[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
LESSONS LEARNED FROM THE 2008 ELECTION
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MARCH 19, 2009
__________
Serial No. 111-16
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah
BRAD SHERMAN, California TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia STEVE KING, Iowa
TAMMY BALDWIN, Wisconsin JIM JORDAN, Ohio
JOHN CONYERS, Jr., Michigan LOUIE GOHMERT, Texas
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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MARCH 19, 2009
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Ranking Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 3
WITNESSES
Ms. Barbara B. Arnwine, Executive Director, Lawyers Committee for
Civil Rights Under Law
Oral Testimony................................................. 5
Prepared Statement............................................. 7
Mr. Matthew Segal, Executive Director, Student Association for
Voter Empowerment (SAVE)
Oral Testimony................................................. 11
Prepared Statement............................................. 15
Ms. Heather S. Heidelbaugh, Shareholder, Babst, Calland, Clements
& Zomnir
Oral Testimony................................................. 22
Prepared Statement............................................. 24
Mr. James Thomas Tucker, Consulting Attorney, Native American
Rights Fund
Oral Testimony................................................. 41
Prepared Statement............................................. 43
Mr. Hilary O. Shelton, Director, Washington Bureau of the NAACP
Oral Testimony................................................. 82
Prepared Statement............................................. 84
Mr. Glenn D. Magpantay, Staff Attorney, Asian Amerian Legal
Defense Fund (AALDEF)
Oral Testimony................................................. 86
Prepared Statement............................................. 89
Mr. James Terry, Chief Public Advocate, Consumers Rights League
Oral Testimony................................................. 99
Prepared Statement............................................. 101
Ms. Tova Andrea Wang, Vice President for Research, Common Cause
Oral Testimony................................................. 112
Prepared Statement............................................. 114
APPENDIX
Material Submitted for the Hearing Record........................ 135
OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
``Election Protection 2008: Helping Voters Today, Modernizing the
System for Tomorrow,'' a report on the Non-Partisan Election
Protection program, submitted by Barbara R. Arnwine. This report is
available at the Committee on the Judiciary, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, and can be
accessed at:
http://www.866ourvote.org/tools/documents/files/0077.pdf
Exhibits regarding evidence of criminal and other improper actions by
the Association of Community Organizations for Reform Now (ACORN),
submitted by Heather S. Heidelbaugh. This information is available
at the Committee on the Judiciary, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, and can be
accessed at:
http://republicans.judiciary.house.gov/Hearings/Read.aspx?id=21
LESSONS LEARNED FROM THE
2008 ELECTION
----------
THURSDAY, MARCH 19, 2009
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:10 a.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Conyers, Watt, Jackson
Lee, Sensenbrenner, King and Gohmert.
Staff present: LaShawn Warren, Majority Counsel; Kanya
Bennett, Majority Counsel; David Lachmann, Subcommittee Chief
of Staff; and Paul Taylor, Minority Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will now come
to order.
I will recognize myself for a 5-minute opening statement,
which will not take 5 minutes.
Today's hearing looks at the 2008 elections to see what
lessons we can learn to improve election administration and the
protection of voting rights in the future
Although we were thankfully spared another national
election in which the result was questioned by large numbers of
Americans, there were still problems encountered by voters
across the country. In too many instances, legally qualified
voters were robbed of their right to vote either by poor
administration, by excessively cumbersome procedures, or by
efforts designed to disenfranchise them. In the world's leading
democracy, that is simply intolerable. There is no more
important right than the right to exercise the franchise
freely, fairly, and without fear or intimidation.
Our Nation's history is one of expanding inclusion. We have
expanded the franchise to include all persons, regardless of
race, color, or previous condition of servitude or gender or
age. We have enacted the Voting Rights Act, the Help America
Vote Act, and the Motor Voter law. We recently renewed the
Voting Rights Act with almost no dissent, thanks to the
leadership of the distinguished gentleman from Wisconsin
sitting uncharacteristically to my left and the distinguished
Chairman of the full Committee.
But rights on paper are not the same as rights in fact. For
that, we need vigorous enforcement. Efforts by both official
and private parties to suppress the vote, especially of certain
groups targeted by race or belief, are unacceptable. Even when
the culprit is poor management, the result is the same and
still unacceptable.
