[Senate Hearing 110-787]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-787

PROTECTING THE RIGHT TO VOTE: OVERSIGHT OF THE DEPARTMENT OF JUSTICE'S 
               PREPARATIONS FOR THE 2008 GENERAL ELECTION

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 9, 2008

                               __________

                          Serial No. J-110-117

                               __________

         Printed for the use of the Committee on the Judiciary





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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel


















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     1
    prepared statement...........................................    91
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   144

                               WITNESSES

Anderson, Keshia, Chesterfield, Virginia.........................    20
Becker, Grace Chung, Acting Assistant Attorney General, Civil 
  Rights Division, U.S. Department of Justice, Washington, D.C...     3
Daniels, Gilda R., Assistant Professor of Law, University of 
  Baltimore School of Law, Baltimore, Maryland...................    23
O'Leary, Bryan P., Capitolink Director, Crowell & Moring LLP.....    22
Sabin, Barry, Deputy Assistant Attorney General, Criminal 
  Division, U.S. Department of Justice, Washington, D.C..........     5

                         QUESTIONS AND ANSWERS

Responses of Grace Chung Becker and Keshia Anderson to questions 
  submitted by Senators Leahy, Feinstein, Cardin, Biden and 
  Kennedy........................................................    30

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Caroling Fredrickson, Director 
  and Deborah J. Vagins, Legislative Counsel, Washington, D.C., 
  letter.........................................................    67
Anderson, Keshia, Chesterfield, Virginia, statement..............    72
Appel, Chris, Student Association for Voter Empowerment, 
  statement......................................................    75
Asian American American Justice (``AAJC''), Vincent A. Eng, 
  Acting Exective Director Deputy Director, Washington, D.C., 
  prepared statement.............................................    79
Becker, Grace Chung, Acting Assistant Attorney General, Civil 
  Rights Division, U.S. Department of Justice, Washington, D.C., 
  statement......................................................    81
Clarke, Kristen, Co-Director, Political Participation Group, 
  NAACP Legal Defense and Educational Fund, Inc., Washington, 
  D.C., statement................................................    94
Coleman, William T., Jr., Senior Partner and The Senior 
  Counselor, O'Melveny & Myers LLP, Washington, D.C., letter.....   103
Daniels, Gilda R., Assistant Professor of Law, University of 
  Baltimore School of Law, Baltimore, Maryland, statement........   106
Herbert, J. Gerald, Executive Director & Director of Litigation, 
  the Campaign Legal Center, Washington, D.C., statement.........   117
O'Leary, Bryan P., Capitolink Director, Crowell & Moring LLP, 
  Washington, D.C., statement....................................   146
National Asian Pacific American Bar Association, Les Jin, 
  Executive Director and Helen B. Kim, President, Washington, 
  D.C., letter...................................................   155
Sabin, Barry, Deputy Assistant Attorney General, Criminal 
  Division, U.S. Department of Justice, Washington, D.C., 
  statement......................................................   157
Smith, Hon. Lamar, and Hon. Daniel Lugren, U.S. House of 
  Representative, Washington, D.C., letter.......................   164

 
PROTECTING THE RIGHT TO VOTE: OVERSIGHT OF THE DEPARTMENT OF JUSTICE'S 
               PREPARATIONS FOR THE 2008 GENERAL ELECTION

                              ----------                              


                       TUESDAY, SEPTEMBER 9, 2008

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:21 p.m., in 
room SD-562, Dirksen Senate Office Building, Hon. Ben Cardin, 
presiding.
    Present: Senators Cardin, Whitehouse, Cornyn, and Coburn.

 OPENING STATEMENT OF HON. BEN CARDIN, A U.S. SENATOR FROM THE 
                       STATE OF MARYLAND

    Senator Cardin. The Senate Judiciary Committee will come to 
order. First, let me thank Chairman Leahy for allowing me to 
chair's today hearing. I also want to thank Senator Kennedy and 
Senator Kennedy's staff for the work they did in helping us 
prepare for today's hearing. We certainly wish him a speedy 
recovery and look forward to Senator Kennedy's return shortly 
to the United States Senate.
    Today the Judiciary Committee will receive testimony on the 
subject of ``Protecting the Right to Vote: Oversight of the 
Department of Justice's Preparations for the 2008 General 
Election.''
    During the 2008 Presidential primary season, many States 
have witnessed record-breaking new voter registrations and 
voter turnout at the elections. I have particularly been 
encouraged to see so many young people becoming energized about 
the candidates in this election, which will help shape our 
Nation's future for many years to come.
    That is going to present a challenge for our election 
system. We are going to have a lot of new first-time voters who 
are going to show up in November to vote. We are going to see 
record numbers, and if prior elections are any indication, we 
know that there are likely to be some problems as far as the 
voting equipment is concerned, the ballots, et cetera. And one 
of the questions for today's hearing is whether the Department 
of Justice is prepared to help to make sure that every eligible 
voter who wants to vote has the opportunity to cast his or her 
ballot on November the 4th.
    Today's hearing will focus on to what extent the Department 
of Justice is prepared, or unprepared, for the new challenges 
we expect to face in the 2008 elections. I must tell you that I 
am concerned as to how well prepared we are.
    Over the past 2 years, this Committee has undertaken 
extensive investigations into the inappropriate role that 
politics has played in the Department of Justice. When it comes 
to the Civil Rights Division specifically, I am gravely 
concerned that the Division has lost its way from its 
historical mission to protect the civil rights of all 
Americans, particularly the most vulnerable among us.
    The Civil Rights Division, in particular, has suffered 
terrible stains on its reputation under the Bush 
Administration, in particular during the tenure of former 
Attorney General Alberto Gonzales. It has had a very poor 
record of filing disparate impact cases and pattern and 
practice cases, and it has not made it a priority to file cases 
to protect African-Americans from discrimination. The Civil 
Rights Division failed to authorize a single case alleging 
discrimination in voting on behalf of African-American voters 
between 2001 and 2006. In particular, I have been concerned 
that the Justice Department has been reluctant to file Section 
2 Voting Rights Act cases alleging minority vote dilution.
    I am disturbed that the Civil Rights Division has also let 
partisan politics influence its personnel and litigation 
decisions, including the preclearance of Georgia's restrictive 
voter identification law in 2005--which overruled and was 
contrary to the recommendations of career staff.
    I look forward to hearing from today's witnesses from the 
Department of Justice as to what steps they are going to take 
before the elections to ensure that all eligible votes are 
counted and that voters are not disenfranchised.
    I want to again ask the Justice Department if they have the 
tools necessary to combat deceptive practices in the upcoming 
election. One of the concerns is that we have laws on the 
books, we have tools available. Are they adequate? We have seen 
practices in the 2004 and 2006 elections in which misleading 
information was distributed. We have seen flyers that tell 
people that if they have outstanding parking tickets, they are 
in jeopardy of being arrested. We have seen the wrong election 
date handed out. We have seen information that has been 
deceptive as to endorsements, and they have been handed out in 
minority communities in an effort to try to diminish the 
importance of minority voters in a given election. That goes 
well beyond what is acceptable in American politics, and I know 
the elections are difficult circumstances, and we have got to 
be prepared to defend our records. But there are steps that you 
cannot go beyond, and I think in American politics we have seen 
in the last couple of election cycles that that has happened.
    My question for the Department of Justice: Are they 
prepared to make sure that efforts to diminish minority voters 
in the 2008 election will not be tolerated? And do they have 
enough tools to deal with it? We have legislation that has been 
approved by this Committee, that has been approved by the House 
of Representatives, and I am disappointed that we have not been 
able to get that legislation enacted. I think the Department of 
Justice could help us a great deal by working out the last 
remaining details. If those tools are needed, let us get it 
done. Let us work together to give you all the tools you need 
so there is a clear message to the American public that in 2008 
we are going to do everything in our power to make sure that 
the intent of the Civil Rights Acts, that the intent of the 
action taken over the last hundred-and-some years to protect 
all voters in this country will be aggressively pursued by the 
Department of Justice.
    I look forward to hearing from all the witnesses, including 
our second panel of witnesses, who I think will give us some 
additional information to make sure that we are properly 
prepared for the November elections.
    And, with that, I would recognize my colleague, Senator 
Coburn.
    Senator Coburn. I will defer an opening statement.
    Senator Cardin. With that, we will go immediately to our 
panel of witnesses. May I ask our first panel if they would 
please stand first to be sworn.
    Do you affirm that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Ms. Becker. I do.
    Ms. Sabin. I do.
    Senator Cardin. Our first panel consists of Grace Chung 
Becker, who currently serves as the Acting Assistant Attorney 
General in the Civil Rights Division in the Department of 
Justice. She supervises approximately 650 to 700 employees and 
ten litigating sections. Ms. Becker previously served as the 
Deputy Assistant Attorney General in the Division from March 
2006 through December 2007. She has also worked as counsel to 
the Senate Judiciary Committee for Senator Hatch.
    Barry Sabin presently serves as the Deputy Assistant 
Attorney General in the Criminal Division of the Justice 
Department. Mr. Sabin started in that position in January of 
2006 and is responsible for overseeing the Fraud Section, 
Criminal Appellate Section, Gang Squad, and Capital Case Unit. 
A Federal prosecutor since 1990, Mr. Sabin served as chief of 
the Criminal Division's Counter terrorism Section from 2002 
until 2006.
    We will be glad to hear from you. Your entire statements 
will be made part of our record, without objection.

  STATEMENT OF GRACE CHUNG BECKER, ACTING ASSISTANT ATTORNEY 
  GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, 
                        WASHINGTON, D.C.

