[Senate Hearing 110-483]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-483
 
    OLDER VOTERS: OPPORTUNITIES AND CHALLENGES IN THE 2008 ELECTIONS 

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

                                HEARING

                               before the

                       SPECIAL COMMITTEE ON AGING
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             WASHINGTON, DC

                               __________

                            January 31, 2008

                               __________

                           Serial No. 110-20

         Printed for the use of the Special Committee on Aging



  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html

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                       SPECIAL COMMITTEE ON AGING

                     HERB KOHL, Wisconsin, Chairman
RON WYDEN, Oregon                    GORDON H. SMITH, Oregon
BLANCHE L. LINCOLN, Arkansas         RICHARD SHELBY, Alabama
EVAN BAYH, Indiana                   SUSAN COLLINS, Maine
THOMAS R. CARPER, Delaware           MEL MARTINEZ, Florida
BILL NELSON, Florida                 LARRY E. CRAIG, Idaho
HILLARY RODHAM CLINTON, New York     ELIZABETH DOLE, North Carolina
KEN SALAZAR, Colorado                NORM COLEMAN, Minnesota
ROBERT P. CASEY, Jr., Pennsylvania   DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           BOB CORKER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     ARLEN SPECTER, Pennsylvania
                 Debra Whitman, Majority Staff Director
            Catherine Finley, Ranking Member Staff Director

                                  (ii)

  
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                            C O N T E N T S

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                                                                   Page
Opening Statement of Senator Herb Kohl...........................     1
Opening Statement of Senator Gordon Smith........................     2
Opening Statement of Senator Ken Salazar.........................    71
Opening Statement of Senator Claire McCaskill....................    72
Opening Statement of Senator Ron Wyden...........................    73

                           Panel of Witnesses

Barbara Bovbjerg, director, Education, Workforce and Income 
  Security Issues, U.S. Government Accountability Office, 
  Washington, DC I605............................................
    Accompanied by: William Jenkins, director, Homeland Security 
      and Justice, U.S. Government Accountability Office, 
      Washington, DC
Deborah Markowitz, Vermont secretary of state, Montpelier, VT....    35
Michael Waterstone, associate professor of Law, Loyola Law 
  School, Los Angeles, CA........................................    41
Jason Karlawish, M.D., associate professor of Medicine and 
  Medical Ethics, University of Pennsylvania, Philadelphia, PA...    51
Wendy R. Weiser, deputy director, Democracy Program, Brennan 
  Center for Justice at NYU School of Law, New York, NY..........    58

                                APPENDIX

Additional testimony submitted by Wendy Weiser, Brennan Center 
  for Justice at NYU School of Law...............................    87
Testimony submitted by the American Bar Association..............   218

                                 (iii)

  


    OLDER VOTERS: OPPORTUNITIES AND CHALLENGES IN THE 2008 ELECTIONS

                              ----------                              --



                       THURSDAY, JANUARY 31, 2008

                                       U.S. Senate,
                                Special Committee on Aging,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:50 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Herb Kohl 
(chairman of the committee) presiding.
    Present: Senators Kohl, Smith, Salazar, McCaskill, and 
Wyden.

        OPENING STATEMENT OF SENATOR HERB KOHL, CHAIRMAN

    The Chairman. Good morning to one and all. We would like to 
welcome all of you to our hearing. Today this Committee will 
focus on older workers and the various barriers they face in 
exercising their right to vote.
    What sets this topic apart from others on the Aging 
Committee is that voting is not a benefit of our great society, 
but it is a right. Things like lower drug prices and consumer 
protection are things we would like to afford older Americans, 
and that we certainly think that they deserve. But the right to 
vote is fundamental and undeniable, and it does not expire with 
age.
    Twenty-four States will hold primary elections on Super 
Tuesday, just 5 days from now. Eight of these States facilitate 
voting in long-term care settings, either by setting up public 
polling locations on the premises, sending election officials 
into the facility to assist seniors, or helping nursing home 
administrators obtain absentee ballots in advance.
    But the other 16 States currently make no accommodations 
for voters living in long-term care settings, and long-term 
care administrators are offered no direction from election 
officials as to how they should assist their residents with 
their voting.
    Today I am sending a letter, along with Rules Committee 
Chairman Dianne Feinstein, to request that the Election 
Assistance Commission conduct research on voting within long-
term care settings, and develop voluntary guidelines to help 
States facilitate such voting. We hope this will help address 
barriers to voting within these settings.
    There is also the matter of disabled older voters outside 
of the long-term care setting. Many States, like my own State 
of Wisconsin, do have laws on the books requiring that all 
polling sites are accessible to disabled individuals.
    Unfortunately, such laws do not always dictate reality and 
voting sites are often found to be not in compliance. During 
the 2000 elections the GAO found that only 16 percent of 
polling sites surveyed nationwide were fully accessible to 
people with disabilities.
    This has a real impact on older voters because, in spite of 
their tendency to be more engaged politically, older voters 
with a disability are almost 50 percent less likely to vote 
than their peers without a disability.
    Several of my Senate colleagues and I will ask GAO to 
follow up on their previous study and monitor the level of 
accessibility during the 2008 elections. There is no reason for 
States to fall down on the job of voter accessibility. We know 
that innovative mechanisms exist to allow older and disabled 
Americans to vote, regardless of their physical disabilities.
    Ranking Member Gordon Smith, who is sitting beside me, 
hails from Oregon, where all residents vote by mail. As I 
understand it, that State has seen an increase in voting 
between 5 and 10 percent. We will also hear about Vermont's 
vote-by-phone system today.
    Finally, our hearing today will also touch on the issue of 
voter ID. Currently the Supreme Court is considering whether an 
Indiana requirement designed to stem voter fraud will actually 
result in discriminating against the elderly, minority, and 
low-income populations who are less likely to have proper 
identification. Studies have found that seniors are more likely 
to lose their right to vote when voter ID is implemented.
    My State of Wisconsin has been battling over its own voter 
ID proposals. A 2005 study by the University of Wisconsin found 
that 23 percent of people age 65 and older in Wisconsin do not 
have a driver's license or other photo ID. A Supreme Court 
ruling on the Indiana law is expected by late June and is sure 
to have national implications for current and future voter ID 
laws.
    As you listen to our witnesses this morning, and when you 
leave this room and return to the barrage of nonstop election 
coverage, please keep in mind the message of today's hearing. 
If we do not remove the barriers that prevent elderly and 
disabled citizens from exercising their right to vote, then we 
are for all intents and purposes disenfranchising them.
    So we thank our witnesses who are here today with us.
    We now turn to our distinguished Ranking Member, Gordon 
Smith, for his opening comments.

   OPENING STATEMENT OF SENATOR GORDON SMITH, RANKING MEMBER

    Senator Smith. Thank you, Mr. Chairman.
    To all our witnesses, we welcome you. We thank you for your 
time and the attention you are giving to this vital question of 
how we make sure that our senior citizens continue to enjoy the 
right of the franchise in an unfettered way.
    Mr. Chairman, with your permission, I will put my opening 
statement in the record. It largely reflects your own. But I 
would just make these comments.
    Oregon has one way of doing it. It is vote-by-mail. It has 
been a success. It is a better success every election because 
it has gotten better every election in terms of the integrity 
of the ballot, and shoring up loopholes that somehow add to or 
dilute the integrity of the result.
    So, I congratulate both our people for voting for this, and 
also the way our State officials have worked hard to implement 
it. It does make it easier for the elderly and the disabled to 
vote.
    However States choose to devise it, as is their 
constitutional right, I would simply say make it as easy as 
possible but emphasize the integrity of it. I feel like the 
Carter-Baker commission report as to real ID actually makes a 
lot of sense because of what I hear from seniors in Oregon.
    I know there are different opinions on this, but if you go 
with me to a nursing home in Oregon and you talk about voting, 
one of the concerns that is often expressed to me by seniors is 
that somehow their vote is added to, or taken away from, by 
those not constitutionally eligible to vote.
    I think they express that with such vigor because it was 
their generation that died in the hundreds of thousands 
defending the right to vote, the franchise. They don't want to 
see it trampled upon by those who are not constitutionally 
eligible.
    So I feel very strongly about that. I think Oregon has got 
it right and I think we are getting it better all the time.
    But I do think--you know, obviously as you note, Mr. 
Chairman, the Supreme Court will take up this issue. After some 
of the memories we have had in recent elections with charges 
and countercharges of fraud, I think it is incumbent upon 
public officials to do everything they can to make sure that 
votes are accessible, but that they are lawful. We owe them 
both of those values and that ought to be our focus.
    Thank you.

