or
keep hope alive mode that belies what has been reported as the
true history of voting in America.
Ms. Clarke. During your remarks I was reminded of Bloody
Sunday and folks who marched across the Edmund Pettus Bridge in
Selma, Alabama, and who fought and gave their lives to see that
all citizens in our country have the ability to exercise the
fundamental right to vote.
So we at the Legal Defense Fund continue to fight and will
continue to fight and expect that the others here on the dais,
including the Justice Department, will do everything in its
power to make sure that all voters can cast their ballots in
November.
Ms. Benson. I thank you for reminding us of the very
important history that came before all of us. I am a former
resident of Montgomery, Alabama, and spent some time--a lot of
time--in Selma. And so I in fact every March would go, when I
was down there, to the bridge and take my students down there
every March now to go to the bridge.
So I think it is crucial to remember that. And back to what
I was saying with regards to election administration, I do
fully believe in data driven decision making with regard to the
priorities for election administration.
And I believe in historical data as well. In that regard I
think voter intimidation and any ongoing efforts to
disenfranchise any voter needs to be taken in light of the
context of history and the way that seemingly innocent policies
in the past have been used to disenfranchise voters,
particularly historically to disenfranchise populations like
African Americans and Latino voters and voters of Asian descent
and Native American voters.
And so I think it is a priority for all of us to ensure
that our election system encourages the participation of
everyone, disenfranchises no one, and that we move forward
based on addressing any limitations that we know block voters
from voting on Election Day.
Mr. Conyers. Thank you.
Mr. Terry?
Mr. Terry. Thank you, Mr. Chairman. I think perhaps the
word ``recollection''--my recollection is probably very
different from yours, probably more based on things I have read
in books.
But I think that what we have as a country come a very long
way through some very bad times, but I think if there is one
thing that we can probably all agree on leaving here today
after the discussions is that we still have a long way to go.
And we certainly appreciate the Committee's time in
addressing this.
Mr. Conyers. Thank you.
Mr. O'Leary. Mr. Chairman, I think we can all agree that we
all need to fight to create a more perfect union, but in that
regard I think from women's suffrage to the civil rights
movement, this country has come a long way, and we have a lot
to be proud of.
And I know that it is the business of this body to look at
the ways to make things better, but at the same time we should
recognize how great a system we have.
Ms. Narasaki. Mr. Chairman, my recollection begins actually
even before you get to vote. My grandmother immigrated in the
1920's from Japan, and by law she was not allowed until the
1950's to become a citizen because she had come from Japan.
And that has been one of the ways that Asian Americans have
faced a series of suppressions of our vote. Then my parents
were interned with my grandmother during World War II, even
though they were born here. And I am certain that they were not
given an opportunity to vote during those days.
But I think it is important to note that it is not just our
history. We just went through the reauthorization of the Voting
Rights Act with your leadership. And we know that all of these
things are still happening.
And then when we have the hearings and when we reached out
and heard from tribal leaders in South Dakota, who just 4 years
ago were talking about how they were being deprived of their
right to vote, I think it is important for Americans to
understand it is not just our history, it is also what is going
on right now.
And I very much appreciate the fact that you are doing this
hearing to bring that to light.
Mr. Conyers. Thank you.
Mr. Hancock. I would say that you nailed it, sir. And I
would add that our preparation for this election has to be
implemented in the context of that history.
And I would give you one example from our--in Florida in
2000--and I would add to what you said that the discrimination
was effectuated under color of law by government officials.
And so when in 2000 police officers outside of Tallahassee
set up a drivers license checkpoint near a polling place, it
was viewed as harmless by White citizens, but southern Blacks
were intimidated because of what they live through.
So this is not ancient history. We are going to have a lot
of voters who live through this.
And that is why it is particularly important, as we balance
this issue of vote fraud with the right to vote and the Voting
Rights Act, that we not--we do it in a very delicate balance so
that in effectuating criminal laws, we are not intimidating
people from voting.
And that is I think this department took a terrific step
forward with this year's plans to not use criminal prosecutors
for that reason.
So we have a very--I mean we have made remarkable progress,
and the candidates on this ballot show that progress, but we
still live in a context of a very sorry history of
discrimination in this country, that we need to make sure as we
plan for this election that we understand that.