    Ms. Becker. Good afternoon, Chairman Cardin, Senator 
Coburn, members of the Judiciary Committee. It is an honor to 
appear today to talk to you about what the Civil Rights 
Division is doing to prepare for the 2008 election.
    As Senator Cardin noted, this is an unprecedented election 
year. We know that record numbers of voters are registering 
across the Nation and record numbers are expected on November 
4th.
    These exciting developments present challenges to States--
which have primary responsibility for administering elections--
and the Justice Department is doing its part in actively 
training Federal personnel, reaching out to State and local 
governments and dozens of civil rights organizations and 
continuing its enforcement of Federal voting laws in this 
election season.
    I am fortunate to have a tremendously talented and hard-
working team of approximately 80 attorneys and non-attorneys in 
the Voting Section, and I am proud of their accomplishments.
    Since 2006, we have filed seven cases under Section 2 of 
the Voting Rights Act involving vote dilution and voting 
discrimination. In addition, I have an approved an eighth case 
under Section 2 on behalf of African-American voters that has 
not yet been filed.
    Our lawsuits have made a difference. In Euclid, Ohio, the 
first African-American was elected to the city council in 
March. In Osceola, Florida, the first Latino was elected to the 
school board just a couple of weeks ago. And in November, 
voters in Georgetown County, South Carolina, will have the 
opportunity to elect school board members based upon relief we 
obtained in creating three majority African-American districts. 
In addition, we continue our record-high number of lawsuits 
under the language minority provisions and voter assistance 
provisions of the Voting Rights Act and the Help America Vote 
Act.
    The Division has also worked to ensure that States meet 
their obligations to provide voter registration opportunities 
at public assistance agencies, as required by Section 7 of the 
National Voter Registration Act. We filed lawsuits in Tennessee 
and New York, settled a case in Arizona; and based upon our 
investigations in Nebraska and Iowa, we were able to obtain 
voluntary compliance in the form of new State legislation.
    The NVRA also ensures that new voters can vote on election 
day when an applicant submits a valid voter registration 
application that is received or postmarked by 30 days before a 
Federal election or by the State law deadline, whichever is 
less. It also prohibits States from removing ineligible voters 
from the voter list within 90 days of a Federal election. Five 
of the eight cases that we have filed under Section 8 include 
allegations that defendants either failed to add properly 
registered voters or improperly removed eligible voters.
    As you know, the Supreme Court held that Indiana's voter 
identification law is constitutional on its face. It is 
important to emphasize that the Court also held that 
individuals are allowed to file suit if a voter ID law is 
applied to them in an unconstitutional manner.
    In addition, the Civil Rights Division can take action if 
an ID law or any voting law is enforced in a discriminatory 
manner. For example, this summer, we filed and favorably 
resolved a Section 2 case in Penns Grove, New Jersey. The 
lawsuit included allegations that Hispanic voters were being 
required to show more identification than white voters, and 
this is in a State that does not have a voter ID law.
    I emphasized these points during my recent discussion with 
State and local officials. And with so many of our men and 
women in uniform now overseas, the Voting Section is also 
working hard to protect the franchise for service members and 
their families. Last month, I joined the Department of Defense 
in sending letters to all 50 States emphasizing the need to 
provide at least 45 days for absentee ballots to be mailed and 
returned. We will continue to work with the States and, if 
necessary, file lawsuits to ensure that soldiers, sailors, 
airmen, marines, and other overseas citizens are afforded a 
full opportunity to participate in Federal elections.
    And, lastly, the Division's election monitoring program is 
among the most effective means of ensuring that Federal voting 
rights are respected on election day. So far during calendar 
year 2008 we have sent 364 Federal observers and 148 Department 
personnel to monitor 47 elections in 43 jurisdictions in 17 
States.
    On November 4th, we will coordinate the deployment of 
hundreds of Federal Government employees in counties, cities, 
and towns across this country. The Department will have a toll-
free hotline with interpretations services, fax number, and 
Internet-based mechanisms for reporting problems.
    Thank you very much, and I will turn it over to Mr. Barry 
Sabin.
    [The prepared statement of Ms. Becker appears as a 
submission for the record.]
    Senator Cardin. Mr. Sabin.