I am eager to hear from our outstanding panels of witnesses
today so we can take your guidance as to how best to improve
the process for the future.
I would yield back the rest of my time.
The Chair will now recognize the distinguished Ranking
Member for 5 minutes for an opening statement.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
The legitimacy of our elected leaders depends upon the
legitimacy of our election process. During the last election,
one organization became notorious for threatening that
legitimacy through a massive campaign of improper election
activity. That organization is called ACORN, and its actions
cry out for investigation by this Committee.
We will hear much more about ACORN from some of our
witnesses today, but by way of general background, let me read
sections of ACORN's extensive rap sheet which spans from coast
to coast.
In Seattle, local prosecutors indicted seven ACORN workers
following a scheme the Washington secretary of state called the
worst case of voter registration vote in the state's history.
Of the 2,000 names submitted by ACORN, only nine were confirmed
as valid. The rest--over 97 percent--were fake.
In Missouri, officials found that over 1,000 voter
addresses submitted by ACORN did not exist. Eight ACORN
employees pled guilty to Federal election fraud there.
In Ohio, an employee of one ACORN affiliate was given crack
cocaine in exchange for fraudulent registrations that included
underage voters and dead people.
Last year, in Pennsylvania, a former ACORN worker was
charged with 19 counts of perjury, making false statements,
forgery, and identity theft.
In my own State of Wisconsin, the special investigations
unit of the Milwaukee Police Department issued a report that
concluded eight people were sworn in as deputy registrars who
are convicted felons under the supervision of the Division of
Corrections. ACORN was their sponsoring organization.
The 67-page Wisconsin report generally describes what it
calls an illegal organized attempt to influence the outcome of
the 2004 election in the State of Wisconsin. The report found
that between 4,600 and 5,300 more votes were counted in
Milwaukee than the number of voters recorded as having cast
ballots. Mike Sandvick, the head of the special investigative
unit, said the problems his unit found in 2004 were only the
tip of the iceberg of what could happen today.
Another former ACORN field director reported ACORN threw
out Republican registrations and paid cash for Democrat
registrations.
In the end, during the 2008 election, ACORN's executive
director had to admit that of the 1.3 million new voters ACORN
claimed to have registered, only a third of those 450,000 were
legitimate and that the organization was forced to fire 829 of
the canvassers it hired for job-related problems, including
falsifying registration forms.
Astonishingly, in the face of all this, a lawyer for
President Obama's election campaign wrote a letter to the
Justice Department demanding that it investigate not ACORN, but
the McCain campaign for daring to mention what the campaign
lawyer referred to as unsupported spurious allegations of vote
fraud.
But the President should be particularly concerned with
ACORN's behavior because, as it was reported last year, his
presidential campaign paid more than $800,000 to an offshoot of
ACORN for services it misrepresented in Federal reports. The
Obama campaign initially reported the ACORN affiliate used the
money for polling, advance work, and event staging, but really
it used the money for the same projects that has mired ACORN in
criminal investigations in at least 12 states.
Beyond voting fraud, a recent article in The New York Times
revealed just how shady ACORN's financial operations can be,
stating, ``ACORN chose to treat the embezzlement of nearly $1
million as an internal matter and did not even notify its board
or law enforcement.'' The New York Times also reported that,
``An internal investigation revealed the potentially improper
use of charitable dollars for political purposes, illicit money
transfers, and potential conflicts created by employees working
for multiple affiliates.''
It is tragic enough when voluntary donations are used
illegally, but when ACORN also receives millions of taxpayer
dollars and it is eligible to receive millions more under the
wasteful spending bill that Congress just passed--as it turned
out, the 2008 presidential election was not close, and when
elections are not close, vote fraud too often goes
uninvestigated, but as elected representatives, we have a
special responsibility to ensure that only legal voters are
registered and that only legal votes are cast and counted.
I thank the Chair.
Mr. Nadler. The Chair now recognizes the distinguished
Chairman of the full Committee for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman, and friends.