And to give you one other example in the housing context,
someone in your generation who reads a housing ad that says
housing is restricted might do that differently than a younger
African American person.
So we have to go forward with this plan for this election,
recognizing how discrimination can be effectuated in very
subtle ways. And it is not, as I said before, racial animus is
not a prerequisite for a claim under the Voting Rights Act.
The question is are people being singled out or targeted
because of their race or national origin or language minority
status? That is not a difficult standard.
And some of the things we are hearing about now certainly
raise issues under the Voting Rights Act that I suggest the
department should be looking at actively with investigations.
Mr. Conyers. Thank you, Mr. Hancock. Does that suggest that
caging could be illegal if racism was not even involved?
Mr. Hancock. People target--voter suppression is done
because the people doing it believe that the persons they are
targeting are more likely to vote for the opposite party.
And the question is what is their reason for believing
that? The Detroit, the Macomb County incident--and I am not
going to discuss the merits of that. I am just going to discuss
the allegations.
But if people who face foreclosure notices are being
targeted to be challenged, the question is why does someone
believe that people who had a foreclosure notice are most
likely to vote for the other party?
And if you look at foreclosure statistics, I think they
would show that they are disproportionately minority. So there
becomes a link there.
We know in this election that people could be targeted for
suppression based on the color of their skin because of the
candidates that we have in this election.
So yes, I would say that those allegations raise claims
under the Voting Rights Act. I am not commenting whether they
can be proved or can't be proved, but I think that they
certainly raise issues that implicate the Voting Rights Act.
Mr. Conyers. Thank you.
Ms. Becker?
Ms. Becker. I agree with my other panelists here that
certainly Selma is one. I was just reading yesterday--last
night--Congressman Lewis' book and was just admiring his
bravery during that time period.
One other person that I would like to note in terms of
historical perspective in Fannie Lou Hamer, who was one of the
individuals who was named in the 2006 reauthorization act,
which the department is currently defending the
constitutionality of in Federal court.
She was again another person who exhibited tremendous
bravery, a woman who was just a regular person like so many
Americans here today. And while progress has been made, I agree
with the other panelists that there is more work to be done.
Mr. Conyers. Now, looking at just a little bit different
dimension, we have also in our history allegations of a lot of
unsavory practices in voting.
Half a pint of whiskey if you vote, and vote right--
whatever that might have meant to the person giving out the
alcoholic beverage.
Stories of a Chicago machine politics in which the ward
boss would go into the polling place with the voter to make
sure he or she voted the right way. No one was depending on
anyone's integrity.
And we have had--I hate to raise this with the Chairman in
the seat here, but in Texas we have had some elections that
involved former President Lyndon Johnson that have been written
about from different perspectives.
Indeed, even the Kennedy election within our memory was
highly debated and contested for many, many years.
Louisiana--you could write volumes about voting practices
there that I can only hope have been ended--and throughout the
South in its entirety.
So what are you suggesting, Chairman Conyers?
Well, I am suggesting that we keep these things in
perspective as the patriotic rhetoric rises to the sky.
Elections are a reflection culturally of a people. I mean, the
whole notion of war by any other means--a great way to duke it
out in America is to win an election.
Well, like in sports, people resort to excesses to win. I
mean you want to win. The question on--I just saw it leaving
the majority leader's office on, I think, it was Time or
Newsweek magazine. It said, ``Will McCain win nasty?''
Everybody knows what that means. They could put in anybody
else's name.
There is something in our cultural situation like in
sports. U of M has got to beat MSU in Michigan or else. Well
and, of course, Michigan State is just reverse, and so it is
across the country. I mean sports is a great way to get it off
your chest. Let's pulverize these guys. Let's win.
And in our system it translates over into everything:
elections, voting. But I haven't heard any discussion of that.
In other words, if we just ignore that and say, ``Well,
everybody is honorable and ethical, and everybody wants
everybody else to vote, and we don't want any hanky-panky or
froth.
But, look, we are all human, so how does, Attorney Avery,
this factor into it? We are trying to get the best, fairest
election we can in 42 days, so what about that factor? There
are people that are saying, ``We have got to win. Look, this
election is so critical. We have got to win it.''