 STATEMENT OF BARRY SABIN, DEPUTY ASSISTANT ATTORNEY GENERAL, 
CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Ms. Sabin. Good afternoon, Chairman Cardin, members of the 
Judiciary Committee. I appreciate the opportunity to appear 
before you today to discuss the Criminal Division's efforts to 
enforce Federal laws relating to the corruption of the 
franchise and attendant criminal violations.
    As you are aware, the Justice Department has met on a 
number of occasions this year with members of this Committee's 
staff to discuss the Department's established policies 
regarding pre-election criminal investigative activities and 
other issues of interest to the Committee. Additionally, on 
June 6th of 2008, Criminal Division and Civil Rights Division 
representatives provided a briefing to the United States 
Commission on Civil Rights. In these forums, the Justice 
Department outlined the roles of the respective Divisions in 
the enforcement of Federal laws that are designed to make 
voting accessible and cheating more difficult. The Department 
remains committed, in both words and action, to ensuring that 
we effectively implement these responsibilities not only during 
this election year but for future elections as well.
    Dating back to the creation of the Public Integrity Section 
in 1976, the Criminal Division has been responsible for 
supervising election crime investigations and prosecutions 
initiated in United States Attorneys' Offices throughout the 
country. In 1980, an Election Crimes Branch was created within 
the Public Integrity Section to oversee the handling of these 
cases.
    While Public Integrity attorneys on occasion prosecute 
election crime cases, most of these cases are prosecuted by 
Assistant United States Attorneys in U.S. Attorneys' Offices 
across the Nation.
    From an operational perspective, the Criminal Division's 
oversight of election crime matters is designed to ensure that 
the Department's nationwide effort to combat election fraud and 
campaign financing crimes is consistent, impartial, and 
effective. Although the Public Integrity Section does not have 
formal veto authority over the investigation and prosecution of 
Federal election crimes, U.S. Attorneys' Offices are required 
to consult with the Public Integrity Section before taking 
certain actions. With respect to election fraud matters, such 
as vote buying and ballot box stuffing, a U.S. Attorney's 
Office must consult with the section before commencing a grand 
jury investigation, requesting that the FBI conduct a full-
field FBI investigation, or bringing criminal charges. Such 
consultation is also required before subpoenaing election 
materials in the possession of State and local election 
officials and other actions prior to an election. Additionally, 
the Criminal Division has provided written guidance to U.S. 
Attorney's Offices on the applicable laws and investigative 
strategies governing this sort of crime.
    On a frequent basis, these Criminal Division attorneys 
closely coordinate with their counterparts in the Civil Rights 
Division, particularly that Division's Voting and Criminal 
Sections. This inter-Division consultation assists in the 
effective enforcement of both election crime and voting rights 
matters.
    In October of 2002, the Attorney General announced the 
establishment of a Department-wide Ballot Access and Voting 
Integrity Initiative to spearhead the Department's increased 
efforts to protect voting rights and to combat election fraud. 
The initiative expands on the Department's longstanding 
District Election Officer Program, which requires each United 
States Attorney's Office to designate at least one Assistant 
United States Attorney to handle the investigation and 
prosecution of election crimes and to serve as a liaison with 
the Civil Rights Division on ballot access issues within its 
District. In 2006, the FBI established a similar program, which 
requires that each of its 56 Field Divisions designate a 
special agent to serve as Election Crime Coordinator.
    Another critical feature of this initiative requires that 
the Criminal Division, jointly with the Civil Rights Division, 
organize and present annually a Ballot Access and Voting 
Integrity Symposium, which is an intensive annual training 
event.
    Since the initiative was announced, a total of seven such 
national training events have been held, the most recent of 
which took place on July 1st and 2nd of this year. The Attorney 
General personally addressed the prosecutors and agents and 
discussed the importance of both protecting the voting rights 
of all Americans and safeguarding the electoral process. In a 
March 5, 2008, memorandum to all Department employees, the 
Attorney General had emphasized that politics should play no 
role in the in the investigation or prosecution of election 
crimes.
    A final critical feature of the initiative requires each 
United States Attorney's Office and each FBI Field Division to 
establish and maintain a close liaison with State law 
enforcement and election administrators concerning ballot 
access and election integrity complaints.
    The Criminal Division and the Justice Department's criminal 
prosecutors in the United States Attorney's Offices complement 
the work of the Civil Rights Division in election matters. The 
Civil Rights Division is responsible for protecting the right 
to vote, while the Criminal Division's Public Integrity Section 
and other Department prosecutors throughout the country seek to 
protect the value of each person's vote by criminally 
prosecuting those who corrupt the elections.
    I thank you for the opportunity to provide the Committee 
with information about the Criminal Division's role in 
combating election fraud. I welcome your questions.
    [The prepared statement of Mr. Sabin appears as a 
submission for the record.]
    Senator Cardin. First, let me thank you both for your 
appearance and your testimony. It was certainly very strong 
testimony about the integrity of the election system and 
actions you plan to take, including criminal actions, and the 
steps you have taken before the elections to make clear your 
ability to help.
    I want to talk specifically about some activities that took 
place in the last two election cycles which have been 
documented and then ask you questions as to whether you believe 
you have adequate laws to take action against those types of 
activities, what steps you have taken to preempt those 
activities in this election cycle, and whether you are prepared 
to take investigative actions if it occurs in 2008.
    The type of activities I am referring to, is misleading and 
fraudulent information that was given out in an effort to 
diminish minority participation or voting in the 2004 and 2006 
election cycles. There was literature that was targeted to 
minority communities that gave the wrong date of election. 
There was information distributed in both Pennsylvania and Ohio 
that said, because of large turnout, Republicans should vote on 
Tuesday and Democrats should vote on Wednesday.
    There was information handed out in California to immigrant 
communities warning them--these are newly registered voters, 
targeted to the Latino population--warning them that voting in 
the Federal election is a crime that can result in 
incarceration and possible deportation for voting without the 
right to do so.
    There was information handed out giving the wrong voter 
date in my own State of Maryland.
    In Wisconsin, there was information targeted that states 
that you can only vote once a year. If you have been found 
guilty of anything, even a traffic ticket, you cannot vote in a 
Presidential election; if you do, violating these laws, you can 
get 10 years in prison and your children will be taken away 
from you--again, targeted to minority communities.
    My question to you: Do you have adequate tools to combat 
that type of action aimed at diminishing the minority vote in 
our country? Do you believe that you have adequate tools? And 
have you taken steps to make it clear that such activity will 
be pursued to try to discourage candidates from using those 
types of tactics? And are you prepared to initiate 
investigations if, in fact, you see that type of activity in 
the 2008 elections?
    Mr. Sabin. With respect to the criminal enforcement of the 
laws, the Department has provided a views letter on the 
Deceptive Practices Act, some of which you referred to in your 
question, specifically back in October of 2007. I believe we 
share common ground with the premise of your question with 
respect to the goal of the bill and the goal of those kinds of 
activities, that we would seek to address certain election-
related deceptive conduct; and where Federal statutes do not 
presently exist, to address that, seek to specifically support 
additional legislation in order to bridge any gaps.
    Specifically, under the voter suppression types of 
activities, the Department of Justice has clearly articulated 
in the seventh edition of the guidance that has been provided 
to prosecutors throughout the country that it is a Department 
of Justice priority that we will aggressively prosecute these 
types of matters and that, where appropriate, cases will be 
brought. In terms of voter suppression, we have used Title 18, 
United States Code Section 241, to pursue that kind of 
activity, although in terms of the voter suppression and 
deceptive conduct, that is arguably not within the parameters--
or at least critics have argued that, and therefore, the 
additional legislation as proposed and referenced in your 
question would seek to make that explicit by Congress rather 
than the Department's position and as articulated in our views 
letter.
    Hopefully that is responsive to your question.
    Senator Cardin. I think I can interpret it. But September 
is going to be a long month around here. We could get a lot of 
work done if we could really get your help on this legislation. 
We are prepared to make reasonable compromises if you need 
strong laws. We think it is covered under existing laws, but as 
you know, Senator Obama has introduced a bill to strengthen 
that, and it passed our Committee. It has not been taken up on 
the floor yet. If there are changes that you need, let us sit 
down and talk about it. But what we are trying to do--and I am 
not trying to make this partisan in the least, because it could 
well be we are dealing with minority voters in Alaska where 
they tell the Democrats to vote on Tuesday and Republicans to 
vote on Wednesday. I think it is already illegal. If it is not 
illegal, let us make it illegal and let us make sure that you 
will investigate and prosecute any efforts to do that.
    Mr. Sabin. To be clear, we share that common ground in 
terms of working together to address what needs to be addressed 
so that Congress provides the Justice Department with the 
ability to enforce violations of Federal criminal law.
    Obviously, when you pursue matters that relate to campaign 
rhetoric and other kinds of campaign tactics, that goes into 
First Amendment territory.
    Senator Cardin. We are in agreement on that.
    Mr. Sabin. Your point--and I think the Justice Department 
shares that view--is that we could work together to address 
whatever specifics need to be addressed.
    Senator Cardin. I think the examples I gave are all 
examples that are not protected under the First Amendment when 
you give the wrong date of election targeted to minority 
communities or try to intimidate people with telling them they 
do not have the right to vote when they do.
    Let me cover one other circumstance, and that is, we have 
seen in States where in minority communities there has been an 
inadequate amount of ballots available, inadequately trained 
judges, which caused much longer lines in minority communities 
than in other voting places in the same State.
    Do you need additional tools in order to deal with this? 
What can be done at the national level to make sure that all of 
our voters have the ability, equal ability, to cast a ballot? I 
could show you that in minority communities in my own State in 
the last election, they had to wait three, four, five times as 
long to vote, and there was no reason for it other than they 
did not have the voting machines or ballots available, and it 
seemed to be only in the minority communities.
    Ms. Becker. Senator, that is a very important issue. That 
is obviously something that we are concerned about in the Civil 
Rights Division as well. I know that there is a witness on the 
second panel that will be describing one of these examples here 
for you today, and I want you to know that we share your 
concern, that we have an open investigation. And right now we 
are not seeking any additional tools. We believe we can take 
appropriate law enforcement action where necessary to combat 
this type of behavior. But I do very much appreciate that offer 
and reserve the opportunity to maybe take you up on it in the 
future, if necessary.
    Senator Cardin. Thank you.
    Senator Cornyn.
    Senator Cornyn. Thank you very much, Mr. Chairman. I would 
be glad to defer to Dr. Coburn, who actually was here before I 
was, so please go ahead.
    Senator Coburn. No. Go ahead.
    Senator Cornyn. Well, rather than get in a stand-off about 
who is going to go first, I will go ahead and go first.
    Senator Coburn. Oklahomans usually defer to Texans--except 
on the football field.
    Senator Cornyn. On behalf of Senator Specter, I would like 
to ask for unanimous consent to make a part of the record a 
number of letters in support of Grace Chung Becker for head of 
the Civil Rights Division.
    Senator Cardin. Without objection, they will be made part 
of the record.
    Senator Cornyn. Thank you very much.
    Mr. Chairman, I appreciate your convening this hearing 
today and Senator Leahy for scheduling it because we all 
recognize that the right to vote is one of our most cherished 
civil rights. That right to vote, like all rights, is 
safeguarded by our men and women in uniform, and I was glad to 
hear Ms. Becker allude to efforts they are making in that area, 
which I want to talk about a little bit more. But, obviously, 
far too often these very same men and women who wear the 
uniform of the United States of America and who are fighting 
and sacrificing in some cases everything to protect our civil 
rights are themselves unable to exercise their right to vote. 
Because they do much to protect our rights, I think that 
justice demands that we do everything in our power to protect 
theirs.
    Through legislation such as the Uniformed and Overseas 
Citizens Absentee Voting Act and the Help America Vote Act, 
Congress has attempted to establish a framework through which 
the Department of Defense and the Department of Justice can 
safeguard the voting rights of our men and women in uniform. 
But let me be clear about this. That framework has failed. It 
is broken and it does not work.
    Specifically, the Department of Defense has failed to 
adequately educate enlisted men and women about how to vote, 
and it has failed to take adequate steps to ensure, when 
enlisted men and women do vote, that their votes are actually 
counted. The Department of Defense has a legal duty to educate 
and assist our service members in voting, and the evidence 
shows that the Department of Defense has failed in that duty.
    The Department of Defense's current system of relying on 
voting assistance officers to educate enlisted men and women 
about how to vote has failed as well. The Department of Defense 
Inspector General report, 2006 Evaluation of the Federal Voting 
Assistance Program in the DOD, noted that only 59 percent of 
surveyed military service members knew where to obtain voting 
information on base, and only 40 percent had received voting 
information or assistance by a voting assistance officer.
    DOD regulations require DOD voting assistance officers to 
hand-deliver Federal postcard applications to all eligible 