             Prepared Statement of Senator Gordon H. Smith

    Mr. Chairman, thank you for holding today's hearing on 
older voters.
    From paper ballots and mechanical levers to vote-by-mail, 
as we do in my home state of Oregon, our nation has 
experimented with different ways for Americans to cast their 
votes. Although some of the mechanics of casting a ballot have 
changed over our country's history, voting remains the ultimate 
demonstration of our democracy at work. That is why voter 
access to the polls and the preservation of the integrity of 
our voting system is imperative to ensure maximum voter 
participation and confidence in the system.
    America's elderly encounter particular challenges when 
voting. Many individuals lack access to transportation to and 
from polling locations, while others have physical impairments 
that present challenges to cast a ballot. Furthermore, 
alternative forms of voting, such as absentee balloting, often 
can be complicated and confusing for seniors. I look forward to 
hearing from our witnesses about how we can properly address 
these challenges and identify opportunities for older voters to 
cast their votes with ease and confidence to ensure they remain 
engaged in elections.
    In addition to enhancing the accessibility of voting, we 
also must take measures to deter and detect fraud in our voting 
system. Several states have adopted Voter ID laws that require 
voters to present identification at the polls. And in 2005, the 
Carter-Baker Commission recommended states use ``REAL ID'' 
complaint cards for voting purposes. In large part, I support 
the recommendations of the bipartisan Commission to enhance the 
integrity of our voting system. However, we must look for ways 
that minimize the impact on seniors and persons with 
disabilities to encourage their participation in our democratic 
process.
    Mr. Chairman, I like you, want to ensure that seniors do 
not experience barriers to the voting booth when Election Day 
arrives. I look forward to hearing from our witnesses about 
innovative approaches to ensure elderly voters have appropriate 
access to cast a ballot in a simple and secure manner.
    Thank you Mr. Chairman.

    The Chairman. Thank you, Senator Smith, for your very 
outstanding comments.
    On the witness panel, our first witness today will be 
Barbara Bovbjerg. Ms. Bovbjerg is director of education, 
workforce and income security issues at the U.S. Government 
Accountability Office. There, she oversees evaluative studies 
on aging and retirement income policy issues. Previously, Ms. 
Bovbjerg was assistant director for budget issues at the GAO.
    She is accompanied here today by her colleague, William 
Jenkins, Jr., who serves as director for Homeland Security and 
Justice at GAO, where he leads GAO's work on emergency 
preparedness and response, the Federal judiciary and elections. 
I am also pleased to note that he received his Ph.D. in public 
law from the University of Wisconsin.
    Our second witness will be Vermont's Secretary of State 
Deborah Markowitz. She is the first woman to be elected 
secretary of state in Vermont and is currently serving her 
fifth term in office.
    As secretary of state, Ms. Markowitz is the constitutional 
officer chiefly responsible for Vermont's election and for 
providing education assistance to the State's local officials. 
During her term she has implemented an ambitious election 
reform agenda including widespread voter education and outreach 
programs, some of which we hope to hear about today.
    Our third witness will be Michael Waterstone, who is an 
associate professor of law at the Loyola Law School in Los 
Angeles. Mr. Waterstone is a nationally recognized expert in 
disability and civil rights law. He is also a commissioner on 
the American Bar Association's Commission on Physical and 
Mental Disability, as well as a board member of the Disability 
Rights Legal Center.
    Next we will hear from Dr. Jason Karlawish who is an 
assistant professor of medicine within the geriatric division 
at the University of Pennsylvania. He is also a fellow of the 
University Center for Bioethics, and the senior fellow on the 
Leonard Davis Institute of Health Economics.
    Dr. Karlawish's research has included the ethical, legal, 
and social issues raised by persons voting in long-term care 
settings.
    Finally, we will hear from Wendy Weiser, deputy director of 
the Democracy Program at the Brennan Center for Justice at NYU 
law School of Law, where she directs the center's work on 
voting rights and elections.
    She has authored a number of reports and papers on election 
reform, litigated ground-breaking voting rights lawsuits, and 
provided policy and legislative drafting assistance to Federal 
and State legislators and administrators all across our 
country.
    So we thank you all for being here today.
    We will start with you, Ms. Bovbjerg.

 STATEMENT OF BARBARA BOVBJERG, DIRECTOR, EDUCATION, WORKFORCE 
  AND INCOME SECURITY ISSUES, U.S. GOVERNMENT ACCOUNTABILITY 
                     OFFICE, WASHINGTON, DC

    Ms. Bovbjerg. Thank you, Mr. Chairman, Senator Smith.
    I am pleased to be here today with my colleague to speak 
about access to voting for older Americans. Voting is 
fundamental to our democratic system, and Federal law has 
generally required polling places to be accessible to the 
elderly and to people with disabilities.
    Yet, assuring access to the variety of polling places and 
voting methods used can challenge State and local election 
officials. The Help America Vote Act of 2002 has sought to 
improve this situation by requiring accessibility in voting 
systems and providing funding to support it.
    Our testimony today focuses on a number of factors that 
affect older voters, including their ability to travel to 
polling places, their ability to enter polling places once they 
get there, their ability to cast their votes using available 
equipment and assistance, and the ability to utilize 
alternative voting provisions, such as absentee or early voting 
or mail voting.
    Our statement is drawn from a broad range of GAO work, and 
particularly our onsite observations on accessibility during 
Election Day 2000. But I will speak first about travel to the 
polling place.
    Transportation challenges become more acute with age and 
can limit seniors' ability to reach polling places. While most 
older adults drive, their abilities can deteriorate. Each year, 
roughly 600,000 older people stop driving and become dependent 
on others for transportation.
    For those who do not or cannot drive, our previous work for 
this Committee found transportation gaps only partly filled by 
partnerships across governments and nonprofits. Thus, some 
older Americans may not be able to join their neighbors at 
polling places on election day.
    As for those who are able to come to the polls, the 
immediate vicinity of the polling place may pose additional 
obstacles. In our Election Day 2000 work we visited 496 polling 
sites in 100 counties across the country and examined each for 
features that could impede access.
    We looked at the parking areas, the route from those areas 
to the building entrance, the route from the entrance to the 
voting room and various other aspects of voting. These onsite 
inspections revealed that only about 16 percent of polling 
places nationwide were free of impediments that could prevent 
elderly or disabled voters from reaching the voting room.
    Of those sites with impediments, about two-thirds offered 
curbside voting. However, advocates for disabled Americans note 
that such measures still do not provide an opportunity to vote 
in the same manner as the general public.
    Our subsequent work on access suggests improvements since 
the 2000 election. In our 2005 survey of all States and a 
sample of local jurisdictions, State provisions for polling 
place access have increased, and the funding provided through 
the new Federal election law has had an impact. However, until 
voting sites are inspected again we cannot know how much on-
the-ground impact these provisions have had.
    With regard to voting itself, that is, the system in the 
voting room that allows voters to cast their ballots, our 
findings were similar. On Election Day 2000 we saw challenges 
posed by the voting systems used and by the configuration of 
the voting booths, although some form of assistance was usually 
available in the voting room.
    Forty-three percent of polling places used paper or 
scanable ballots, which was challenging for voters with 
impaired dexterity. We also found that many of the voting 
booths were not appropriately configured for wheelchairs. But 
most offered assistance, and a small majority provided written 
instructions or sample ballots in very large type. None 
provided ballots or equipment for blind voters.
    But the situation has improved. Our 2005 survey of State 
and local jurisdictions reported an increase in State 
provisions for accessible voting equipment compared to our 2000 
review, although difficulties in assuring reliability and 
security of new voting systems is causing some States to 
abandon new and potentially more accessible technology.
    Finally, let me turn to alternative methods. Federal law 
has long required that elderly or disabled voters assigned to 
an inaccessible polling place be provided with an alternative 
means for casting a ballot. Alternative methods may include 
curbside voting, early voting, or absentee voting, among other 
things.
    State provisions allowing alternative methods have 
generally increased since 2000. For example, the number of 
States that will carry ballots to a voter's residence has risen 
from 21 to 25. In addition, 21 States reported allowing voters 
to vote absentee without requiring a reason or an excuse. That 
is three more than in 2000.
    Although such accommodation may be more commonly offered 
now, our experience in 2000 suggested there may be wide 
variation in implementation.
    In conclusion the increase in State provisions and reports 
of practices to improve accessibility is encouraging. The 
complexity, though, of the election system and the expense of 
changing it suggests that not all such policies will be in 
evidence at polling places on Election Day 2008.
    Yet, the aging in the American population and the 
concomitant growth in voters needing accommodation will 
increase the urgency for policies of this nature to be 
implemented on the ground. Clearly, improved access will 
require sustained attention from election officials at all 
levels of government.
    That concludes my statement. I await your questions.
    [The prepared statement of Ms. Bovbjerg follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. Thank you.
    Mr. Jenkins.

 STATEMENT OF WILLIAM JENKINS, DIRECTOR, HOMELAND SECURITY AND 
 JUSTICE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC

    Mr. Jenkins. I am just here to answer questions about our 
work.
    The Chairman. Thank you.
    Mr. Jenkins. I led the work that did the 2005 survey.
    The Chairman. Ms. Markowitz.