This may be the most important part of the Judiciary
Committee's work, and yet out of 17 Members of the Committee,
we have five here--Steve King is around in the back--no press,
and I think that tells a story in itself. Now everything in a
democratic system turns on the fairness of the voting process,
to choose who governs, at every level, and this is not about
just looking at the last election. It is about looking at the
history of elections in this country.
We have come through two presidential elections that were
highly controversial. We have never had the Supreme Court
decide a presidential election before. And what went wrong in
Ohio is now a part of history. We have people in this country
for whom it is made so inconvenient to vote, that they
frequently do not get a chance to vote.
Then you have another group of people who have given up on
the voting process, that they just say, look, it is not going
to change very much anyway. And to have the former Chairman of
the Committee worry about ACORN as if that is a serious
problem, why don't we, Steve, have a hearing on ACORN?
Let's bring in everybody and go through it, but just
venting about it like this is some sinister group I do not
think reflects well on the seriousness of why we are, and there
are a lot of attitudes about voting, this whole phenomena of
voter ID that is sweeping the country, all of these allegations
about fraud in voting. I think we found the Department of
Justice had about 86 cases over a period of years.
In Michigan, we used to have hordes of suits come into
Detroit to challenge people voting--at their own physical risk,
I might add--but the whole idea is that we are going to get rid
of some of this fraudulent voting. We are going to challenge
people. They really had a ball for a while. They were snatching
papers away from election workers, and police were coming out
to get them safely out of election places.
So I am interested in how we can get a more positive
attitude about voting in America, and it has to come from the
Federal Government, and the celebration about the victory of
the 44th President really signals how much people do not
understand the depth of this problem.
We have some very serious problems, and because of the
state jurisdiction on much of this, it is not easy. It is not
like the feds can come in on each and every election problem.
With redistricting, the courts just did us a great for. Thanks
a lot, Supreme Court, for the earlier decision this week that
rather complicated the process.
So I look forward to the witnesses. I commend the Chairman
and Ranking Member for bringing us together today.
Mr. Nadler. Thank you, Mr. Chairman.
In the interest of seeing to our witnesses and mindful of
our busy schedules, I ask that other Members submit their
statements for the record. Without objection, all Members will
have 5 legislative days to submit opening statements for
inclusion in the record.
Without objection, the Chair will be authorized to declare
a recess of the hearing, if necessary to do so.
We will now turn to our first panel of witnesses. As we ask
questions of our witnesses, the Chair will recognize Members in
the order of their seniority on the Subcommittee, alternating
between majority and minority, provided that the Member is
present when his or her turn arrives. Members who are not
present when their turns begin will be recognized after the
other Members have had the opportunity to ask their questions.
Of course, that assumes that that is a relevant consideration
today. The Chair reserves the right to accommodate a Member who
is unavoidably late or only able to be with us for a short
time.
Our first panel consists of four witnesses.
Barbara Arnwine, executive director of the Lawyers'
Committee for Civil Rights Under Law, is our first witness. In
2004, Ms. Arnwine was the leader of the non-partisan Election
Protection Coalition which helped to organize 8,000 lawyers to
accept calls from voters and serve as poll monitors in over 28
states. The Election Protection Voter Assistance Program
continues to thrive today under her leadership. Ms. Arnwine is
a graduate of Scripps College and Duke University School of
Law.
Matthew Segal is the founder and executive director of the
Student Association for Voter Empowerment, SAVE, a Washington,
DC-based, non-partisan, non-profit organization funded and run
by students with a mission to increase youth voter turnout by
removing barriers to participation and promoting stronger civic
education.
Mr. Segal was appointed a senior research fellow and
national democracy coordinator for the Roosevelt Institution, a
7,000-member national student think tank. Additionally, he
serves on Ohio Secretary of State Jennifer Brunner's Voting
Rights Advisory Council, guides regular workshops and panels on
youth voter mobilization and voter participation trends, and
contributes a blog to The Huffington Post.
Heather Heidelbaugh--and I hope I pronounced that
correctly--is a shareholder in the litigation services group of
Babst, Calland, Clements & Zomnir--I hope I pronounced that
correctly, too--and vice president of the Republican National
Lawyers Association. Ms. Heidelbaugh has substantial experience
practicing election law and has frequently lectured on the
topic. Previously, she served as the Bush-Cheney 2004
Pennsylvania election counsel. Ms. Heidelbaugh received a B.A.
in economics and political science from the University of
Missouri-Columbia, where she also earned her J.D.