military service members by January 15 each year. But the IG 
report indicates that only 33 percent of service members are 
familiar--are even familiar much less having been handed the 
card--with the Federal postcard application. According to the 
United States Election Assistance Commission, only 16.5 
percent--16.5 percent--of 6 million eligible military and 
overseas voters requested an absentee ballot for the November 
2006 election. Of the overseas troops who did ask for mail-in 
ballots, only 47.6 percent, less than half, had their completed 
ballot actually arrive at their local election office, and many 
of those arrived after the statutory deadline because of delays 
in transmission, resulting in them being rejected and, thus, 
not being counted at all.
    I believe that in 2006 only 5.5 percent of the eligible 
military and civilian voters overseas had their vote count--5.5 
percent. I hope the panel would agree with me that that is an 
outrage that cries out for a remedy, and I hope you will help 
us work to remedy that abominable statistic.
    I have introduced a bill called the Military Voting 
Protection Act to expedite delivery and electronically track 
service members' ballots. This would improve the infrastructure 
for protecting our troops' right to vote. The legislative 
framework is only as effective, as you know, as the executive 
branch's will to enforce it.
    That is why last month I sent a letter to the Attorney 
General, co-signed by 12 of my Senate colleagues and 22 of my 
House colleagues, requesting that the Department of Justice 
investigate whether the DOD's Voting Assistance Program was 
fulfilling its legal responsibilities to protect service 
members' right to vote or whether service members deployed 
around the world were being effectively disenfranchised.
    I consider this to be a very important civil rights issue, 
and I am glad to have the acting head of the Division, Ms. 
Becker, here testifying today. And I am also looking forward to 
hearing the testimony on the second panel of Bryan O'Leary, a 
former voting assistance officer in the United States Marine 
Corps and hearing about his firsthand experiences with how the 
law is actually being implemented--or how it is not being 
implemented, apparently, to me.
    I hope that today's hearing will demonstrate the need and 
certainly the universal conviction on the part of all Members 
of Congress to see that the laws it passes are actually 
enforced by the executive branch and properly administered by 
the appropriate agencies.
    Mr. Chairman, I guess I have a minute and 24 seconds. Let 
me just ask Ms. Becker a question.
    Ms. Becker, is this something that alarms you as much as it 
does me, these statistics?
    Ms. Becker. It does, Senator Cornyn. I share your concern 
as somebody who has worked at the Pentagon as a civilian for 
the United States Army in Manpower and Reserve Affairs and in 
the Department of Defense in the General Counsel's Office. I 
have seen firsthand the sacrifices that men and women and their 
families make in order to serve their country, to preserve our 
rights here at home. And certainly if there is anything that we 
can do in the Civil Rights Division to vigorously enforce 
UOCAVA in order to preserve their voting rights while they are 
abroad, we certainly are committed to doing so, Senator.
    I did read the letter that you sent to the Attorney 
General, and I thought it raised some very, very important 
issues that are of concern to us. Many of the issues that you 
raise involving educating the military are assigned to the 
Department of Defense, as you know, for their--it is their 
responsibility. What we do in the Justice Department is to sue 
States to ensure they are giving adequate time to send absentee 
ballots and to have these absentee ballots returned. So that is 
the limited role that the Justice Department plays in this 
regard.
    Senator Cornyn. Let me ask you this, Ms. Becker. Are you 
saying that the Justice Department has no responsibility to see 
that an agency of the United States Government--the Department 
of Defense--has a program in place to make sure that ballots 
are actually returned on a timely basis so that the votes 
actually count? Is that part of the Department of Justice's 
responsibility or not?
    Ms. Becker. Well, we do not have the authority to 
investigate and sue the Department of Defense, as you may 
imagine. But what I did do--because I think this is a very 
important issue, Senator Cornyn--is that I referred it to the 
Department of Defense Inspector General's Office, because I 
think this is an important issue that needs to be brought to 
their attention. They have looked at this issue in the past, as 
you have noted in your statement, and I think that the issues 
that you raise in your letter are things that are going to be 
of great interest to them.
    Senator Cornyn. Well, Ms. Becker, my time is about up, but 
let me just make clear my commitment, and I guarantee that 
Congress on a bipartisan basis will pursue this. So I do not 
want any ping-pong played between the Department of Defense and 
the Department of Justice. And I also want to make sure that if 
you lack any authorities which Congress is able to confer upon 
you, that you tell us, and that you tell us what tools that the 
Department of Justice--who has the primary responsibility to 
make sure that civil rights laws are enforced--what you need in 
order to make sure that our service members' votes count. Will 
you do that for me?
    Ms. Becker. I will, and I appreciate that. Thank you very 
much, Senator.
    Senator Cornyn. Thank you.
    Senator Cardin. Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman, and thank you 
for chairing this hearing. I know this is a subject that is 
near and dear to you after your experience in the last 
election, and I appreciate your constant attention to it during 
the time that we have served together.
    Mr. Sabin, we have endured a very unfortunate experience 
within the Department of Justice in the last several years. The 
two examples of many that stand out are the former United 
States Attorney David Iglesias, under intense political 
pressure to bring pre-election voter fraud cases, took a look 
at those cases with the career folks in his office and the 
investigators that were assigned to it, and they decided those 
cases could not be made. And the response from the Department 
of Justice at the highest levels at that point was not to back 
this U.S. Attorney who had made that call but, rather, to yield 
to the political pressure and fire him. And he was, in fact, 
fired.
    Not too much after that, another fired United States 
Attorney was replaced by a gentleman named Bradley Schlozman, 
whose name you are probably familiar with, who undertook to 
bring pre-election cases that his predecessor had found to be 
without merit in the days literally before an election.
    This is an area of law that for many years was guided by 
manuals that gave the guidelines for these prosecutions, and my 
colleague from California, Dianne Feinstein, has done wonderful 
work in comparing the 1995 manual, which was in operation, with 
the 2000 manual that came out thereafter, and there were some 
very, very significant differences. And what it looks to an 
average person like me as is that the conduct of the Department 
at the time was in plain violation of its own manual, in 
addition to being wrong. When the conflict between the manual 
and the handling of those cases became apparent, to solve the 
problem they changed the manual. And the differences--do you 
want to hold them up?--are summarized in a variety of different 
ways.
    In the 1995 edition, it says, ``The Justice Department must 
refrain from any conduct which has the possibility of affecting 
the election itself.'' Obviously, Mr. Schlozman's purpose was 
exactly to affect the election itself. That was changed in the 
2007 edition to the milder ``Overt criminal investigation 
measures should not ordinarily be taken in matters involving 
alleged fraud.'' I do not think that really addresses the 
purpose at all.
    The second difference in the 1995 edition, it says, 
``Federal prosecutors and investigators should be extremely 
careful to not conduct overt investigations during the pre-
election period or while the election is underway.'' That 
provision was removed.
    Another provision said, ``Most, if not all, investigation 
of an alleged election crime must await the end of the election 
to which the allegation relates.'' Again, that provision was 
removed.
    "It should also be kept in mind,'' said another provision 
of the manual, ``that any investigation undertaken during the 
final stages of a political contest may cause the investigation 
itself to become a campaign issue.'' That was whittled down to 
``Starting a public criminal investigation before the election 
runs the risk of interjecting the investigation itself as an 
issue.''
    And, finally, the position of the Justice Department had 
been that the Justice Department generally does not favor 
prosecution of isolated fraudulent voting transactions based in 
part on constitutional issues that arise when Federal 
jurisdiction is asserted.'' That, too, was removed.
    Do you know if there is any effort to restore any of those 
provisions to the manual or will those removals hold?
    Mr. Sabin. I appreciate the question. Let me try and give 
you a candid answer with respect to the issues you raise.
    First, the Department of Justice and Attorney General 
Mukasey on March 5th of 2008 issued a memorandum setting forth 
clearly and unequivocally that politics must play no role in 
the decisions of Federal investigators or prosecutors regarding 
any investigation or criminal charges. The memo goes on to 
further discuss and set that context whereby we are sensitive 
to and mindful of the power of criminal prosecutions and the 
impact it has upon or could have on November's elections.
    I am not going to comment upon the two specific U.S. 
Attorney examples that you referred to, but let me talk to you 
regarding the changes or the demonstrative aid that you have 
regarding the sixth edition and the seventh edition of the 
guidance that was prepared by the Public Integrity Section on 
behalf of the Criminal Division and distributed throughout the 
Justice Department. It was prepared by career prosecutors: the 
head of the Election Crimes Branch, a 38-year veteran as 
director of that component, and another prosecutor with over 
three decades of experience. It was not meant or intended in 
any way to have a political or partisan purpose with respect to 
those modifications.
    The Justice Department has articulated and responded to, as 
you referred to, Senator Feinstein's concerns regarding the 
language in the sixth edition versus the seventh edition of 
that guidance.
    In a letter dated February 1st of this year, we walked 
through in exacting detail each of the concerns that are raised 
here today and were articulated previously by Senator Feinstein 
explaining the nature of the changes and the reason why the 
Justice Department made the changes.
    Let it be clear that there has been no change in Department 
of Justice policy regarding the non-interference relating to 
election matters on election crime investigations or 
prosecutions, either in the 1995 edition or the 2007 edition. 
The Department of Justice policy has remained the same. The 
changes were made because 12 years had elapsed. There had been 
new case law. There had been additional lessons learned and 
experience derived from prosecutors, both in Washington and 
around the country. And as a result of those new laws and those 
additional experiences, this career-prepared document and 
guidance was distributed throughout the country.
    So, at present, in direct answer to your question, there is 
no--
    Senator Whitehouse. You feel there is no need to restore 
the language from the 1995 manual that--
    Mr. Sabin. Well, let us go through some of the different 
points--no, there is not.
    Senator Whitehouse [continuing].--Requires, for instance, 
Federal prosecutors and investigations to be extremely careful 
to not conduct overt investigations during the pre-election 
period.
    Mr. Sabin. And that remains our policy. Let's walk through 
specifically what that means in terms of the non-interference 
policy, so that regarding the votes that are cast or counted 
for a particular election fraud or election crime matter, there 
will be a heed and an adherence to those core principles, which 
I think we share common ground on, namely, that the concerns 
that an overt criminal enforcement action could have on 
chilling legitimate voting; that overt criminal activity could 
interfere with the administration of the elections by State and 
local officials; and that you could transform a criminal 
investigation into a campaign issue, for example, by appearing 
to legitimize unsubstantiated allegations.
    So those core concerns I believe are present in the 1995 
edition and are present in the 2007 edition.
    Senator Whitehouse. My time has expired, and I am not 
trespassing on my colleague's courtesy. So if you could follow 
up with a question for the record as to where those are in the 
2007 manual, and I will end my questioning at this point 
because my time has expired.
    Mr. Sabin. Again, we specifically addressed that in the 
February letter, but we would be happy to do it further in 
questions for the record that you or your staff provides to us.
    Senator Whitehouse. I would appreciate it.
    Mr. Sabin. Yes, sir.
    Senator Cardin. Senator Coburn.
    Senator Coburn. Well, let me, first of all, thank both of 
you for your service and your attendance here today, and I 
would apologize on behalf of myself for the tardiness with 
which you received your hearing and the tardiness with which we 
have failed to act on your nomination. So you have my 
apologies.
    I want to follow up a little bit on the line that Senator 
Cornyn raised. If, in fact, the Department of Defense is 
denying a civil right to a soldier outside of this country by 
not delivering in a timely way either the cards for 
notification so they can seek a ballot or the delivery of a 
ballot when it is cast in a timely manner, why is it that you 
lack authority to file a case against the Department of 
Defense? You would not lack that authority against any other 
branch of the Federal Government. Why would you lack authority 
in filing that against the Department of Defense?
    Ms. Becker. Thank you, Senator Coburn, and I appreciate 
your comments in the introduction.
    This is an issue that I believe would be primarily handled 
by the DOD Inspector General's Office. If it appears that there 
is a public integrity issue that is going on there, that may be 
something that may be referred to other components of the 
Department of Justice. But at the first instance, an allegation 
of this nature should be handled by the DOD Inspector General's 
Office. We have referred the matter to them in the first 
instance to take appropriate action. If there is additional 
action to be taken where they think that somebody has been--an 
employee of the Department of Defense has done some wrongdoing 
and they make additional referrals to the Justice Department, 
that would be something we would have to take on a case-by-case 
basis, Senator Coburn.
    I can tell you that situation has not arisen, so it would 
be one that I would want to give some further thought to if 
something like that were to arise.
    Senator Coburn. Well, the problem I have with that is just 
by sheer incompetence, one in 20 people who chose to vote did 
not have their votes counted. And if that is not a denial of 
their civil rights, I do not know what is. You have 19 out of 
20 military personnel who actually cast a ballot, and the 
ballot did not count because of the incompetence or malfeasance 
of the Defense Department.
    Now, to me, that is a direct--no matter what your 