  STATEMENT OF DEBORAH MARKOWITZ, VERMONT SECRETARY OF STATE, 
                         MONTPELIER, VT

    Ms. Markowitz. Well, I want to begin by thanking you for 
inviting me here today.
    Vermont is a trade State. You should know, Chairman, that 
my family is from Milwaukee. So the Chudnotes from Milwaukee 
send their fond regards.
    You know, there was a time not long ago when the only 
people really concerned about how we ran our elections were 
those bureaucrats who actually did the work. We all know that 
changed in 2000 when we saw dramatically how a poorly planned 
election really could call into question the legitimacy of our 
democracy.
    I guess my statement today really is that we have an 
opportunity to avoid a similar kind of problem in the future. 
You know, there is no reason that we need to wait for the 
system to break down in order to think about ways to fix it.
    According to the Census Bureau, we are going to have a 
tremendous aging of America. I am going to just give you a few 
statistics. There is more in my written statement.
    But the number of Americans who are 55 and older will 
nearly double between 2007 and 2030, from 20 percent of the 
population to 31 percent. That is tremendous. We don't actually 
even need to wait that long to see a real rapid growth in what 
that will mean for us. By 2015 the number of Americans ages 85 
and older is expected to increase 40 percent.
    So we need to be prepared. We need to think about how we 
run elections. Understand that, with medical advances, as 
people age they are going to continue to be active, more active 
than the previous generation of old folks.
    Of course, we also know this older generation, our 
generation--are a generation of voters and they will expect to 
be able to continue to exercise the franchise. So those of us 
who are running elections need to think ahead.
    As we plan for future elections, what I would ask this 
Committee is to keep in mind our underlying value that, as a 
democratic society, we should facilitate access to voting the 
best we can. That should be our first obligation, is to make 
sure that people who want to vote have an opportunity to vote. 
At the same time, we have to have in place safeguards to ensure 
its integrity. So it is this balance between access and 
integrity.
    I have got some suggested steps that we take across the 
country to prepare for the aging of America, and I would like 
to just go through them pretty quickly.
    One is I think we have an obligation to make sure that in 
every State our elderly voters have the option of voting by 
mail or by absentee ballot. It is something that you have seen, 
Senator Smith, in your State as being a very successful way to 
reach older voters. We find in Vermont that is how many of our 
older voters prefer to vote. There is no reason why it can't 
work in every State in this country.
    We have to ensure that our polling places are convenient to 
our older voters, like they do in your State, Senator Kohl, 
sometimes having polling places in their senior centers. That 
is a fabulous idea.
    Making sure that there is transportation to the polling 
places. That is essential.
    We also must rethink our polling places to make sure that 
not only are they convenient for people with disabilities, but 
we are thinking about the needs of older Americans.
    For example, there needs to be chairs available. Something 
as simple as chairs, so that when somebody is waiting in line 
they don't have to stand up. We know that may be one of the 
most significant barriers to older folks coming and voting at 
the polling places, not knowing how long they are going to be 
asked to be on their feet.
    We also have to explore new ways to reach voters who are in 
residential care facilities to ensure that they are provided an 
opportunity to vote, and to prevent voter intimidation and 
fraud.
    One of the things that I hear about in Vermont is a fear of 
an overzealous and perhaps over-political activities director 
in a nursing home is influencing all of the residents to vote 
in a particular way. We can avoid that. There are thing that we 
can do today so that in the future we can make sure that there 
is security in that voting system in our residential care 
facilities.
    Finally, we have to be sure that States that choose to 
adopt voter identification requirements do so in a way that 
doesn't disenfranchise the elderly who no longer have a valid 
driver's ID license or government--or other governmental-issued 
identification. I believe that is a serious problem, not just 
in Vermont but across the country.
    I would like to mention Vermont's approach, some of the 
things we are doing in Vermont to try to get ready for the 
aging Vermonters.
    One is we are one of the five States that use the IVS Vote-
By-Phone system to permit voters with disabilities, the elderly 
and others to vote privately and independently at our polling 
place.
    With this system voters use a telephone keypad to mark a 
paper ballot which is then centrally counted and added to the 
election count at the end of the night with the rest of the 
counting of the ballots.
    So far we have deployed this technology in our polling 
places, but it has got tremendous opportunity for folks to use 
at home. There are some additional security steps that we have 
to put in place in order to fully deploy it so that voters can 
use the phone at home.
    But for an elderly voter, somebody with a disability where 
they can't mark their ballot on their own, they shouldn't have 
to go to the polling place to have that privacy and 
independence in their vote that is required under HAVA when 
there is technology available, like the vote-by-phone system, 
to let them have the benefit of the absentee ballot, but still 
have the privacy that the technology in a polling place would 
offer. So we are hoping that in the future, by the time we have 
got this demographic, we will have our vote-by-phone ready.
    Finally, mobile polling in the 2008 election we plan to 
implement. It is a pilot project where trained election workers 
will be taking ballots into our nursing homes, having an 
election day in the nursing homes, and assisting people who 
need assistance in bipartisan pairs. It is that pairing of 
election workers that will prevent collusion, prevent fraud, 
and ensure that people in residential facilities have the 
opportunity to vote without the opportunity for fraud.
    So I thank you very much and I am happy to take questions 
later.
    [The prepared statement of Ms. Markowitz follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. Thank you very much.
    Mr. Waterstone.

 STATEMENT OF MICHAEL WATERSTONE, ASSOCIATE PROFESSOR OF LAW, 
               LOYOLA LAW SCHOOL, LOS ANGELES, CA

    Mr. Waterstone. Mr. Chairman, thank you for inviting me.
    Voting is a huge process, ranging from voter registration 
to counting. This morning I will be talking about one part of 
that process: challenges faced by older voters when they are 
actually voting.
    I will be discussing older voters and voters with 
disabilities more or less together. These groups are linked. As 
the population ages, more people develop mobility, cognitive, 
and manual dexterity impairments.
    In brief, I will suggest that for older voters with these 
types of impairments the way that we have administered 
elections has cheapened their voting experience. This has 
occurred both at the polling place and with absentee voting.
    I will conclude by discussing how we can create a better 
voting experience for these voters in the 2008 election and 
beyond.
    Our goal must be that these voters are treated with equal 
dignity in the voting process, that they get assistance when it 
is truly desired, but otherwise get to vote secretly and 
independently like other citizens, either at the polling place 
or by absentee ballot.
    We don't need to look any further than next Tuesday to see 
the real life significance of this issue. A huge number of 
voters, including older voters, will go to the polls on Super 
Tuesday, or have already done so via absentee voting. Why?
    The most straightforward answer is to help pick a 
President. We should have procedures that protect accurate 
voting without fraud or undue influence.
    But these people also vote to demonstrate their membership 
in the community. In meeting the challenges faced by older 
voters we need to focus on both of these parts of the right to 
vote.
    What are the voting experiences of older voters who may 
have physical or mental impairment? At the polling place, those 
who use wheelchairs may encounter high door thresholds, ramps 
with steep slopes, and a lack of accessible parking.
    More than 15 years after the passage of the Americans with 
Disabilities Act, inaccessibility persists. Voters with various 
types of impairments who are able to get inside the polling 
place may not be able to cast a secret and independent ballot.
    Older voters with manual dexterity impairments can have 
trouble using paper ballots. Voters with cognitive or vision 
impairments may have difficulty reading certain ballot formats.
    The Help America Vote Act, which explicitly requires secret 
and independent for voters with disabilities, will help older 
voters. But although HAVA is still relatively new and more 
study is needed, initial reports suggest that, like the ADA's 
accessibility requirements, implementation and enforcement has 
been slow and uneven.
    What about absentee ballot voting? While this can be a 
useful tool to bring older voters into the voting process, it 
is not a substitute for accessible polling places, at least to 
the extent they exist for other voters. When people who would 
otherwise travel to the polling place are effectively forced to 
vote in private, it sends a harmful signal about their full 
inclusion in the community.
    As currently practiced, absentee balloting is not fully 
accessible, meaning that older voters with impairments may have 
to rely on the help of others. This can be helpful and we 
should establish guidelines for appropriate assistance, but it 
can also increase the potential for fraud, coercion, or 
unwarranted capacity assessments. This is not respectful of the 
equal dignity of older voters.
    What can be done? I actually believe we are at a point 
where our Federal laws are fairly strong, at least on paper. 
With aggressive implementation and enforcement, combined with 
some law reform and State creativity, great strides can be 
made. Let me offer three concrete suggestions, although I have 
given more in my written testimony.
    First, the secret and independent ballot provisions of the 
Help America Vote Act must be aggressively enforced. The 
primary means of enforcement is with the Department of Justice 
which has not made this a priority. I support amending HAVA to 
include a private right of action, or supporting judicial 
construction of one.
    Second, we need heightened enforcement of the ADA's 
requirement that polling places be accessible. It is 
unacceptable that so many years after the ADA's passage there 
are still violations. Given recent Supreme Court decisions, ADA 
enforcement has become more complicated but this must become a 
priority, ideally with public enforcement authorities taking 
the lead.
    Third, we should support improved practices on absentee 
voting. Absentee balloting should be done in a way that 
supports secret and independent voting to the greatest extent 
possible, affirmatively providing people appropriate 
assistance, yet also minimizing chances of undue coercion and 
error.
    Suggestions for reform have included easing the application 
process, more accessible ballots--including HTML ballots and 
phone voting, as Secretary Markowitz has discussed--guidance 
for caregivers, and mobile polling.
    I thank you again for the fastest 5 minutes of my life and 
I look forward to your questions.
    [The prepared statement of Mr. Waterstone follows:]

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    The Chairman. Thank you, Mr. Waterstone.
    Dr. Karlawish.