And, finally, Dr. James Thomas Tucker is a consulting
attorney for the Native American Rights Fund. Currently, he is
co-counsel in Nick v. Bethel, Alaska, the first language
assistance and voter assistance case brought under the Voting
Rights Act on behalf of Alaskan natives. Previously, he worked
on behalf of the National Association of Latino Elected and
Appointed Officials to secure the 25-year re-authorization of
the Voting Rights Act, and he has served as a senior trial
attorney with the voting section of the Civil Rights Division
at the U.S. Department of Justice.
Dr. Tucker holds doctor of the science of laws and master
of laws degrees from the University of Pennsylvania, a juris
doctorate degree with high honors Order of the Coif from the
University of Florida, and a master in public administration
degree from the University of Oklahoma. He received
undergraduate degrees in history from Barrett Honors College at
Arizona State University.
I am pleased to welcome all of you.
Your written statements in their entirety will be made part
of the record. I would ask each of you to summarize your
testimony in 5 minutes or less. To help you stay within that
time, there is a timing light, I should say, at your table.
When 1 minute remains, the light will switch from green to
yellow, and then red when the 5 minutes are up.
You may be seated.
The first witness for 5 minutes is Ms. Arnwine.
TESTIMONY OF BARBARA B. ARNWINE, EXECUTIVE DIRECTOR, LAWYERS
COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Ms. Arnwine. Okay. There we go.
Mr. Chairman and Members of the Committee, thank you for
inviting me to this hearing today.
My name is Barbara Arnwine, executive director of the
Lawyers' Committee for Civil Rights Under Law. The Lawyers'
Committee leads Election Protection, the Nation's largest non-
partisan voter protection and education effort. This historic
coalition brought together hundreds of national, statewide, and
local organizations, and law firms in common purpose to provide
eligible voters with the tools they need to cast a ballot that
counts.
Through our state-of-the-art 866-OUR-VOTE hotline,
interactive Web tools, and comprehensive field programs, we
directly helped over a half a million voters in 2008's historic
election. This election exemplified a stark dichotomy in which
we saw a historic election of unexpected voter participation
take place against a background of persistent barriers and
chicanery. We have a duty to make our elections open to all
eligible citizens, conduct them fairly, and make them
transparent so all Americans have confidence in the electoral
system today.
Today, Mr. Chairman, I want to thank you for your
leadership in reintroducing the Deceptive Practices and Voter
Intimidation Prevention Act of 2009, which helps thwart
deliberate attempts by political operatives to confuse,
deceive, and intimidate voters at the polls. In addition, this
Committee has played a lead role in exposing the failures of
the Justice Department in previous Administrations,
particularly in the area of voting rights. These two issues--
the need for Federal legislation banning deceptive practices
and Justice Department enforcement of Federal voting rights
protections--are the focus of my testimony today.
Our Election Protection experience in the last several
cycles has confirmed an unfortunate reality: Deceptive
practices--that is false information designed to mislead voters
about the time, place, and manner of elections--has become an
endemic problem. For example, in 2004, there were flyers from
the fictitious Milwaukee Black Voters League telling voters
that if they had voted in the primary or if anyone in their
family had been guilty of any infraction, even a traffic
ticket, they could not vote in the presidential election and
would be imprisoned for 10 years if they voted.
In 2008, Election Protection received almost daily reports,
in the weeks leading up to the election, of deceptive
practices. Flyers, robocalls, emails, text messages, and online
social networking programs such as Facebook were all used to
deliver false voter information.
One egregious example occurred on the campus of George
Mason University. An email circulated around the campus
purportedly from Provost Peter Stearns informing students and
staff that the election had been postponed until Wednesday,
November 5. Later, Stearns sent a message revealing that
someone had hacked into the system and that voting would indeed
take place ``today, November 4.''
We believe Congress should prioritize the Deceptive
Practices and Voter Intimidation Act for this year. An effort
to make it ``unlawful for anyone before or during a Federal
election to knowingly communicate, or attempt to communicate,
false election-related information about the election with the
intent to prevent another person from exercising the right to
vote,'' is directly responsive to the type of problems that
voters encounter. The Deceptive Practices Act and extended
enforcement therein establishes a clear standard of law: If you
intend to deceive voters, you will be punished.