Ms. Clarke. I think that some of the examples that you
raised, you know, may very well be true and are isolated,
frankly. The examples of persons who are seeking to buy votes,
seeking to fraudulently cast votes, seeking to impersonate the
dead, I think those incidents are few and far between in our
country.
And what I think we are seeing today is a real struggle
where people are trying to overcome very real barriers that
stand between them and the ballot box, trying to overcome the
burdens imposed by restrictive mandatory, government-issued
photo identification requirements, trying to overcome tactics
like what we are seeing in Macomb County.
And although party officials have since backed down from
their plans to use foreclosure lists to challenge voters, the
chilling effect remains. And who knows how many voters may be
discouraged or deterred from turning out on November 4 because
of Macomb County officials' initial plan.
So I remain very focused and think that we are all better
served remaining focused on the substantial barriers and
burdens that voters are up against today, and that we sometimes
allow ourselves to be unnecessarily sidetracked by these
isolated examples of vote-buying that you hear about from time
to time.
Mr. Conyers. Well, the only problem is, though, that some
of the intimidation and coercion is not coming from citizens or
other groups. It is coming from the government. I mean citizens
didn't dream up ID, all these incredible barriers to people
that don't even drive and can't even get to a place and
couldn't afford it if they could.
The foreclosure lists may have been dreamed up by a
political party, but you know, as I think a little bit more
about this, is that there seems to be two classifications of
people in this country.
There are some people that honestly want to restrict the
right of the ballot. They want to make it tough, tough as they
can, exclude as many people however you can. And there are
other people that want to make it as open as you can, inclusive
as you can, simple as you can.
Isn't bad individuals that still have Election Day on a
Tuesday. Why is it a government requirement that you have to
vote after you get the kids to school however you can. You got
to get to work. You got to hope the weather is good, all of
this.
But nobody says, ``Well, look, why do we that? Why don't we
just have a day off for voting?'' which many modern countries
have been doing for quite awhile now. That is not mal-
intentioned individuals. That is government. That is the ID
notion. That is the make it tough as you can.
If you are a student, how can you vote from your dormitory?
You are signed up in Ann Arbor. You live in Ann Arbor. You
can't vote in Lansing. I mean these are government initiatives.
I am not talking about a few bad eggs floating around in the
community. What about that? That is government-directed
strategies that do not encourage voting and do not make it any
fairer or safer or less fraudulent.
Ms. Benson. Congressman, if I could add, as you may know, I
live in the city of Detroit where a state legislator named Papa
George, in 2004, was quoted as saying, ``If we do not suppress
the Detroit vote, we are going to have a tough time in this
election.'' And that was something that he talked about and was
covered in The New York Times and other places.
And so from my perspective and as I tried to make clear in
my testimony, denials are denials. We know Acorn has also
denied things. You know, the discussion still needs to go
forward around clarifying the issue for voters, ensuring that
voters know they are welcome and encouraged to participate on
Election Day and also recognizing that there is at times a
pattern of statements that are made, as you said, by government
officials about suppressing the vote that does need to be
emphasized.
Mr. Terry. Yes, I think one of the core elements that I
sort of took out of your remarks is when you talk about sports
and, you know, doing anything to win is at the core of human
nature, human nature to win.
And human nature, you know, we all have morals and values
and things that got us, that sort of draw us away from those
more natural instincts. But when those aren't enough, we build
laws and institutions, structures and government.
And you talk about a lot of examples of where government is
doing this, and in this country we are government by the
people. And very often that government gets it wrong, and that
is why it takes other people to fix the government.
And so I don't have any solutions for any of those things,
but it did strike me that, you know, human nature being bound
by rules, morals and laws and government being bound by the
people, and that is ultimately the solution.
Mr. O'Leary. Mr. Chairman, I think I don't need to tell you
this after your years of service to your country, but what I
think this all comes down to is the difference between running
for elected office for power or running for elected office
because you want to serve your country.
If it is about power, you are willing to do anything. If it
is about service, you are only willing to do the right thing.
Ms. Narasaki. One of the things I finally have figured out
after about 20 years of doing this is--one of the challenges
that I think really needs to be rethought about our system is
we rely on the candidates and the parties to get people out to
vote.