motivation is, the fact is that if you are denying a civil 
right to a soldier who is defending our rights, why is it that 
we do not have the right to hold the Defense Department 
accountable through the Justice Department for their own civil 
rights?
    Ms. Becker. I think the Department of Defense can be held 
accountable. There is an Inspector General at the Department of 
Defense that can hold their employees accountable. Again, if 
there is additional action to be taken, that will have to be 
handled on a case-by-case basis to determine if there is 
jurisdiction for whether it is the Civil Rights Division or 
another component of the Justice Department to take any 
appropriate action if there is malfeasance by DOD employees or 
something of that nature.
    But, again, in the first instance, Senator, I share your 
concern on this very important issue. I think it is very 
important for all of us to be doing everything that we can to 
ensure that service members have the right to vote in this very 
important election. And if they are not getting the information 
that they need, that is something that is of concern to all of 
us.
    Senator Coburn. Well, let me rephrase the question again. 
Let us say that only minority voters in the military voters, 
they had one in 20 ballots cast, but if you were a non-minority 
military outside of this country, you had 19 out of 20 cast. 
Would that then qualify as a civil rights violation of the 
minorities in the military?
    Ms. Becker. Again, this would be something that would be of 
concern to us in the Civil Rights Division. We would have to 
look at the totality of the facts and the circumstances to make 
an assessment of that. It would be difficult for me in a 
hypothetical setting to opine one way or the other.
    Senator Coburn. Okay. Well, I am not going to get where I 
wanted to go. To me, I think it is an absolute embarrassment to 
us as a Nation to have 6 million military and civilian--
combined military and civilian people throughout this country, 
spread around the world, spread around our country, who desire 
to vote, who actively, in spite of the lack of effort on the 
part of the Defense Department, got a card and got a ballot and 
their ballot did not count. I think we should be embarrassed. I 
think we as Congress should be embarrassed that we have not 
fixed that, that we have not held the Defense Department 
accountable. I think the Department of Defense should be 
embarrassed. But more importantly is--voting rights is for 
everyone, no matter where you serve, no matter what your color, 
no matter what your viewpoint, is the one thing that makes us 
solid, keeps us solid is the right to have your vote counted. 
And I am extremely disappointed that we have not effectively 
solved this problem. And I do not have great hope that it is 
going to get solved this time. I have great trepidation that, 
in fact, 5 percent, again, are not-5 percent out of the ones 
that do finally cast a ballot will get their ballots delivered 
on time and actually be able to participate in our electoral 
process.
    Ms. Becker. Well, Senator, I can give you my commitment 
that if there is an appropriate role for the Civil Rights 
Division to play in this regard, you have my commitment that we 
will do everything we can to ensure that the men and women in 
uniform get their right to vote protected.
    Senator Coburn. Thank you.
    I yield back.
    Senator Cardin. I want to concur with Senator Coburn's 
comments and Senator Cornyn's comments. We want to make sure 
that everyone's votes are counted, and it is very difficult 
when you are in the military service, and we should make it a 
lot easier, not more difficult, for them to vote.
    I had a chance to meet with Americans abroad during the 
last couple weeks, and a similar issue is involved there. We 
should be making it easier for people to be able to cast their 
ballots, and I think it should be of interest to the Department 
of Justice to work with the other agencies to make sure that we 
have the easiest system possible, because in many cases they 
have to comply with some State laws, and it becomes a 
complicated process. And 5 percent is certainly well, well 
below the interest levels of our military in participating in 
our political system. So there is a problem that has to be 
dealt with.
    I want to ask you a couple more questions, and then if my 
colleagues have additional questions, they will be recognized.
    I understand that the Department of Justice Criminal 
Division and the FBI recently had a conference. I also 
understand that you are contemplating the use of district 
election officials, which I would like to have a little more 
clarification as to who that person is, how they are being 
deployed.
    It seems to me this could be extremely constructive in 
helping the election process, but I want to make sure that we 
have adequate protections in here so it does not become a 
chilling influence on voter participation because someone 
believes they are being watched.
    Can either one of you help me as to what is being 
contemplated in using district election officials for the 
Federal Government around the country?
    Ms. Becker. Let me begin by saying first what a district 
election official is. In each of the 93 United States 
Attorneys' Offices, there is a point of contact on election 
day. This person is known as the district election official. 
This person is trained both in the laws that--the criminal laws 
for voter fraud as well as the Civil Rights Division voter 
access laws. They are the persons that can make the referral to 
the Civil Rights Division or to consult with the Criminal 
Division as necessary.
    They also conduct outreach with State and local election 
officials prior to election day so that they can make referrals 
as appropriate to State and local election officials, should 
questions arise on election day, and take appropriate action.
    The question, I think, that you are referring to is the 
practice in both Democratic and Republican administrations of 
the very limited use of prosecutors from U.S. Attorneys' 
Offices out in the field as monitors on election day. These may 
or may not be the district election officers of the day. They 
have been used in very limited circumstances, very carefully, 
and without any complaint that there has ever been a problem 
with a prosecutor who is serving as a monitor on election day. 
That person is not there in their role as monitor, but as a 
volunteer.
    They usually are selected because they are Civil Rights 
Division alumni, so they may have experience being a monitor in 
the past and they are willing to help us out on election day; 
or they may be an individual that has had specific language 
capabilities so that if we are monitoring elections and to make 
sure that they are meeting their obligation under language 
minority provisions, we have somebody who is familiar with the 
language who can be able to assess that and observe that.
    They are trained to look for Federal civil rights 
violations. They are trained not to interfere in the election. 
If they see a problem, they are not to fix it, they are not to 
interfere. They are to report it to a supervisor. The 
supervisor is a Civil Rights Division attorney and can make the 
appropriate referral, whether it is to the district election 
officer or to State and local or to keep it within the Civil 
Rights Division.
    These individuals are not identifiable in any way as 
prosecutors. They are casually dressed. They do not wear guns. 
They do not have badges. They are not outwardly identifiable as 
law enforcement officers. And so they have been used very 
carefully and without any complaints that we are aware of that 
anyone has been intimidated by our use, limited use, again, in 
Democratic and Republican administrations in this regard.
    But this is a very important issue that we take very 
seriously at the Civil Rights Division. We certainly do not 
intend and do not want to intimidate voters. So we are very, 
very careful.
    Senator Cardin. Thank you for that answer.
    I want to ask you about technology and how we have to stay 
ahead of it, and let me use as the example robo-calls. I am 
convinced that some campaign is going to put up robo-calls 
pretending to be the other candidate just to annoy the voters 
in an effort to discourage them from voting. These robo-calls 
have become a nuisance to a lot of voters. They are relatively 
inexpensive. The message is very difficult to trace as to who 
is using the message. They can be targeted to minority 
communities kind of easily.
    I just really want to alert you and just urge you to take a 
very careful look as to how campaign tactics are using new 
technologies that could be used in a very sophisticated way to 
target minority voters to affect the impact a community has in 
the elections. And robo-calls is just one example. We know 
there was misleading information put out by robo-calls in the 
last election cycle. We know that for sure. And whether you are 
looking at how the challenges of new technologies can be used 
to thwart the Civil Rights Acts.
    Ms. Becker. Senator, new technology, of course, is always a 
challenge. This is something that we are concerned about. I 
urge members of this Committee and members of the public, if 
they become aware of instances of this, to please bring it to 
our attention. We will have the hotline available, as well as 
fax and Internet-based mechanisms. We want to hear about these 
issues. If we hear about them before election day, there may be 
ways for us to work with the States--
    Senator Cardin. And that leads me to a last question. Have 
you sent notices out to the parties of interest so that they 
know how to contact you, how to work with you, how to make sure 
that we have avenues available to take corrective action or to 
document problems for election day?
    Ms. Becker. We have. We have sent out our contact 
information to dozens of civil rights organizations that we 
have met with, to State and local election officials. I have 
met with the National Governors Association, the National 
Association of State Legislators, the National Secretaries of 
State, of course, and other State and local officials, and we 
have given them our contact information. In addition, we will 
have the hotlines available. We will have district election 
officers in the districts, who will also be sending out their 
contact information. So we will have many opportunities for 
people to contact us if these problems arise.
    Senator Cardin. Thank you.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. I do not have any 
other questions of these witnesses.
    Senator Cardin. Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman. Just a few 
questions, if I may, for Ms. Becker about Section 7 of the 
National Voter Registration Act.
    As I understand it, there was a very successful action 
undertaken against Tennessee several years ago. Recently, you 
have announced action with respect to Arizona, and there is 
ongoing litigation regarding New York. I also understand the 
Department has mailed 18 letters to different States last year 
requesting information about their compliance with Section 7.
    Can you tell us what the response has been to those 18 
letters? Do you expect to take any further action as a result 
of that response? And are there any Section 7 enforcement 
actions that you envision before the election?
    Ms. Becker. Senator, thank you. We are committed to 
enforcing all of the provisions of the National Voter 
Registration Act as well as all the statutes that we are 
enforcing in the Civil Rights Division.
    Based upon the letters that we sent out, two of them were 
targeted to Nebraska and Iowa, and we were able to receive, I 
am happy to report, favorable results in that regard in the 
form of voluntary compliance. Both of those States enacted new 
State legislation based upon our inquiries, and that is 
certainly a good thing for the voters in those States. In 
addition, we have closed some of those investigations, and some 
of them remain open and active. While I cannot predict any 
particular timeline--every investigation is on its own 
timelines. As you know from being a U.S. Attorney, you can 
never predict these things. But we certainly are committed to 
continuing to enforce Section 7 as well as all of the statutes 
that we enforce in the Civil Rights Division.
    Senator Whitehouse. So of the 18, two have resulted in 
voluntary compliance that has allowed you to close the case out 
to your satisfaction. Of the remaining 16, could you enumerate 
how those have turned out at this point?
    Ms. Becker. I do not have the specific--we have two that 
are currently ongoing and active in the Section 7 area, but I 
do not know if we have closed all of the other remaining ones 
or if some of those may remain open. But I know of at least two 
Section 7 investigations that are currently open and active.
    Senator Whitehouse. So that would be--two and two is four, 
and that leaves 14 remaining.
    Ms. Becker. I do not have the specific numbers for each and 
every letter that we sent out, Senator Whitehouse.
    Senator Whitehouse. Would you mind answering that as a 
question for the record then?
    Ms. Becker. I would be happy to.
    Senator Whitehouse. Great. Thank you.
    Thanks, Mr. Chairman.
    Senator Cardin. Well, let me thank both our witnesses. This 
past week, I was on college campuses, and I know there is some 
anxiety as to concerns that may develop in regards to voters 
who are on college campuses and the ID systems, et cetera. We 
might be submitting a question to you for the record. But if 
you will just also be very sensitive to the concerns there so 
that--as Senator Cornyn said and Senator Coburn said, we want 
to make sure everyone who is eligible to vote has the 
opportunity to vote, whether they are serving our Nation in 
military service or whether they are students, that we make it 
as easy as possible that they can cast their votes on November 
the 4th.
    Thank you both for your testimony. I appreciate it.
    Senator Cardin. We will now turn to our second panel, if 
they will come forward, and I will first administer the oath, 
and then I will introduce them. If you will remain standing.
    If you will all please remain standing in order to take the 
oath. Do you affirm that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Ms. Anderson. I do.
    Ms. O'Leary. I do.
    Ms. Daniels. I do.
    Senator Cardin. Thank you. Please be seated.
    Our panel consists of Keshia Anderson, who will tell us 
what happened to her when she tried to vote in the February 
2008 Presidential primary in Virginia. Keshia is a special 
education teacher in Richmond, Virginia, and is a graduate from 
Virginia State University.
    Bryan O'Leary is the Director of Capitolink. He represents 
a wide range of C&M Capitolink and Crowell & Moring LLP clients 
with a focus on the defense sector. He served as the National 
Security Adviser to Senator Coburn. Well, he has a 
distinguished record. Prior to that he served as the military 
and foreign affairs adviser to Senator Burns, a senior member 
of the Defense Appropriations Committee and the Military 
Construction and Veterans Affairs Appropriations Committee.
    And Professor Gilda Daniels has more than a decade of 
voting rights experience and served as a Deputy Chief under 
both the Clinton and Bush administrations. She was the Deputy 
Chief in 2000 and has worked within the Voting Section to 
address a myriad of issues that arise during the election. She 
served in the Department of Justice Civil Rights Division's 
Voting Section as a staff attorney from 1995 to 1998 and Deputy 
Chief in that section for 6 years, from 2000 to 2006.
    Welcome. It is a pleasure to have you all before our 
Committee. We thank you for taking the time to be here, and we 
will start with Ms. Anderson. And your entire statements will 
be made part of our record, without objection.