  STATEMENT OF JASON KARLAWISH, M.D., ASSOCIATE PROFESSOR OF 
   MEDICINE AND MEDICAL ETHICS, UNIVERSITY OF PENNSYLVANIA, 
                        PHILADELPHIA, PA

    Dr. Karlawish. Thank you.
    Let me begin with this hearty thanks to the members of the 
Committee and their excellent staff for having this important 
hearing and for inviting me to speak.
    So let me tell you two stories. On Election Day, 2004, my 
colleague, Dr. John Bruza, was visiting a patient of his in a 
nursing home in Philadelphia, and she was in tears of anger and 
frustration. She wanted to vote but she couldn't vote. Her 
polling place was at a far away district, and she hadn't had 
the chance to re-register. She had no way to get there, and she 
had missed the application for absentee balloting.
    November of 2007 a candidate for the Philadelphia council 
lost by just 120 votes. When the machine count was tallied he 
had won, but when absentee ballots were counted he lost. The 
newspapers report that he claims improprieties in how absentee 
ballots were handled at several nursing homes and he has now 
filed suit in Federal court.
    What do those two cases tell us? They tell us that elderly 
voters, especially elderly voters who live in long-term care 
settings, are suffering doubly. First, people decide whether 
they can vote and, second, people steal their votes.
    I think you all here have a great opportunity to change 
this. I want to tell you the nature of the problems with some 
data that we have gathered from our research, and then suggest 
a set of solutions.
    I want to share with you the results of studies my 
colleagues and I have done examining voting in long-term care. 
In particular we have done two surveys, one in Philadelphia 
after the 2003 municipal election, and the second was in 2006 
after the general election in the State of Virginia.
    Both Pennsylvania and Virginia share a common feature. 
Unfortunately, like 27 other States, they have absolutely no 
guidelines for accommodations for residents in long-term care 
facilities.
    As you know, the number of Americans with cognitive 
impairment is increasing. Many of these people live in assisted 
living facilities or in nursing homes. In these settings, staff 
have substantial control over how residents live their day-to-
day lives; what they can do and what they can't do and this 
includes voting.
    Unfortunately, election officials have paid limited 
attention to assuring the residents have access to the ballot, 
and also preventing unscrupulous people from stealing their 
votes.
    Next week, 24 States will be in Super Tuesday, as has 
already been pointed out by Senator Kohl. Eight of them have 
policies to address voter accommodations in long-term care 
settings.
    But unfortunately, of those guidelines that exist, they are 
largely inadequate. They lack proactive steps to get people 
registered, they rely upon the resident to apply for an 
absentee ballot, they spring into effect when certain 
thresholds are met, like a certain number of absentee ballots 
being ordered, and so on.
    But the majority of States, as I say, don't have any 
guidelines for voting in long-term care. So what does that 
mean? Well, let me tell you what we found from our research.
    The staff of a nursing home, typically a social worker or 
an activities director, are in charge of voting; not elections 
officials.
    No. 2. There is substantial and unnecessary variability in 
registration and voting procedures, and in staff attitudes 
about who has the right to vote, and this variability likely 
disenfranchised voters.
    In fact, many facilities have reported to us that there 
were residents who wanted to vote but were unable to vote, 
largely because of remediable procedural problems like failure 
to order ballots, to get them registered, or being unable to 
get people to the polls.
    Much of the voting in long-term care facilities is absentee 
balloting. At some facilities up to 2/3 of the residents voted 
absentee. This kind of balloting is well recognized as the 
source for voter fraud.
    Most of these residents need assistance voting, and most of 
that voting is provided by one person, the social--the 
activities director or the social worker.
    Finally, many of the facilities reported to us that the 
staff assessed whether a resident is capable of voting, and the 
methods they use likely disenfranchise people who arguably were 
probably capable of voting.
    I am going to read you this quote from an interviewee. She 
said to us, ``You know, the right to vote is such a basic 
right. To feel like you are taking that away from someone, 
particularly if they are borderline, guidelines would help to 
make sure there are fair objective applications. Not, 'I am 
sure she is not going to vote for the person I want so I am not 
going to take her to the polling place or help her with her 
ballot.' You do have quite a bit of power and authority over 
folks.''
    What have we learned? Our studies show that in States 
without guidelines for voting in long-term care, elections 
officials play a very limited role, access to the polls is 
really determined by the staff and the attitudes of that staff 
and these practices are arguably largely unacceptable.
    In the Super Tuesday States that have no guidelines, the 
residents of long-term care facilities will likely suffer the 
very experiences we have talked about, and multiplied over 
many, many States.
    Making a long-term care facility a polling site is not a 
solution to this problem. Expanding access to absentee ballots 
is not a solution to this problem. I would be happy to discuss 
in the question and answers why that is the case.
    The solution is mobile polling. Mobile polling means that 
the elections officials or their equivalent groups go to the 
facilities prior to registration deadlines to encourage and 
solicit registration. Then in the days prior to the election 
they go back to the facility, they assist voters in gather--
completing their ballots, and they gather the ballots and they 
bring them back. These officials are trained to address the 
unique issues of voting by the elderly, such as how to assist a 
voter.
    Models do exist for mobile polling. In Australia and Canada 
it is the norm. Maryland has a great set of guidelines, but 
they are underfunded.
    To achieve this goal of universal mobile polling in the 
United States of America, I would propose the United States 
Election Assistance Commission conduct research to develop a 
model set of best practices for mobile polling, training for 
election officials to implement them, and then partner with 
States to test their feasibility and to refine them.
    Thanks so much for this opportunity to talk to you. Happy 
to address questions.
    [The prepared statement of Dr. Karlawish follows:]

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    The Chairman. Thank you very much, Dr. Karlawish.
    Ms. Weiser.

    STATEMENT   OF   WENDY R.   WEISER,   DEPUTY DIRECTOR, 
DEMOCRACY PROGRAM, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF 
                       LAW, NEW YORK, NY

    Ms. Weiser. Thank you very much and thank you to the 
Committee for holding this important hearing.
    As you know, the issue of voter ID is currently before the 
Supreme Court and it is one of the most important voting rights 
issues facing Americans today. It could transform how Americans 
vote and which Americans vote.
    Whatever your views are on voter ID in general, the kinds 
of restrictive voter ID proposals we have seen across the 
country, like the Indiana law before the Supreme Court, are 
unusually harmful to older Americans. So we strongly urge this 
Committee to take a serious look at how voter ID requirements 
affect older Americans and disabled Americans.
    I have submitted detailed written testimony. Today I will 
just stress three points.
    First, restrictive voter ID requirements could 
disenfranchise and burden huge numbers of older Americans. The 
fact is that millions of older Americans don't have the kinds 
of documents that are called for by these new voter ID laws 
which are typically State-issued photo IDs or proof of 
citizenship documents.
    The Brennan Center recently did a national survey that 
found that 18 percent of citizens over 65 don't have current 
government-issued photo IDs, as compared to 11 percent of 
voters overall. Other major social science studies have similar 
findings.
    It is also especially hard for older Americans to obtain 
these kinds of IDs. To get a photo ID you typically need ID, 
including a birth certificate. But many older Americans, as it 
turns out, don't have birth certificates and they would have to 
expend money and effort to obtain one. For some, these efforts 
would be futile--like for one of the plaintiffs in the Indiana 
case, 85-year-old Thelma Ruth Hunter who, like many other older 
Americans, was born at home and, thus, there is no record of 
her birth.
    For the typical older American who doesn't drive, who has a 
disability, and who lives on a fixed income, it is a real 
burden to have to travel to a government office and pay a fee 
twice just to be able to later go to the polls and vote.
    These laws hurt voters for no good reason. It is hard to 
imagine what purpose would be served by disenfranchising 
Valerie Williams, who is one of the Indiana voters who was 
barred from voting in the lobby of her retirement home, even 
though she had an expired driver's license, a current telephone 
bill, and a Social Security letter with her address.
    Extensive studies show that the one kind of fraud targeted 
by these ID laws--commonly called impersonation fraud--almost 
never happens. The States already have adequate mechanisms in 
place to identify voters and to protect elections from this 
kind of fraud.
    While we really must take the fear of the voter fraud that 
Senator Smith mentioned very seriously, we should act only on 
those fears that are based in fact and make sure that voters 
are educated about which ones are not.
    The second big point I would like to make is that this 
isn't just an abstract, remote issue. It could actually affect 
the 2008 elections.
    Restrictive ID requirements are now in place in three 
States. If the Supreme Court upholds Indiana's law, we could 
see stepped-up efforts to impose these kinds of requirements 
across the country.
    In 2007 there were restrictive ID bills introduced in 31 
States, including all but three of the Super Tuesday States and 
Georgia, which already had an ID law. This year already nine 
States have introduced new restrictive photo ID bills and 13 
have restrictive proof of citizenship bills pending as well.
    This election has generated an unusually high level of 
interest among voters in both parties, many of whom had not 
previously participated. It really would be a travesty if many 
of these newly enthusiastic voters were thwarted because of 
onerous and unnecessary ID requirements.
    The third point that I would like to make is that, 
regardless of how the Supreme Court rules in the Indiana case, 
there are a number of affirmative steps that Congress can take 
to ensure that ID requirements don't disenfranchise older 
Americans and Americans with disabilities. I will go quickly 
through some of them.
    First, Congress should continue to resist efforts to impose 
new ID requirements at the Federal level.
    Congress should also protect voters from disenfranchisement 
as the result of State ID requirements such as by barring the 
most restrictive kinds of ID requirements, or at least by 
requiring reasonable alternatives for voters without IDs.
    Congress can also make it easier and less expensive for 
Americans, and especially older Americans and indigent 
Americans, to obtain Federal IDs and citizenship documents.
    Another step would be to repeal the new onerous provisions 
of the REAL ID Act, which is going to make it much harder and 
more expensive for people to get State IDs.
    Finally, Congress can provide resources for poll worker and 
voter education on voter ID requirements.
    In closing, there is something especially troubling about 
telling a person who has been voting in her community for her 
whole life that she can no longer vote unless she goes through 
a time-consuming and expensive process that may or may not get 
her the documents that she needs to vote.
    Older Americans and our democracy deserve better than that. 
Thank you.
    [The prepared statement of Ms. Weiser follows:]

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    The Chairman. Thank you very much.
    Before turning to questions for the panel, we would like to 
ask our two Senators, Senator Salazar, Senator McCaskill, for 
any comments they wish to make.