Mr. Chairman, you deserve our utmost appreciation for your
continued attention to this matter.
The Bush administration's underenforcement of section 7 of
the National Voter Registration Act of 1993 disenfranchised
millions of poor Americans. Section 7 requires public
assistance agencies to provide voter registration applications
and offer assistance to individuals applying for benefits.
Congress included section 7 to make sure that people who are
poor and vulnerable would not be disadvantaged in voter
registration because they did not have driver licenses and thus
would not be registered under the motor voter provisions of the
NVRA.
The Lawyers' Committee has been working with Demos and
Project Vote on a national effort to enforce section 7. In the
last reporting period of the United States Election Assistance
Commission, officials received only 500,000 applications from
public assistance offices as compared to 16.5 million
applications from motor vehicle offices. We estimate that more
than half of the states are in violation of section 7.
For most of the Bush Justice Department years, section 7
non-compliance was ignored. The department brought only one
case under section 7 in Tennessee where it was part of a larger
NVRA case. It was not until 2008 that the Bush Justice
Department began taking its responsibilities seriously by
reaching out-of-court settlements in Illinois and Arizona.
Active section 7 enforcement can make a difference. Last
year, the Lawyers' Committee filed suit against Missouri's
Department of Social Services in ACORN v. Scott. In July, the
district court granted our motion for preliminary injunction
and ordered an interim remedial plan. In the first 6\1/2\
months under the remedial plan, the Department of Social
Services registered nearly 80,000 people, a 2,000 percent
increase as compared to the 2005-2006 reporting period.
If there was full compliance with section 7, instead of a
paltry 270,000 people being registered per year by social
services agencies, 2 to 3 million poor people would be
registered to vote.
Mr. Chairman, thank you and the Committee for the
opportunity to testify today, and I would be happy to answer
any questions.
[The prepared statement of Ms. Arnwine follows:]
Prepared Statement of Barbara R. Arnwine
Mr. Chairman and members of the Committee, thank you for inviting
me to this hearing today. My name is Barbara Arnwine, Executive
Director of the Lawyers' Committee for Civil Rights Under Law. The
Lawyers' Committee leads Election Protection, the nation's largest
nonpartisan voter protection and education effort. This historic
coalition brought together hundreds of national, statewide and local
organizations in common purpose to provide eligible voters with the
tools they need to cast a ballot that counts. Through our state of the
art 866-OUR-VOTE hotline, interactive web tools and comprehensive field
programs, we directly helped over half a million voters in 2008's
historic election.
Mr. Chairman, I want to thank you for your leadership in combating
deceptive voting practices. As you know, voters across the country
still have to navigate through deliberate attempts by political
operatives to confuse, deceive and intimidate them as they try to vote.
In particular, I thank Chairman Conyers for reintroducing the Deceptive
Practices and Voter Intimidation Prevention Act of 2009. This bill will
not only prevent these practices under federal law, but will provide
the necessary administrative remedies to ensure quick dissemination of
correct information to the affected communities in ways they trust. In
addition, this Committee has played a lead role in exposing the
failures of the Justice Department in the previous Administration,
particularly in the area of voting rights. These two issues--the need
for federal legislation banning deceptive practices and Justice
Department enforcement of federal voting rights protections--are the
focus of my testimony today.
The Lawyers' Committee, founded 46 years ago, by President Kennedy
enlists the private bar in providing legal services to address racial
discrimination. Since our inception, voting rights has been at the core
of our work. Just yesterday, we filed our brief in the United States
Supreme Court in Northwest Austin Municipal Utility District No. 1 v.
Austin, where we assert that Congress acted within its broad authority
to enforce the guarantees against voting discrimination in the 14th and
15th Amendments when it reauthorized Section 5 of the Voting Rights Act
three years ago.
In the aftermath of the 2000 election debacle, we cofounded
Election Protection to monitor and mitigate problems and to help ensure
that all voters have an equal opportunity to participate in the
political process. In 2005, we created an initiative within the Voting
Rights Project of the Lawyers' Committee--the National Campaign for
Fair Elections--to lead Election Protection and the Lawyers'
Committee's efforts to reform the election process.