      STATEMENT OF KESHIA ANDERSON, CHESTERFIELD, VIRGINIA

    Ms. Anderson. Senator Cardin and members of the Senate 
Judiciary Committee, it is a privilege to be here today to 
share my experience attempting to vote in Chesterfield County, 
Virginia, during the 2008 Presidential primary on February the 
12th.
    My name is Keshia Anderson, and I am not a public person. I 
am a mother and school teacher and never thought I would be in 
front of United States Senators.
    I was born and raised in Virginia and graduated from high 
school in Chesterfield County in 1992--one of just a few 
African-American students. I now teach special education 
students.
    Chesterfield County is just outside the city of Richmond. 
It has more people and more money than most Virginia counties. 
Where I live, there is not as much money, but there are now 
many African-Americans compared to most areas of the county.
    I came here to tell you what happened to me when I tried to 
vote because of what my grandmother, may she rest in peace, 
taught me by word and example. She cherished the right to vote. 
My grandmother took extra jobs cleaning houses to afford the 
Virginia poll tax to ensure that she could vote. She had to 
ride the bus 25 minutes to vote, and she sometimes brought 
elderly family members so they could vote, too.
    When I went to vote in this year's historic Presidential 
primary, like my mother used to do to me, I brought my 7-year-
old son. I hope the Department of Justice will take action to 
prevent what happened to me and many others in Chesterfield 
County from happening again. Here is what happened.
    My mother votes at the same elementary school as I do. She 
called me and told me at 6:15 a.m. there already was a long 
line, stretching from the cafeteria out into the hall.
    I first arrived to vote around 7:30 a.m. with my son before 
work. The parking was so bad, we decided to try again later.
    Around 5 p.m., we drove through the rain back to our 
precinct. The situation was no better. The parking lot was so 
full that people were parked along the grass and the road. 
Inside, the line was huge, even longer than before. It could 
have been 200 voters, extending from the cafeteria where we 
vote, all the way down to the classrooms. Most of the people 
waiting were African-Americans.
    After more than an hour, the line stopped moving. We 
weren't told why. We were just told to wait. I was growing 
frustrated, and my son was getting hungry. His experience was 
not what I had hoped, and my job meant that I still had papers 
to grade that evening.
    I noticed that some people in line left without voting, 
sometimes saying they just could not afford to wait or could 
not stand long enough. One lady near us explained that she 
would have to pay extra money to have her son stay late at day 
care so she could vote. But after waiting in line for more than 
an hour, and not knowing how much longer was needed, she had to 
leave to pick him up without voting.
    Another lady brought her mentally challenged daughter with 
her. They also had to leave without voting. A third woman said 
that there were no chairs to rest on, and her handicapped 
husband was waiting in the car until she got to the front, but 
they both left without voting.
    As my son and I waited, something happened that seemed 
really absurd. One poll worker announced that anyone voting 
Republican could go straight to the front of the line and vote. 
I watched as a few white voters came out of the long line of 
mostly African-American voters and proceeded directly to the 
front tables. Shocked and frustrated, I asked why. The poll 
worker at the precinct explained that the precinct had run out 
of Democratic ballots.
    The poll worker found some computer paper, you know, the 
old kind with the holes and the perforated lines on the side, 
and she tore the paper into pieces for our use as ballots. She 
explained that she had been trying to get more Democratic 
ballots from the county all day. She told Democratic voters to 
handwrite our choice for President on the scraps of computer 
paper. ``Barack Obama'' was probably spelled many different 
ways that night.
    At about 6:30 p.m., I finally was called to the table. 
Assured by the precinct workers that my vote would count, I 
wrote my candidate's name on the torn piece of computer paper 
and went home. Some voters stayed around, hoping regular 
ballots might still arrive.
    Just before the polls closed at 7 p.m., a friend called 
saying that state troopers brought 45 more real ballots and 
that the handwritten ballots would not count. But I was too far 
away to get back in time, and I knew that 45 ballots weren't 
nearly enough for everyone in line.
    Later, I learned that I was one of the 299 voters in a few 
precincts given scrap paper ballots that did not count.
    Many voters in my precinct were driven away even before 
having to decide whether to stay and vote on scrap paper. 
Overcoming bad weather, job obligations, and family care 
challenges were just the beginning--then parking, voter lines, 
and delays, finding chairs to rest on, not finding Democratic 
ballots, or much information, and scrap paper voting.
    Many of us in that line were deprived of our right to vote, 
even though we had overcome all of the obstacles put in our way 
and had done absolutely everything asked of us, whether 
reasonable or not. I came to the precinct twice to try to vote, 
watched while white Republican voters moved to the front of a 
long line of mainly African-American voters, and followed every 
troubling instructions to write the name of my Presidential 
candidate on torn computer paper.
    I was upset and angry about these barriers, especially in a 
historic Presidential primary between a woman and an African-
American. The election drew record participation everywhere. I 
don't know if my grandmother could have imagined such a 
contest, but I knew she would not have imagined that there 
would be obstacles that prevented me from voting in it.
    I hope the lesson that my son and other voters learned is 
not that our precious right to vote can easily be taken away.
    Thank you.
    [The prepared statement of Ms. Anderson appears as a 
submission for the record.]
    Senator Cardin. Thank you very much for your testimony.
    Mr. O'Leary.