            OPENING STATEMENT OF SENATOR KEN SALAZAR

    Senator Salazar. Thank you very much, Chairman Kohl and 
Ranking Member Smith, for giving this Committee the opportunity 
to hear from this excellent panel of witnesses.
    The right to vote we all know in this Capitol is 
fundamental to our democracy. In the past few weeks we have 
seen Americans vote in primaries and caucuses from Iowa to 
Florida. As we know, next Tuesday we will see them voting in an 
additional 24 States. According to all these polls Americans 
are voting in record numbers.
    Too often, following an election stories begin to emerge 
regarding the long lines at the polling places, lack of access 
for disabled individuals, or issues with voting machines. 
Reports show--and we know from our own experiences--that senior 
voters are particularly impacted.
    As we move forward with the 2008 election and beyond, there 
are a few principles that should never be forgotten.
    First, every American that is eligible and registered to 
vote must have access to the ballot box.
    Second, elections must be transparent and exhibit the 
highest level of security.
    Third, mandatory requirements that are burdensome and may 
inadvertently disenfranchise voters should be avoided.
    Fourth, every vote must count.
    I believe these principles will enhance American confidence 
in the election system and alleviate some of the barriers that 
seniors face in the election process.
    Colorado's senior population has grown 26 percent since 
1990. The 2000 census counted almost half a million persons 
over age 65 in my State of Colorado. I am proud to say that 
more than 80 percent of these seniors are registered to vote, 
higher than the national percentage.
    Still, seniors in my State of Colorado face challenges 
similar to those faced by seniors across the country. According 
to the Colorado Legal Center for People with Disabilities, 
several reports were filed following the 2006 election claiming 
that seniors were unable to cast votes due to long lines at the 
polling place. Other reports claim that many seniors were 
unable to vote due to lack of transportation and difficulty 
reading the ballots.
    Myself was in some of those very long lines at several 
polling places in Colorado, where seniors had to stand outside 
sometimes until 10 or 11 o'clock at night when the polling 
places had closed at 7. It was an imposing and undue hardship 
on many of them and, indeed, some of them had to leave their 
polling line and forego their right to vote. I think this is 
wrong.
    There are many efforts underway in Colorado to try to 
address some of these concerns. For example, the Colorado Legal 
Center for People with Disabilities is working with the State 
parties. The Centers for Independent Living and the Colorado 
Cross-Disabilities Coalition to increase and improve 
transportation assistance for seniors on election day. These 
efforts are incredibly important and I encourage other groups 
to join the cause.
    The increasing number of seniors across the country support 
the need for policy solutions to the problems that seniors face 
voting.
    I want to thank Chairman Kohl and Senator Smith for putting 
a focus on this particular issue. I would hope that one of the 
outcomes of the hearing is that we might be able to take some 
concrete action to try to make sure that we have a good 
election in this November.
    For example, Mr. Karlawish, your comment about universal 
mobile polling places is something that perhaps we could do, 
Chairman Kohl, with a letter that we might author out of this 
Committee as a result of this hearing that we could send over 
to the Election Advisory Commission, asking them to look at how 
we might be able to implement some of those solutions.
    So again, I thank you very much for this hearing and I 
thank the witnesses for their great testimony this morning.
    The Chairman. Thank you.
    Senator McCaskill.

         OPENING STATEMENT OF SENATOR CLAIRE MCCASKILL

    Senator McCaskill. Thank you very much. I also thank you 
and the Ranking Member for this hearing. It is very important.
    You know, I have kind of been confused by this massive 
effort in our country for voter ID laws. They passed one 
quickly in Missouri, immediately preceding the November 2006 
general election.
    I am, I hope, not one around here to resort to ugly 
partisan politics. I think we need to get away from that.
    But the facts are the facts. I know who pushed this law in 
Missouri and I know why they pushed it. It was very similar to 
the Indiana law and our Missouri Supreme Court threw it out of 
court, threw the law out before the election so it did not go 
into effect.
    If in fact these laws have been introduced in 31 States, 
you would think there would be a massive amount of evidence 
that fraud by misidentification is rampant in this State, in 
this union, in this country. I have yet to see any evidence 
that there is a significant amount of fraud in this country 
based on misidentification at the polls.
    When I was the State auditor I actually did an audit of one 
of the election boards in St. Louis. We did find a few 
problems, but it was more likely someone voting that had a 
felony record that shouldn't have, not that they had somebody 
else's ID or they weren't who they said they were. Or someone 
who actually--they hadn't cleaned up the rolls and somebody who 
had used their IDs to vote two different places on one day. 
Infinitesimal amount.
    But we didn't find--and I am not aware of anywhere where 
there has been found, that people are going to the polls and 
pretending they are somebody they are not to try to vote.
    Now on the other hand, we can all tell lots of stories 
about people who want to vote who do not have this ID. Frankly, 
are going to be confused and discouraged by the requirement 
that they get it. Most of those are seniors.
    The most important point I want to make in this opening 
statement is one out of five African-American seniors in this 
country do not have the documentation because their mothers 
were not allowed to deliver them in a hospital.
    Now really, do we want to make these men and women whose 
parents were not allowed to give birth in a hospital because of 
the color of their skin, do we really want to make it harder 
for them to go and cast their vote in this grand and glorious 
democracy? I do not think we do.
    I think we should be doing the opposite of what many of 
these laws are doing, making it easier in nursing homes, easier 
for those who have been disenfranchised.
    The idea that we are reverting to some kind of public 
policy that is going to put stumbling blocks between those who 
are least advantaged in our society and the ballot box is 
absolutely repugnant to me.
    I appreciate all of your testimony and I appreciate the 
hearing today.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Wyden.