The 2008 Election Protection program was our most ambitious voter
education and protection effort in history. Election Protection built
the largest voter protection and education effort yet, bringing
together civil rights advocates, diverse community partners, media and
concerned citizens to safeguard the votes of all Americans. We did a
tremendous amount of public outreach with NBC, BET, and other media to
educate voters on our efforts. With the support of over 150 coalition
partners, we worked with election officials, conducted strategic legal
voter protection field programs and answered over 240,000 calls to 1-
866-OUR-VOTE our one of a kind voter support hotline that, combined
with our sister hotline 1-888-Ve-Y-Vota, is the only nationwide number
to provide live, real-time assistance to voters to help them cast a
ballot. Further, we took advantage of new technology, and initiated our
online voter education program--www.866OURVOTE.org, which served as an
interactive clearinghouse for state and national voting rules,
regulations, news and information on hot election topics. From
September 17th through Election Day, more than 283,000 people visited
the website. Of course, Election Protection's primary purpose is to
deliver a comprehensive support network to voters. That goal, however,
is followed closely by our unique data collection effort. Combining the
stories from callers into the hotline with those that come in from our
interactive webchat and those developed in the field, our partner, the
Electronic Frontier Foundation, created www.ourvotelive.org, a public
website that collects the experiences of the hundreds of thousands of
voters with whom Election Protection interacts. The result is the most
complete picture of the obstacles Americans face as they head to the
polls from the perspective of the voters.
Mr. Chairman, I believe we have not only a legal obligation, but a
moral one to uphold such fundamental rights of all eligible Americans.
Since the ratification of the civil war amendments, through the Voting
Rights Act of 1965, the National Voter Registration Act of 1993
(``NVRA'') and the Help America Vote Act of 2002, Congress has
demonstrated its commitment to protecting this right. Now is the time
to continue that tradition by focusing on election reform when we are
not clouded by the partisanship of an election year. Instead, we should
focus on election reform--both here in Congress, and in the
administrative agencies responsible for protecting our rights--at a
safe enough distance to develop and pass real, meaningful reforms. Now
is the time to pass the Deceptive Practices and Voter Intimidation Act
and now is the time to refocus the Department of Justice on its
historic role as a protector of the right to vote. We have a duty to
make our elections equally open to all eligible citizens, conduct them
fairly and make them transparent so all Americans have confidence in
the electoral system, today, Mr. Chairman, you are taking the critical
first step on that noble path.
The recent election season presented us with a stark dichotomy in
which we saw a historic election take place amid a background of old
concerns. We should ensure that such elections, although they may be
historic, are substantiated by increased access and credibility.
Attached to my testimony is our report,* Election Protection 2008:
Helping Voters Today, Modernizing the System for Tomorrow, which
details the Election Protection experience from 2008 and our
recommendations as to how to improve our election system. My testimony
focuses on two issues of particular concern to this Committee: the
endemic problem of practices that disfranchise voters by intentionally
deceiving them as to the time, place and manner of elections and the
under-enforcement of federal voting protections by the United States
Department of Justice.
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*The report, ``Election Protection 2008: Helping Voters Today,
Modernizing the System for Tomorrow,'' has been made a permanent part
of this record and is available at the Committee on the Judiciary. This
report may also be viewed on the Internet at: http://
www.866ourvote.org/tools/documents/files/0077.pdf
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DECEPTIVE PRACTICES
Our Election Protection efforts are very important to me; In fact,
I personally help answer phones and participate in a variety of ways
during the chaos and excitement of each election season, surrounded by
hundreds of dedicated colleagues committed to providing voters with the
information they need to go to the polls and have their vote counted.
The phones will ring on the day after the election and sometimes it is
an ultimately heartbroken voter who, because of a flier, email or call
went to the poll on the wrong day. This should never happen. I hope you
will stand with me in ensuring that it does not continue.