 STATEMENT OF BRYAN P. O'LEARY, CAPITOLINK DIRECTOR, CROWELL & 
                           MORING LLP

    Mr. O'Leary. Mr. Chairman, thank you for inviting me to 
testify today.
    In 1952, President Harry Truman wrote to Congress regarding 
military absentee voting. He said, ``At a time when these young 
people are defending our country, the least we at home can do 
is to make sure that they are able to enjoy the rights they are 
being asked to fight to preserve.''
    Over 50 years later, military voting remains a burdensome 
bureaucratic effort that obstructs our military men and women 
and their families from being able to exercise their 
constitutional right to vote. Because of the long delays and 
the reliance on the U.S. and the military mail systems, our 
military men and women need to act today to ensure that their 
vote is counted. For our military men and women deployed to 
Iraq and Afghanistan and around the world, today is their 
election day.
    The Election Assistance Commission survey results from 2006 
show that of the estimated 6 million military, military 
dependents, and overseas citizens eligible to vote, just under 
1 million--992,000--requested their ballot; and of that 
992,000, only 330,000 ballots were returned to their local 
election official.
    Again, I would like to reiterate Senator Cornyn's and 
Senator Coburn's comment that this is a 5.5-percent voter 
participation rate, which is shocking and shameful.
    In addition, 48,628 uniformed and overseas ballots were 
rejected in 2006. These facts show that the current military 
voting system has failed our military men and women and their 
families.
    I saw these problems firsthand as a voting assistance 
officer in the Marines, and I want to emphasize as well, I am 
not a lawyer. I was not a lawyer in the Marine Corps. I was an 
officer. I was an F-18 pilot. And I had a military mission: to 
do that job. That military mission was not nearly as stressful 
or as tasking as our young platoon commanders and company 
commanders who are deployed right now in Iraq and Afghanistan. 
But the Voting Assistance Officer Program is being managed by 
the very platoon commanders and company commanders who are 
trying to fight a war. So while they are trying to fight a war, 
they have to sift through Federal, State, and local regulations 
that are all different, deadlines that are all different. And I 
would like to present to the Senators and the staff after this 
the specific deadlines for the States, for your States, 
because, Chairman Cardin, I can assure you that there is a huge 
number of Maryland National Guardsmen military members who will 
not be able to vote.
    In conclusion, our military men and women serve around the 
world and risk their lives in defense of freedom, and yet their 
own ability to exercise their fundamental rights is being 
obstructed.
    This problem could have been solved years ago, yet our 
industrial age Government has failed to embrace the information 
age. Technology is available today to securely encrypt and 
electronically transmit ballots to military men and women 
around the world.
    For this coming election in November, it is critical that 
the Department of Justice press the Department of Defense and 
State election officials to ensure that our service men and 
women are given the time required to receive their ballots and 
return them on time. These military men and women are citizens 
first, and as citizens they deserve the full attention of the 
Department of Justice to protect their right to vote.
    Mr. Chairman, thank you for allowing me to testify today. I 
look forward to your questions.
    [The prepared statement of Mr. O'Leary appears as a 
submission for the record.]
    Senator Cardin. Thank you very much.
    Professor Daniels.

  STATEMENT OF GILDA R. DANIELS, ASSISTANT PROFESSOR OF LAW, 
   UNIVERSITY OF BALTIMORE SCHOOL OF LAW, BALTIMORE, MARYLAND