             OPENING STATEMENT OF SENATOR RON WYDEN

    Senator Wyden. Thank you very much, Mr. Chairman.
    I think Senator Smith may have touched on it, but I guess 
it is fair to say the two of us are the country's first mail-in 
United States Senators.
    What has been so striking in this discussion is, at the 
outset, people said vote-by-mail would be beneficial to 
Republicans. Then I happened to win the election so Democrats 
thought it was a good idea and Republicans didn't think it was 
a good idea.
    Finally, the people of our State basically indicated that 
they had enough of all the nonsense, put it on the ballot and 
Democrats and Republicans alike said this works, this makes 
sense, it saves money, it is convenient, it is accessible, 
there is essentially only upside and downside.
    Now, I gather--and I may have not picked up on all of your 
testimony. Dr. Karlawish.
    Dr. Karlawish. Karlawish.
    Senator Wyden. I understand you had a reservation about 
vote-by-mail because you were interested in a more mobile kind 
of system where, in effect, you could get out and see people.
    Now, provision was made in the Oregon system through the 
county elections department for people from the elections 
department, one Democrat, one Republican, to in effect go and 
see those kinds of individuals. We have found that there has 
not been any particular controversy associated with either side 
of the system, the vote-by-mail system nor the going to visit 
people.
    Does that help address the concern that you have that 
people from the counties have done an objective kind of fashion 
so as to ensure integrity for the franchise is addressed?
    Dr. Karlawish. So your State presents a unique situation 
which is there is no polling place to go to. Wrapping around 
that fact, in a long-term care setting what you want to make 
sure is, given the nature of the residents there and their 
disabilities, that their ability to get their absentee ballot 
is facilitated.
    That when it arrives it arrives with election officials it 
isn't stored in a box somewhere so it can be stolen. That 
assistance with completing it is available by elections 
officials, and that election officials take it away from the 
long-term care facility.
    Short of that, what you have is a setup for either not 
getting your absentee ballot or having someone else get your 
absentee ballot, or unscrupulously assist you with it or 
otherwise destroy it, et cetera. So----
    Senator Wyden. On that count we have had no problem with 
anything resembling an institutional setting. In other words 
the people, say, at a long-term care facility--I was director 
of the Gray Panthers for a long time and know those folks--have 
helped make this really flow seamlessly from an institutional 
setting.
    I thought your point with respect to older and disabled 
folks by themselves was an interesting one because, there, 
someone might have a question about whether they were getting a 
ballot, whether they needed assistance. That is why the 
provision that I described seemed to be particularly useful for 
them.
    Does that affect your judgment?
    Dr. Karlawish. The ideal system is one where people who we 
trust go out and deliver ballots. Deliver them, assist people 
who want assistance, and take them back for counting. That is 
the ideal system.
    Senator Wyden. I think we have got every one of those 
features. For purposes of taking back for counting, that is 
essentially the postal system. That is essentially what older 
people have found the most convenient to them, that they can 
put a stamp on something if they are in a senior housing 
project or something of that nature.
    Dr. Karlawish. But in a nursing home--I am not kidding you, 
but the average resident is not keeping a set of stamps and 
keeping their mail.
    So what you would like is a system where at the nursing 
home they show up and say we have got all the absentee ballots 
here for all the residents here who are registered. OK? We 
being two people from the Oregon State Electoral Commission are 
going to be in a room and those who want to come to this room 
to fill out their ballots, come one, come all. Or those who 
can't come to this room we will go to your room and help you 
fill it out.
    We will do this a couple days before election day so that 
there is time to catch people who missed that day. We will then 
take those filled out ballots back to the Oregon Electoral 
Counting Commission and count them.
    Senator Wyden. We are talking past each other. We have 
virtually every one of those features----
    Dr. Karlawish. That is fantastic.
    Senator Wyden [continuing.] In the Oregon vote-by-mail 
system. So you will back it in the future when we want to take 
it nationwide?
    Dr. Karlawish. I think that--I actually like--your system 
as it is essentially like Australia's system, because its paper 
ballots, et cetera.
    If you can assure that elections officials are going to 
facilities without triggers like there has to be more than 20 
absentee ballots or a request to come, et cetera, and doing 
what I described otherwise, that is a great system. Put a stamp 
on it and let us get it out there.
    Senator Wyden. Any of you other panelists want to comment 
on it? We have had it for a decade. No allegations of fraud and 
abuse. I think Senator Smith will recall in our first campaign, 
particularly low-key, quiet, you know, affair that--when I 
prevailed by 18,220 votes. We always say who is counting in 
these kinds of instances.
    Senator Smith was constantly accosted about whether there 
was fraud and the like. To his great credit, he said there 
wasn't any. The system worked well.
    So we have got 10 years worth of history. I think it is 
fine to debate what to do in the future, but my view is if the 
country had this November what has worked for Oregon for a full 
decade we could take care of this problem.
    I know this November, for example, there are people who are 
going to show up at various polling places once again, after 
this debate has gone on and on and on, and they are going to be 
told, no, they don't vote there. They are registered somewhere 
else. They are going to be traipsing all around, hither and 
yon. At some point after you go through this for several hours 
you give up.
    With our vote-by-mail system you don't have any of that. If 
you have any confusion about where you live or any kinds of 
questions with respect to the initial contact you have got 
several weeks to work it out.
    So I want to give you other panelists to weigh in with--an 
opportunity to weigh in with a ringing endorsement of the 
Oregon vote-by-mail system.
    I see my Chairman has his light on and I probably have 
taken more than my share of time. Would any of you other 
panelists or members like to weigh in? I would be interested in 
your thoughts as well.
    Ms. Markowitz. Well, the Secretary of State of Vermont, and 
also the immediate past president of the National Association 
of Secretaries of State. I will tell you that, you know, 
nationally we are really looking closely at vote-by-mail.
    There are other States that are beginning to experiment 
with it more broadly. Like I know in Washington State there are 
some counties there who are conducting all mail elections.
    In Vermont in particular we are not quite ready for it. In 
part it is because we need to wait until our voter rolls are 
cleaned up. The Help America Vote Act for the first time 
required us to put in place a State-wide voter registration 
data base.
    Because of the rules of the Federal Motor-Voter laws, many 
of the towns that had kept the list had voter checklists, 
people who hadn't been taken off because they hadn't given--
hadn't notified the town that they had moved to a new place and 
registered in a new place.
    So until those voting rules are clean, it actually is 
expensive for us. We have looked at it. We would be sending out 
a lot of ballots to people who are moved.
    I suspect though that as time goes on and the Help America 
Vote Act really comes into kind of fruition--you know, it takes 
some years of investment before you get the return--that vote-
by-mail will become more realistic for more places.
    Right now the way I look at it in Vermont is we make it 
very easy for people to vote by mail, to ask to be sent a 
ballot by mail and return it by mail. It is one of the choices 
in our bag of tricks to make it easy and convenient for voters.
    I have been working with Jason on--Dr. Karlawish, excuse 
me--on developing a pilot project to bring mobile polling to 
Vermont this next election to see if that is another tool that 
will make a significant difference, both in access to voting 
and the integrity of the process.
    Senator Wyden. Other panelists? Vote-by-mail?
    Well, thank you all very much. I hope that we will go 
beyond model projects and demonstration exercises.
    I think the country says to itself, at a time when we seem 
to be capable of changing our Blackberries and getting an 
updated, you know, model every 60 days, how can it be that we 
haven't figured out a way to preserve something that our 
country is all about, that the founding fathers felt was so 
sacred.
    We think we have found it in Oregon. Certainly there are 
some logistical questions about communities that may not have 
the voting rolls up to date and the like. That will be true for 
any system. That will certainly be true for any system that 
once again this fall is going to have people, you know, turned 
away, ballots not counted, things of this nature.
    But when you have something where the fundamentals are 
sound, where it is convenient, you save money, people feel that 
it preserves the paper trail, which I know all of you feel so 
strongly about, it just seems to me to be a shame that we don't 
put it in place for the country.
    So I thank you.
    Thank you for the extra time, Mr. Chairman.
    The Chairman. Thank you, Senator Wyden.
    Senator Smith.
    Senator Smith. Thank you, Mr. Chairman.
    I would echo Ron's views on vote-by-mail. It does work for 
Oregon and it is a good model for other States as they look for 
ways to get elections better.
    You know, I generally agree with what Senator McCaskill 
said, that we are arguing around the edges. We don't want to in 
any way prohibit lawful, constitutionally living people from 
voting.
    I am reminded, though, that this really is a problem in 
terms of undermining confidence in the governments that are 
elected in close elections where evidence exists that somebody 
did something wrong.
    Recently in a neighboring State to Oregon there was a 
gubernatorial election that one candidate had won the first two 
recounts. In the third recount the current Governor won by I 
believe 150 votes.
    There was an inescapable fact that in one county there were 
more votes cast than there were registered voters. Not by a 
little, but by a lot. I hear people groan about that all the 
time. That is not fair to the winner or the loser, frankly. It 
does undermine the ability then to go and govern.
    As I think, Wendy, about some of your comments, I don't 
know of any issue since I have been a U.S. Senator that has 
been more divisive in this body than the issue of illegal 
immigration. I don't want an impediment to someone voting to 
require documents that makes it impossible for them to vote.
    But there is a practical issue. I am really asking for your 
knowledge of the law and something that I am hoping to learn 
from you.
    We have Motor-Voter. We have many States who give driver's 
licenses to illegal aliens without any proof of their legal 
right to vote. Or is there something in the State law that 
requires, before you go to Motor-Voter, that they have to prove 
that they are legally in the United States?
    I ask this question because seniors regularly say to me, 
``I am outraged at the thought that my vote will be diluted or 
added to by someone who is not here constitutionally, lawfully 
voting.''
    Ms. Weiser. I think the answer is simple: Federal law--
actually the Motor-Voter law itself--prohibits States from 
registering people who aren't lawfully eligible to vote, 
including noncitizens, as do other Federal criminal laws.
    Senator Smith. So Motor-Voter doesn't automatically 
register driver's license applicants to vote.
    Ms. Weiser. That is right. They must actually affirmatively 
choose to register to vote at the motor vehicles office. It is 