Our Election Protection experience in the last several cycles has
confirmed an unfortunate reality; deceptive practices--false
information designed to mislead voters about the time, place, and
manner of elections--has become an endemic problem. For example, in
2004, there were fliers from the non-existent Milwaukee Black Voters
League telling voters that if they had voted in the primary or if
anybody in their family had been guilty of any infraction, even a
traffic ticket, they could not vote in the Presidential election and
would be imprisoned for ten years if they voted. In Allegheny County,
Pennsylvania there was a notice on official-looking letterhead
informing Republicans to vote on Tuesday, November 2 and Democrats to
vote on Wednesday, November 3. Indeed, the day after the election the
866-OUR-VOTE hotline received calls from voters asking us why the polls
were not open. In 2006, we received reports from voters in several
states saying that they had received calls stating their polling place
had been moved when it had not and or stating that the their
registrations had been cancelled.
In 2008, Election Protection received almost daily reports in the
weeks leading up to the election of voters targeted with misinformation
and voter intimidation. These were intentional efforts to keep voters
from casting ballots. Fliers, robocalls, e-mails, text messages and
online social networking programs such as Facebook were all used to
deliver deliberately false information about registration, polling
locations, poll closing times and voter ID requirements. These are
deceptive practices we have observed repeatedly since the start of our
Election Protection efforts. In fact, this year, deception expanded, as
new, high tech outlets made it easier than ever to disseminate false
information quickly. One egregious example occurred on the campus of
George Mason University--an e-mail circulated around the campus
purportedly from Provost Peter Stearns, informed students and staff
that the election had been postponed until Wednesday, November 5th.
Later, Stearns sent a message revealing that someone had hacked into
the system and that voting would indeed take place ``today, November
4th.''
Our efforts need to adapt accordingly to combat these practices and
minimize the effect of partisan tricks. This is an opportunity for us
to use new media to combat those very same tactics. We need to make
sure correct information is clearly identified, consistent and widely
accessible.
More examples follow, which demonstrate the influences deceptive
practices had on the most recent election:
Pennsylvania--In a West Philadelphia neighborhood, fliers
appeared stating that anyone who showed up at the polls with a
criminal record of any kind--including something as minor as an
unpaid traffic ticket--would be arrested on the spot by law
enforcement officials stationed at every polling location.
Election Protection conducted aggressive media outreach in the
area to quickly debunk this myth. As a result of Election
Protection's efforts, the false fliers were discussed and
discredited in articles about election-related dirty tricks
published by the Associated Press, Philadelphia Inquirer,
McClatchy and ABC.com.
Michigan--Misinformation about student voting rights surfaced
in Michigan as in other states. Emily D. of Grand Rapids was
working to get eligible voters--including students--registered
in time to vote for November's general election. Like many
students, Emily was given erroneous advice from election
officials that registering students in a county other than
where their parents lived could endanger their financial aid
and health insurance. She called the 866-OUR-VOTE hotline to
verify this information, and upon learning that students could
register in Michigan without legal repercussions, Emily went on
to register 200 new student voters
Missouri--The Secretary of State's office in this state
reportedly received complaints from people who had received
text messages claiming that due to high turnout, Democrats
would be voting on Wednesday, November 5. In one location, it
was reported that there was a sign posted, informing voters
that they were not allowed to vote a straight ticket, which
prompted the voter who called Election Protection--and untold
others--to vote against his preferred party once to ensure that
his ballot would be counted.
These were not cases of isolated incidents--quite the contrary--
they only begin to highlight occurrences of similar circumstances in
many states throughout the country.
As we have noted, voters in nearly a dozen states were the victims
of misinformation in the weeks leading up to and including Election
Day. By denying a voice to eligible voters, deceptive practices
increase the poisonous cynicism voters have about the process.
Again, we applaud the work done by this Committee in reintroducing
the Deceptive Practices Act this year. We believe Congress should
prioritize this bill, as such legislation can have a tremendous stake
in the election process in light of the problems we still see, as
outlined above. An effort to make it ``unlawful for anyone before or
during a federal election to knowingly communicate, or attempt to
communicate, false election-related information about that election,
with the intent to prevent another person from exercising the right to
vote'' is directly responsive to the type of problems we see. We
believe this is a warranted and welcomed effort to remedying those
persistent problems.