    Ms. Daniels. Senator Cardin, it is an honor to appear 
before you this afternoon to discuss ways that the Department 
of Justice can better prepare for the 2008 Presidential 
election.
    As you mentioned, I have more than a decade of voting 
rights experience and served as a Deputy Chief in both the 
Clinton and Bush administrations from 2000 to 2006. I have 
served in the Department of Justice, Civil Rights Division, 
Voting Section as a staff attorney and a manager. I also served 
as a staff attorney in the Lawyers' Committee for Civil Rights 
Under Law on its voting rights project. Currently, I am an 
Assistant Professor at the University of Baltimore School of 
Law, where I teach election law, among other subjects.
    The Department of Justice was surprised, along with the 
rest of the world, in 2002 when the country was crippled with 
hanging chads, dimpled ballots, and faulty voting machines. In 
2004, it was accused of playing politics with the right to 
vote. It has another chance to get it right in 2008. Senator 
Cardin, it is very important that we get it right this time, 
but all indications show that there is much work to be done.
    The Department's current focus on vote integrity minimizes 
its statutory requirement to monitor and enforce voter access. 
The 200 individuals who have been charged with various election 
crimes since 2002 pales in comparison to the half a million 
citizens whose provisional ballots were not counted in 2004 or 
the hundreds of thousands who were turned away, stood in long 
lines, were illegally purged, and/or subjected to other 
disenfranchising methods. DOJ's focus is wrong and needs 
adjusting.
    In light of the problems and issues with the last two 
Presidential elections, it is vitally important that the 
Department use the full breadth of its statutory authority to 
act proactively to ensure that our democratic process provides 
every eligible citizen the opportunity to access the ballot and 
ensure that that ballot will be counted. In order to protect 
the fundamental right to vote, the Government must act prior to 
election day. The Department should initiate contact with both 
State election officials and organizations to engage in a 
significant exchange of information in a nonpartisan and 
proactive way.
    In 2004, the Department of Justice, Civil Rights Division, 
Voting Section sent three letters--one in July, another in 
September, and another in October--to the chief election 
officials of each State regarding its UOCAVA responsibilities. 
The letters were sent, in DOJ's words, in ``an effort to avoid 
the necessity of litigation to ensure that States are aware of 
their obligation under UOCAVA.''
    Now, while military absentee voting is very important, the 
DOJ has devoted an inordinate amount of resources to that task 
and voter fraud inquiries with little left over to address 
voter access or perennial disenfranchising devices, such as 
ill-advised voter purges, voter registration problems, 
disproportionate distribution of voting machines, and voter 
deception--all of which deny eligible citizens the right to 
vote.
    In my written testimony, I have outlined some of the 
critical problem areas during the 2004 election cycle, the 
DOJ's statutory authority to act, and proposed steps that the 
Justice Department should take to ensure that these problems 
are not repeated this November. However, it is essential that 
the Department act now.
    Based on my experience, I would like to make the following 
recommendations:
    Immediately, the Department of Justice should immediately 
send letters to all States outlining Federal voting rights 
statute requirements regarding voter purges, voter 
registration, UOCAVA, et cetera, with deadlines for action. And 
as Ms. Becker mentioned earlier today, they have already done 
so in regards to their UOCAVA responsibilities and can do so 
regarding their NVRA and Voting Rights Act responsibilities.
    DOJ should also send letters and conduct calls to States 
with ``observed'' problems that could violate Federal voting 
rights statues, for example, lack of adherence to minority 
language requirements, information on particularly hostile 
areas or contests.
    It should also hold meetings with advocacy groups to 
``coordinate'' election coverage. I am aware there was a 
meeting yesterday, but it was more to--with all due respect, it 
was more of a photo opportunity than an actual exchange of 
ideas or information. I think there is certainly a need in the 
60 days prior to the Presidential election to have an exchange 
of ideas amongst organizations on the grass-roots and national 
level.
    The Department should also provide jurisdictions and 
advocacy groups with a list detailing election coverage at 
least 1 week prior to the election. Currently, that list goes 
out the Friday before the Tuesday election.
    It should also begin more extensive election coverage 
training of Department of Justice staff stressing ``voter 
access'' issues instead of ``voter fraud.'' As you are aware, 
Senator Cardin, there has been an exodus of experienced 
attorneys in the Voting Section, and it leaves the section with 
a dearth of experience. For many of these attorneys, it could 
well be their first Presidential election to actually handle 
election coverage. Short of deputizing former DOJ Civil Rights 
Division, Voting Section attorneys, I think that it is 
imperative that they begin training the DOJ staff in regards to 
voter access issues and de-emphasize voter fraud.
    On election day, the Department should limit United States 
Attorney and FBI election coverage and ``coordinate'' 
communication with advocacy groups. It should also renew 
efforts to coordinate with civil rights and other organizations 
to discuss election day preparedness and learn how those groups 
plan to approach various voting irregularities. For example, if 
the civil rights organizations are telling their persons on the 
ground to always ask for a provisional ballot, that could be 
problematic if those provisional ballots will not be counted. 
It should also share how DOJ will address these issues.
    I also have recommendations for what I think Congress 
should do in regards to future elections that would address 
your questions earlier regarding what else is needed in order 
for the Department to enforce voting rights activity.
    Thank you, sir. I see that my time is expiring.
    [The prepared statement of Ms. Daniels appears as a 
submission for the record.]
    Senator Cardin. Thank you very much for your testimony. I 
should acknowledge your connection to the University of 
Baltimore. I apologize for not doing that in the introduction. 
I like to give as much attention to that great school as 
possible.
    Ms. Anderson, let me first just thank you for being here. 
You put a face on the issue. We talk about people whose votes 
were not counted who tried to vote, and you give us a real 
person who went through this. And there unfortunately have been 
thousands of other people that are in similar situations that 
you were in, perhaps millions, that cannot stand in line for 2 
hours. If you have a child at home or you have got to pick up a 
child at school or you are taking time off from work in order 
to vote, it is difficult to justify a couple hours to vote. And 
why should you have to spend a couple hours to vote with the 
technology we have today?
    One of the problems we have is that it appears that these 
problems come up more frequently in minority communities. And 
you start to wonder whether some of this is not just 
intentional neglect--I am trying to put my words carefully--but 
in an effort to say, you know, if we hold down the vote in a 
minority community, so what? It may help our candidate.
    I saw in my own State in the last election--I will just 
give you the example. In a very large African-American-
dominated precinct, I received a phone call in the late 
afternoon. Now, I had traveled through a good part of Maryland 
during the 2006 elections, and I saw voting precincts that were 
crowded in the morning, which is not unusual, and in the middle 
of the day it got pretty easy to get through the voting 
machines. And I got a call saying that in these precincts in 
Prince Georges County, Maryland, the lines are 2 or 3 hours in 
the middle of the day. And I said, ``How can that be? '' They 
said, ``Well, they did not have enough voting machines, and 
then half the voting machines did not operate. And then they 
did not have this and they did not have that. So we have long 
lines. And now it is 4 o'clock in the afternoon, and they say 
it is going to be 3 hours before they can vote, and we are 
afraid a lot of people are going to give up and leave.''
    So I went there. I went to that voting place, because I did 
not believe it, and I saw firsthand that was exactly what was 
happening. And the circumstances you saw, with parents with 
their children and a lot of people who physically could not 
wait that long left. And that should not happen in the United 
States. It should not happen anywhere, but it should not happen 
in our country. It should not happen in any precinct. No one 
should have to go through that in order to cast a vote.
    But I really do believe that this is similar to what your 
mother or your grandmother was fighting to get rid of the poll 
taxes.
    Ms. Anderson. Yes, that is correct. She was one of the 
ones--she was very influential in helping to eliminate the poll 
tax and eliminate the literacy test that they had at that time.
    Senator Cardin. Right. It seems like we thought we got rid 
of this, and we now have another challenge. And we are going to 
figure out a way to do it. The challenge we have, of course, is 
that a lot of this is under the control of our State and county 
board of elections. And, yes, the Department of Justice has 
certain responsibility, and if it is not strong enough, then I 
think we need to change the laws to make it strong because it 
is a national responsibility to make sure that our voting 
rights are protected for every citizen. So I really do thank 
you very much for your testimony. Thank you for your efforts to 
vote, and we will demand that this does not happen again and do 
everything we can to make sure that happens.
    Ms. Anderson. Thank you. I appreciate that.
    Senator Cardin. Thank you.
    Mr. O'Leary, you are absolutely right. This is ridiculous 
that we cannot get a better system for our military. I look at 
the number of ballots that come back in Maryland--and I scratch 
my head--from the military. I mean, it just makes no sense at 
all. I know a lot of families--I know these people want to 
vote. So I cannot believe they do not have the interest and did 
not try to get ballots. And they do not come up, they do not 
show up in our elections.
    So it seems to me the Federal Government has a 
responsibility to make sure that our men and women who serve in 
the military, that their votes count. Technology is such that 
you could develop technology that could assure that those 
ballots are cast in a lot easier way and get to our election 
boards and we have paper trails to make sure there is no fraud. 
That is not difficult with today's technology, is it?
    Mr. O'Leary. It is not. You are absolutely right, Mr. 
Chairman. In fact, before the 2006 election, Congress acted to 
have the DOD implement an innovative program that would allot 
ballot transmission. Now, this is not electronic voting. This 
is just getting a ballot to the service man or woman, the 
overseas civilian, and the way it would start was with the 
defense database, and it was a secure system. It was set up in 
3 weeks, and it allowed that service man or woman to connect 
with the local election official. There are 7,800 local 
election officials, so one of the big problems is just finding 
that person. And once they were connected, the service member 
would get an e-mail saying, ``Your ballot is ready.'' He would 
log onto the system, download, print his ballot, fill it out, 
and send it back in the mail.
    This is a simple solution. Congress told the DOD to execute 
it. They did not execute it. They did not tell anybody about 
it. So, as a result, only about half a dozen or a dozen votes 
were cast.
    There are definitely solutions to this, and this should not 
really be a partisan issue. This is a good-government issue. 
There are 96,000 folks from Maryland who are overseas or in the 
military.
    Senator Cardin. You are absolutely right. Now, this is a 
Presidential election year, and there is a lot of interest, and 
my guess is the numbers are going to be much, much higher 
because soldiers, Americans, are going to want to have their 
votes counted.
    But let us go 2 years from now, and you have State 
elections, and you have congressional elections. I think they 
are very interesting, particularly if my name is on the ballot, 
but it does not quite have the same appeal that a Presidential 
election has. And most voters really concentrate on the 
election just a few weeks before.
    Now, if you are serving in Iraq or you are serving halfway 
around the world and you are trying to make sure you get your 
vote counted and you start working on this 3 or 4 weeks before 
the election, there is a good chance you may not get your vote 
counted in today's system.
    Mr. O'Leary. That is absolutely right. In fact, the 
military postal system right now is recommending that military 
service members who are deployed send their ballots on 
September 30th in order to ensure that they get here by 
November 4th. Now, there are a lot of States that do not even 
send the ballots out until October.
    Senator Cardin. Also, if you vote on September 30th, they 
are going to miss all the important campaign messages that a 
campaign sends out.
    Mr. O'Leary. That is right. You miss the October surprise, 
and maybe you made a decision before that happened.
    Senator Cardin. That is not right. Again, you are 
discriminating against the military by not giving them an 
opportunity to cast a contemporary ballot. It does not have to 
be election day, but they should certainly be able to cast a 
ballot a couple weeks before the election to make sure it is 
going to be counted.
    I think this is a Federal responsibility. I think we may 
have to look at changing the laws. But the response we got from 
DOJ was not that encouraging, so I think you are going to see 
on both sides of the aisle we are going to try to do something 
to deal with that.
    Which brings me to Professor Daniels, and I love a lot of 
your suggestions. I am going to make sure they get over to DOJ. 
We will transmit it and make sure they have your suggestions on 
notification and get a reply from them as to whether they will 
implement some of your suggestions. But it really brings up the 
point that I am asking Mr. O'Leary.
    Some will say if we set up an Internet system for our 
military, even though we will have protections, paper trails, 
et cetera, that you may get a fraudulent vote that is cast 
there because maybe someone will steal someone's ID and get 
into the system and cast a vote that should not be cast. And I 
guess my question for you, Professor Daniels, you have really 
studied the election law system, and we are now having a debate 
in Congress on voter ID that courts have ruled that that is 
certainly permissible, and I for one believe that anyone who 
tries to vote who is not eligible to vote, we should go after 
that person and prosecute that person.
    But at least it has been my experience that the number of 
people who fraudulently attempt to vote are so minuscule, that 
we have virtually been able to--we have not even documented any 
significant problems with people who are not eligible voting. 
But we have a lot of people like Ms. Anderson who are eligible 
to vote whose votes never get counted. And the same thing is 
true in the military. If we open up the system, I am certain we 
are going to get a lot of people who want to vote and their 
votes are going to count. And the number of fraudulent ballots 
is going to be inconsequential.
    So I guess my question to you is: As we look at what will 
be done on election day in 2008, is there a concern that we are 
now overreacting on the photo IDs and those types of laws where 
people have a hard time coming up with that type of 
identification and may be denied the right to vote, whereas we 
are missing the big picture and making it easier for people 
like Ms. Anderson to get their votes counted?
    Ms. Daniels. Studies have shown that voter ID really does 
not have an effect on vote fraud issues, that vote fraud 
generally occurs in absentee ballots. So it is not the person 
who shows up at the polling place and says, ``Hello, I am 
Senator Cardin,'' and they are not Senator Cardin. It is the 
person who may have assisted in helping someone fill out an 
absentee ballot.
    But even on that level, it is a very small number compared 
to the numbers of persons--for example, on the provisional 
ballot issue, there were more than half a million provisional 
ballots that were not counted in the 2004 election. Out of 1.9 
million provisional ballots that were cast, only 1.2 million 
were counted. And that is from an EAC study, the Election 
Assistance Commission study.
    So the numbers of persons who are turned away or 
provisional ballots not counted or may not have the appropriate 
voter ID but still remains an eligible voter, those are the 
numbers, I think, that the Department of Justice should 
concentrate on. Those are perennial disenfranchising methods 
that--it happens year after year after year. Students and voter 
ID, students not being able to use their college IDs in 
particular jurisdictions, long lines--those are issues that 
occur year after year after year that should be addressed.
    And I agree with you, military voting is a big issue. But I 
think an inordinate amount of resources are being used to 
address that issue and not enough to address the issues that we 
know will occur in 2008.
    Senator Cardin. And I do not disagree with your assessment 
that absentee ballots are much easier to deal with where you do 
not have to personally be present. But it is interesting in 
Oregon, which is all done by mail, where they do not have any 
same-day voting, the information that at least has been given 
to me is that the amount of fraud there is no greater than any 
other place in the country. In fact, they get a much higher 
percentage of participation because it is easier.
    Ms. Daniels. I do not think that vote fraud is the issue 
that we need to concentrate on right now. I think it affects 
such a small percentage of our citizenry that we need to really 
concentrate, certainly spend more resources on these other 
areas.
    Senator Cardin. Right. I agree with that. I remember when 
we did motor-voter, people said that the sky would fall in. It 
did not fall in. It just made it a little bit easier for people 
to get information about registering to vote, and the Federal 
Government took some responsibility here rather than just 
saying this is just a State issue.
    I really do think we need to take a look at stronger 
Federal guidelines to guarantee that every person who is 
eligible to vote in America can register easily, cast their 
vote easily and make sure that the integrity is in the system 
that that vote will be counted. I think that is a Federal 
responsibility, and that is why I think many of us are hoping 
the Department of Justice will take advantage of the 2008 
elections, get information out locally to let the stakeholders 
know that there is a Federal partner in this. The Federal 
Government wants to do everything it can to prevent problems 
from happening; but if there are difficulties, we want to know 
about it so that we can take the appropriate either criminal 
actions or corrective actions so that we do not get a repeat of 
what happened in Virginia and so many other States in prior 
elections. We have got to stop that from happening again and to 
make sure that our military can vote. Five percent is 
unacceptable. I agree with you there.
    Well, let me thank the three of you for really adding, I 
think, a great deal to this hearing. We are going to follow up 
with the Department of Justice, and we will also follow up with 
the Department of Defense and with our local officials and try 
to assure that we have the most aggressive actions taken prior 
to the November 4th election.
    The record will remain open for 1 week for additional 
questions or submissions for the record. And, with that, if 
there is no further business, the Committee will stand 
adjourned. Thank you all very much.
    [Whereupon, at 3:55 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follows.]



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