not an automatic registration. They are prohibited from filling 
out the voter registration form unless they are citizens and 
eligible to vote in the State.
    Senator Smith. They have to produce the documents you say 
that they can't produce to get to register.
    Ms. Weiser. To register to vote there is no documentation 
requirement, except in one State, in Arizona, which has 
recently required proof of citizenship in order to register to 
vote. This has been causing huge problems in Arizona and is 
currently in the courts. But everywhere else, you are supposed 
to swear to your eligibility before an election official or on 
your registration form.
    Senator Smith. But swearing and proving may be two 
different things. I mean, it is a crime to swear to a 
falsehood. I acknowledge that. It is a serious Federal offense. 
But it doesn't mean they are proving they are constitutionally 
lawfully voting then.
    Ms. Weiser. It is true that there is no proof of 
citizenship required in order to register to vote across the 
country. Photo ID requirements that are being put in place 
across the country also don't require proof of citizenship, and 
so they don't do anything to prevent this problem that you are 
suggesting people are afraid of, of noncitizens voting.
    Senator Smith. Do you have a suggestion for how we strike 
this balance? Because I don't know that we will ever get it 
perfect, but we need to get it nearly perfect for the sake of 
the integrity of our democracy.
    Ms. Weiser. Well, right now there has been a pretty good 
balance struck by Congress and across the country and we can 
see the results. We actually don't have any proven cases, or 
almost any proven cases of in-person voter fraud, the kinds of 
fraud targeted by these ID laws.
    Of the about 250 allegations of voter fraud that were 
submitted before the Supreme Court--we investigated all of 
them--most of them were either debunked or otherwise were 
unsubstantiated. I think there were only nine unsubstantiated 
allegations and all the other allegations were not reflective 
of in-person voter fraud.
    So whatever problems you are seeking to address do not get 
addressed by these kinds of ID bills.
    Senator Smith. That is very helpful. Thank you.
    Another legal question I would like to ask, I think to you, 
Michael. You talk about mental incapacity. If someone cannot 
express their volition, is there a legal point at which they 
don't vote? They don't get to vote or someone doesn't get to 
vote for them?
    Mr. Waterstone. Practically or legally?
    Senator Smith. Legally.
    Mr. Waterstone. Actually, Secretary Markowitz and Dr. 
Karlawish, I think have actually done more work in this area 
than I have----
    Senator Smith. Any of you. I am just really curious because 
this would be a rare instance. But I mean, if somebody has 
mental incapacity----
    Mr. Waterstone. Yes.
    Senator Smith [continuing.] They cannot manifest their 
volition, their choice, what do you do?
    Mr. Waterstone. There are----
    Senator Smith.Do they not vote?
    Mr. Waterstone. There are a number of States that expressly 
disenfranchise certain categories of people with mental 
disabilities. Some States provide that people that under 
guardianship are automatically disenfranchised.
    Actually, in one case a federal district court in Maine 
held that this violated both the Equal Protection clause and 
the Americans with Disabilities Act. There was recently a case 
in the Eighth Circuit that came out the other way on that.
    So that is the legal frontier at which that occurs, States 
that attempt to disenfranchise certain categories of people. In 
terms of how that capacity assessment can and should be done 
correctly and what questions should be asked, that is really an 
area that Dr. Karlawish has researched.
    Dr. Karlawish. Yes. I think the issue of the capacity to 
vote is one that its assessment resides, and should reside if a 
State wants to deal with that issue, in the courts in the 
context of, say, guardianship hearings and here is why.
    Canada, the entire country, has no provision for what it 
means to be competent to vote. The State of Illinois as well 
has no provision for what it means to be competent to vote. You 
think, well, what is going on here, you know, in Canada.
    Well, the answer is is that voting capacity actually is 
ultimately a performative capacity. What I mean by performative 
capacity--it is a weird statement--is it is something that 
someone ultimately has to do.
    So someone says, you know, ``I want to vote'' and then 
proceeds to pick. If somebody needs to assist them picking, 
they read the ballot to them and they say, ``Which is your 
choice?'' If they can't perform that act and make a choice they 
can't vote. So it works itself out functionally.
    As for the issue of deeming someone not competent to vote, 
that is I think a separate matter for the courts if the courts 
in a State choose to want to do that. In this country it is 
State by State.
    But I want to again remind. Illinois has no provision for 
that. Canada dropped it in the 1980's.
    Senator Smith. They have had problems in Chicago with that 
very issue, I think. Just kidding.
    I appreciate that and your answers have been great. I think 
you all very much for your being here.
    I ask these questions in part because these are--as many of 
you have noted, this is an issue that is going to grow as our 
society ages. The more of the blanks we can fill in and get it 
right, the more valid will be election results in terms of a 
day of decision and a moving forward in another chapter in our 
democracy.
    But if our elections are filled with loopholes and 
allegations of fraud, which I suppose will always happen in 
some place, some corner of the country, it does get in the way 
of we the people manifesting our will.
    I just thank you all for your service in this area and for 
your contribution today.
    The Chairman. Thank you very much.
    Senator McCaskill.
    Senator McCaskill. Thank you, Mr. Chairman.
    I want to tell the secretary of state that my son goes to 
college in Vermont, but he did go with me and vote absentee for 
next Tuesday before he came back to college. So if he shows up 
when you all have your primaries----
    Ms. Markowitz. We will watch for him.
    Senator McCaskill [continuing.] Put him in jail.
    I am--it was interesting to hear from you, Ms. Weiser, that 
what you said in response to a question was essentially what I 
have found. That is that this myth, this mythical problem that 
is out there about in-person voter ID just simply isn't 
happening, that someone is fraudulently using an ID or trying 
to be someone they are not.
    Does anyone on the panel--do they know of any example that 
has occurred in this country, where someone has showed up 
without a picture ID and tried to pretend they are someone else 
and tried to vote?
    Ms. Markowitz. Well, in Vermont we had one instant.
    Senator McCaskill. One. I found one.
    Ms. Markowitz. It was--and actually, when you hear it you 
will chuckle because it wasn't nefarious. It was a fellow who 
came and voted in the morning and then he went home.
    It turns out his dad wasn't feeling so well so he went out 
to do some chores for his father. He was going to pick up his 
prescriptions and, you know, some groceries and then stop to 
vote for him and--because he wasn't going to be able to make it 
down.
    A fellow came in to check in and he said, ``Well, I am just 
going to vote the way my father told me to for him.'' He just 
didn't get it, that you can't vote for somebody else. It is 
true, that is not, you know, logical to everybody.
    The Attorney General's office did not prosecute in that 
case. He didn't actually cast the ballot. He was recognized 
after he had gone into the ballot box, though, and so the 
ballot he had taken was spoiled.
    Senator McCaskill. I want to ask if any of you are aware of 
cases like this. I do think that when someone comes into a 
nursing home and tries to prey on the members and cast their 
ballots, there are mechanisms within the system that catches 
that.
    I happen to have lived a real life. When I was a very young 
assistant prosecutor in Kansas City back in the late 1970's 
there was an owner of a very large senior center nursing home 
that came to the prosecutor's office and said I want you all to 
prosecute this man. He comes around every election and goes up 
and down the hall and votes everyone and the nursing staff and 
everyone realizes he is doing them.
    He is in fact marking the ballot or telling them who to 
vote for. He is preying on these elderly people. Most of them 
don't know what is happening. He is, you know, he was doing it 
in a massive way. I mean, he was not just going to one or two 
people. He was trying to get at least 20 or 30 votes out of 
every nursing home.
    So the owner of the nursing home came to the prosecutor's 
office and guess who got the file? I actually did a jury trial 
in the courtroom of voter--absentee voter fraud against this 
man who had made a career out of delivering so many votes for 
his party every election in nursing homes.
    It was an interesting case. It was a jury trial. He pled 
not guilty. In fact there were two of them, he and his partner, 
who was a woman who did this. Unfortunately, half of our 
witnesses died before we could get the case to trial. But they 
were convicted and they were disenfranchised. These were big 
activists in the party of their choice.
    So I have seen first hand that if there is abuse there are 
mechanisms out there in the community that brings it to the 
attention of the authorities, particularly if it is being done 
in a methodical way.
    So I really believe that if--now, are there other instances 
that you all are aware of? Doctor, are you aware of instances 
like that where that is ongoing in some of these nursing homes 
and senior centers?
    Dr. Karlawish. Yes. I would say if you just type into 
Lexus-Nexus long-term care/nursing home election election 
fraud, and make it a broad search of all newspapers, you will 
find a ream of local newspaper reports of just the kind of 
stuff you are talking about.
    If you go to our Web site, pennadc.org, and click on 
Facilitating Voting as People Age--we have a reference to 
several of those stories.
    Whether they are true or not is, I think, really not the 
issue. The issue is that the local nursing home becomes the 
lightening rod for accusations of fraud, usually by a 
disgruntled loser of a close local race.
    I cited that, for example, earlier in my testimony, just in 
Philadelphia a guy lost by 120 votes for a council race. He 
cites a bunch of absentee ballots where they all bear similar 
markings that look like one person filled them all out at a 
local long-term care facility. He cites fraud. He wants 
redress. He is angry. Whether he is right or wrong isn't the 
issue. The point is that nursing homes are this lightening rod 
for fraud.
    Personally and, well, conceptually, I don't think that 
waiting for accusations of fraud and an investigation of it is 
the way to prevent that fraud. Because really, the ability to 
get to trial, such as you so skillfully did, is really tough to 
do. If that is the--.
    Senator McCaskill. No, I was just the low assistant on the 
totem pole. I got the file because I was not getting homicides 
and burglaries and robberies.
    Dr. Karlawish. Look where it got you.
    Senator McCaskill. Well--.
    Dr. Karlawish. You know, when I look at that--and I think 
though--and if you then look at that problem, the problem is 
that it is only one side of the problem. If that is your only 
focus it tends then to lead to ways that, ultimately I am 
afraid, could stigmatize and disenfranchise nursing home 
residents. Because the other side is the story of the people 
who wanted to vote who didn't make it in time for 
registration----
    Senator McCaskill. Right.
    Dr. Karlawish [continuing.] Never had the chance to get 
their absentee ballot ordered. When the ballot showed up they 
weren't helped to fill it out. Or they weren't registered for 
an absentee ballot, because most States are not like Oregon, 
and they couldn't get to the polling site that is on the other 
side of town where their nursing home--you know, because they 
are in a nursing home that is on the other side of the city.