And what we have seen with the immigrant community is
because they are first-time voters and no one is sure how they
are going to vote, there is actually no incentive by many of
the parties or the candidates to actually get them out to vote.
And I think government really needs to take a much more
active role and responsibility in the realm of how do we make
sure that people get the information they need, know what their
rights and responsibilities are and get that real opportunity
to vote.
And we shouldn't rely anymore on private sectors because
what it spawns is what you said. The example that came to mind
when you were talking was the Department of Justice had to
intervene in Bayou La Batre, Alabama.
Now, there is a Vietnamese community in Bayou La Batre,
Alabama. It is on the coast, and they are shrimpers. And for
the first time, a Vietnamese-American was going to run for a
local office.
Well, the incumbent decided that the best way to prevent
him from winning was to challenge the voter rolls of everybody
who had an Asian name assuming, of course, that the Asians
would vote for him.
The Department of Justice intervened. What I found so
striking about the story was that the people who challenged it
were then supposed to be the main poll-workers in the general
election, and that is the problem.
We have to really take this more out of the hands of the
teams, as you will, and put it more in a neutral forum so that
what Mr. O'Leary refers to, the focus is on what the greater
importance of democracy is for America and not on the short-
term wins and losses.
Mr. Hancock. I guess my comments would be that, first of
all, I could argue about the propriety of certain laws that we
have. I mean if you are going to vote for President, why does
it matter where you go? Everybody can vote for President.
But at the same time, we are not going to change those laws
before this election, and they are going to be enforced, and we
are going to have live with them. And there is room for
principle disagreement as to what the best result is, but there
is no room for any disagreement that the national policy is
reflected in the Voting Rights Act.
And that is that while partisan politics can drive conduct,
partisan politics cannot use race to drive that conduct so that
to the extent--and I emphasize this repeatedly because I think
it is so important, given the election that we are facing--that
people are going to be identified as possibly supporting a
particular candidate by the color of their skin. And
suppression efforts likely are going to be directed just like
the example that was given earlier based on that factor.
So although the people doing it may claim that their
motivating factor is partisan politics, that does not absolve
them from liability under the Voting Rights Act because they
are using race to carry that out. And this Congress passed a
law 43 years ago that said you can't do that, and I would hope
that that would be enforced stringently as we proceed to this
election.
And having been in the department for many years--I spent
27 years in the Civil Rights Division of the Department of
Justice--I know that there is a great reluctance to get
involved with issues at the time of a presidential election
because it might appear to be partisan.
But over the years, the department has always addressed
partisan issues. They have precleared redistricting plans that
might favor one political over another or they have objected to
redistricting plans that might favor one political party over
the other.
So that even though a particular vote-caging effort that is
directed at African-Americans, a remedy for it might favor a
political candidate, that is not a reason for the department
not to act, and they have always been under a burden to act in
a non-partisan way in enforcing this law. I recognize that it
is very difficult for them to do it, but I would urge you to
demand that they do it.
Ms. Becker. I would like to emphasize something that I said
in my opening remarks, which is that I have made clear, as Mr.
Hancock has suggested, to everyone on the voting issues that we
handle, that we need to enforce all of the statutes that we
have. Where are the facts in law? Well, we have evidence and
the law is there for us to bring a case, and to do so without
regard to politics and just let the chips fall where they may
at the end of the day. If we do our job, which is to vigorously
enforce the laws under our authority, that is all we can do.
Mr. Conyers. Well, I thank you all.
Ms. Becker, let me ask you about another book. Have you
ever heard of the book ``What Went Wrong in Ohio?'' It is about
the 2004 election.
Ms. Becker. I printed that off of the internet, but I
haven't seen the actual bound copy of the book.
Mr. Conyers. Well, you will immediately after this hearing.
[Laughter.]
Ms. Becker. Thank you.
Mr. Conyers. You are more than welcome.
Thank you, Mr. Chairman.
Mr. Gonzalez.
Thank you, sir.
I don't believe that we have any other Members seeking
recognition. Without objection, all Members will have 5
legislative days to submit to the clerk of each Committee
additional written questions for the witnesses, which will then
be forwarded and then ask the witnesses to respond as promptly
as they can so that their answers may be made part of the
record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
This hearing is now adjourned.
[Whereupon, at 3:07 p.m., the Subcommittees were
adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
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