    So that is why I think a system that addresses both the 
fraud that you prosecuted successfully, as well as the people 
who went to vote. A third of the nursing homes in both the 
entire State of Virginia and the city of Philadelphia, one-
third of the nursing homes reported that there were some 
residents who wanted to vote but could not vote because of 
these kind of mistakes and errors.
    I want a system that addresses both issues. That model is 
out there. It is done in Australia. It is done in Canada. There 
are setups in the State of Maryland. Sounds like Oregon may 
have something like that, although that is fairly recent 
because we didn't capture that in our search of the laws that 
went back a few yeas ago done by Charlie Sabatino and 
colleagues at the American Bar Association.
    That system is a system of mobile polling, where we don't 
rely on a well-meaning person who wants to come in and gather 
the votes, and potentially steal the votes, or an overworked 
busy social worker or activities director who has got a lot of 
other things on ``typically'' her plate to deal with in 
addition to getting people registered and voted. Getting them 
to the polls if they happen to be registered at another part of 
town.
    I want a system where we come in, we get them registered, 
we help them cast their ballots, we bring those ballots back 
and we count them. That is the system we need in this country.
    Senator McCaskill. Well, that certainly makes sense. I 
think if we could do that, and especially as my generation ages 
and we have more and more and more and more and more and more 
people that are in these assisted living centers and long-term 
care facilities it is important.
    By the way, we can find out where they all are because most 
of them are getting some kind of services----
    Dr. Karlawish. Right.
    Senator McCaskill [continuing.] Through the government in 
one way or another.
    So I think the work that we are doing here is very 
important, Mr. Chairman, and I appreciate the hearing and I 
appreciate your opportunity to allow me to ask questions.
    Thank you very much all of you.
    Mr. Waterstone. Mr. Chairman, just one point----
    The Chairman. Go ahead.
    Mr. Waterstone [continuing.] I want to make. I would hope 
that the efforts to develop mobile polling are not tied to 
efforts to have States adopt universal absentee balloting or 
postal voting. The reason simply is that universal postal 
voting, there is a whole other set of issues which I am not at 
all accomplished or skilled to talk about.
    But my understanding just as a citizen is that some people 
have strong views that they shouldn't do it. People have to go 
to the polling place. I wouldn't want to get this important 
issue lost in the other issue of is it good to have all postal 
voting or not. In other words sort of a baby-bathwater problem.
    The Chairman. The issues are separate. They are very 
separate, right. We shouldn't confuse one with the other.
    Mr. Waterstone. Right.
    The Chairman. We talked this morning about the Oregon 
system now quite often. I think you, Ms. Markowitz, said you 
didn't think your State was ready for it. I didn't quite 
understand what you were saying.
    Ms. Markowitz. In order for an all vote-by-mail system to 
work--the way it works in Oregon is everyone on the checklist 
gets a ballot. That means that your voter checklist has to be 
very accurate and up to date.
    Frankly, in Vermont we are still getting up to speed there. 
It is going to take some years of--the way that the Federal 
Motor-Voter law works is that when somebody moves, unless they 
have given you written permission or verbal permission to take 
their name off of your checklist, or unless you get a 
notification that they registered in a new location, they have 
to stay on your checklist until they have missed two general 
elections. OK? So that is a long time.
    But pretty soon we are going to be there. You know, we are 
going to be able to drop off these folks who we know have 
moved. So in some of our larger communities that have a lot of 
transient population, they might have, oh, 5,000 on the voter 
registration rolls that they know have lived somewhere else.
    Now, under our new Help America Vote Act statewide voter 
registration data base all new registrants aren't going to have 
that problem. We have a system in place so that there is sort 
of an email notification within the State when somebody 
registers in a new place. There is a duplicate check capacity. 
But it is the backlog of old stuff that was imported into our 
fancy new system.
    So for the moment it is not practical. I don't have a town 
clerk who will--because we run our elections by town--who would 
feel confident in sending out ballots on the existing checklist 
because they all know that we haven't yet cleaned up our rolls. 
We have got folks on the checklist who they knew moved, but who 
they are not under Federal law able to take off the checklist 
yet.
    The Chairman. So you are suggesting that while it may work 
in a State like Oregon with its particular geography and 
demographics, all across our country it would not be practical 
today.
    Ms. Markowitz. Well, every State has its own unique 
history, practices, traditions and laws. So it is very 
successful in Oregon. I think we can all learn from that. There 
probably are places where it would work quite well, but not 
everywhere.
    The Chairman. Anybody disagree with that?
    Mr. Waterstone. If I could just add one point to that. When 
we are talking about absentee voting or mail-in voting, it is 
also important to remember that absentee balloting or ballots 
that people fill out at home are not inherently in and of 
themselves accessible.
    The ability to cast a secret and independent ballot, to the 
extent someone can and wants to, is a value that is protected 
in the polling place. If we are talking about voting in less 
traditional places, that is something we need to think about 
also, even in the absentee format. There is work being done on 
that, experimenting with HTML voting, internet voting. I know 
in Europe they have worked on text message voting.
    So as we are looking ahead in this and thinking about 
perhaps changing the traditional role of the polling place, I 
think we need to remember that secret and independent ballots 
are something that many people who vote absentee are able to 
do. We need to think about extending that value to the extent 
we can to all citizens.
    The Chairman. Anybody have any strong arguments with 
respect to Dr. Karlawish and what he talked about mobile 
voting. I think we all understand what it is and he went into 
it in some great detail. Is that the place we really want to 
get to?
    Ms. Bovbjerg. If I may just jump in on disability and 
voting more broadly. What we heard from advocates for disabled 
people was this sense that the American thing to do, the thing 
that the general population does, is what they want to be able 
to do, too.
    So in thinking about different ways of providing access, 
including alternative methods, it is just important to remember 
that if the general population is going to the polls, those 
polls are supposed to be accessible to all Americans, including 
people with some form of impairment.
    So if voting by mail is done--if the general population is 
voting by mail as in Oregon, that is a little different. But 
that is not necessarily what disability advocates would see as 
being full access.
    The Chairman. I see.
    Senator Smith. If I may just add one thing, that I think 
from our work that we have done after the 2000 and 2004 
elections, one of the issues that I haven't heard discussed 
here is that voters themselves want alternatives. Older voters 
want alternatives. They don't want to be able to vote only at 
the polls or only absentee. They want some alternatives.
    Early voting, for example, that goes on for 20 days or 
something, allows them to choose a day with good weather to go 
vote. Whereas they don't have a choice on election day as to 
what the weather is like. If it is icy and snowy they may not 
go. So that gives them options.
    So that they want the alternatives. They want the 
alternatives that exist for everybody else. But it is not--for 
example, we just finished some work on bilingual voting, 
particularly elderly Chinese voting. Voters in Boston and Los 
Angeles actually prefer to do absentee voting because it gives 
them more time to go over the ballot and they sometimes have 
translation issues. So they really don't--I mean their 
preference is to get an absentee ballot, not to go to the polls 
and vote.
    So I think the issue here is the alternatives that are 
available and people have choices that they themselves can 
exercise.
    The Chairman. I have a bill--I would like your comment on 
it--that would establish weekend voting as preferable to voting 
on a Tuesday. You all are somewhat expert on elections, but 
interested in your opinion on that.
    Would we get a much higher participation in this country if 
we had weekend voting as opposed to voting on the first Tuesday 
in November?
    Ms. Markowitz. You might have an easier time getting poll 
workers.
    The Chairman. Easier time what?
    Ms. Markowitz. Getting poll workers.
    The Chairman. Yes. Poll workers. But----
    Ms. Markowitz. This is something that we have heard----
    The Chairman  [continuing.] In terms of the----
    Ms. Markowitz [continuing.] A lot about----
    The Chairman [continuing.] In terms of our participation in 
this country and, you know, where we are and where we want to 
get to, without respect now to disabled or people in long-term 
care settings.
    If we had weekend voting, you know, the argument being the 
first Tuesday in November is no longer a time when everybody 
can get out to vote. They are all too busy, or so many people 
are too busy. Would weekend voting in your opinion 
significantly increase participation in this country?
    Ms. Markowitz. I believe it has that potential. What is 
interesting in Vermont is we hold our local elections in March, 
the first Tuesday in March and--but the way we do it is in town 
meeting, where people come and they stay for most of the day 
and debate issues and vote on issues and on the local issues.
    Some years ago we permitted communities to move town 
meeting to Saturday or Sunday before that Tuesday. We did find 
an increase in some towns, but in some towns we saw no change 
at all.
    The difference though between our experience of town 
meeting and this proposal is the commitment of time. You know, 
when you come to town meeting you have to be prepared to stay 4 
hours or more. When you go to vote you are going in and out.
    I think a weekend election would help with election 
administration. I think it is true it would make it easier to 
find volunteer poll workers. But there are a lot more people 
who aren't working, and so it would make it more convenient.
    It might spread the work out. You know, the other 
challenge, you know, when you see the lines at the end of the 
day because everybody is clustering to come to vote when they 
are done with work. There are slower times, you know, 10 in the 
morning, 2 in the afternoon. Weekend voting might help smooth 
out some of those issues as well. So I think it is a fine idea.
    The Chairman. Ms. Weiser.
    Ms. Weiser. If I may just add one more item on the table. 
We have talked about a range of barriers to older Americans and 
Americans with disabilities. One that isn't on the table is 
voter registration and the voter registration system.
    I did want to flag that the Motor-Voter law was intended 
also to make it easier for the many Americans who use 
disability agencies and other social service agencies, to 
register to vote. That has not been implemented very well 
across the country. There are really a range of other steps 
that can be taken to make registration more accessible for many 
older Americans, too.
    The Chairman. Any other comments from the panel? Or 
anything at all with respect to our discussion this morning?
    You have been very, very helpful. It has been a very 
informative panel and we thank you so much for coming.
    Mr. Waterstone. Thank you.
    Ms. Bovbjerg. Thank you.
    With that, the Committee is adjourned.
    [Whereupon, at 12:16 p.m., the Committee was adjourned.]

































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