Historically, voters who are deliberately provided misinformation
about when, where or how to vote or about voter registration
requirements do not have adequate legal recourse. The Deceptive
Practices Act and extended enforcement therein, establishes a clear
standard of federal law: if you intend to deceive voters, you will be
punished. For that, Mr. Chairman, you deserve our utmost appreciation
for your continued attention to this matter.
While it will be an improvement to prohibit deceptive practices
through federal law, in the heat of an election season, when most of
this activity happens, voters should also be informed of correct
information through sources they trust. Prosecutions are often not
possible or the most effective way to overcome deceptive information as
Election Day approaches--the most important goal near an election. This
remedy should be collaboration between the relevant government actors
at the general, state and local levels. The Justice Department should
collect information and statistics about these practices to inform
investigations and determine the extent and character of deceptive
voting practices. We laud the fact that the Act ``requires the Attorney
General, immediately after receiving such a report, to consider and
review it and, if there is a reasonable basis to find that a violation
has occurred, to: (1) undertake all effective measures necessary to
provide correct information to voters affected by the false
information; and (2) refer the matter to the appropriate federal and
state authorities for criminal prosecution or civil action after the
election.''
voting rights enforcement by the united states department of justice
We are shoveling our way out of a hole dug by several years of
insufficient attention to voting rights enforcement in the previous
administration. This Committee's record in unearthing the previous
administration's lack of enforcement is notable, but we are still
digging. There is a need for the Department of Justice to continue to
expand enforcement measures to help us dig out of the hole more
expeditiously.
One notable area where the Bush Administration's failure to enforce
federal voting protections impacted millions of poor Americans was its
under-enforcement of Section 7 of the National Voter Registration Act
of 1993 (``NVRA''). Section 7 requires public assistance agencies to
provide voter registration applications and offer assistance to
individuals applying for benefits. Congress included Section 7 to make
sure that people who are to poor and vulnerable would not be
disadvantaged in voter registration because they did not have drivers'
licenses and thus would not be registered through the ``motor voter''
provisions of the NVRA.
There is large-scale noncompliance with Section 7 as the Lawyers'
Committee has found while working with Demos and Project Vote on a
national effort to enforce Section 7. The numbers tell much of the
story. The United States Election Assistance Commission (EAC) reports
to Congress on NVRA compliance after every federal general election. In
the last reporting period, which covers the two year period preceding
the November 2006 election, election officials received only 527,752
applications from public assistance offices as compared to 16,591,292
applications from motor vehicle offices. We estimate that more than
half of the states are in violation of Section 7.
For most of the Bush Justice Department, Section 7 noncompliance
was ignored despite repeated efforts by the civil rights community to
prod it into action. The Department brought only one case under Section
7--in Tennessee, where it was part of a larger NVRA case. Only last
year did the Bush Justice Department begin taking its enforcement
responsibility seriously by reaching out-of-court settlements in
Illinois and Arizona.
Active Section 7 enforcement can make an enormous difference. Last
year, the Lawyers' Committee filed suit against Missouri's Department
of Social Services in ACORN v. Scott. In July, the district court
granted our motion for preliminary injunction and ordered an interim
remedial plan into effect. In the first six-and-a-half months under the
remedial plan, the Department of Social Services registered nearly
80,000 people--a 2000% increase as compared to the 2005-06 reporting
period. Moreover, in Tennessee, the one place where the Bush Justice
Department brought a case, the public assistance agencies generated
more than 120,000 voter registration applications in the 2005-06
reporting period. This represented more than one in five registrations
from public assistance agencies in the nation.
If there was full compliance with Section 7, 2-3 million poor
people would be registered to vote at public assistance agencies per
year as opposed to less than 270,000 per year as indicated in the EAC's
last biannual report to Congress. If approximately 15 attorneys and
eight paralegals were added to the Department of Justice's Voting
Section to focus on NVRA Section 7 work, we believe that full
compliance could be achieved in a two to three year period. This would
be a small price to pay for the results that would be achieved.
CONCLUSION
Mr. Chairman, thank you and the Committee for your continued
commitment to our fundamental patriotic need to provide an equal
opportunity for every eligible citizen to make her voice heard through
the ballot box. For far too long, the cynicism of deception and
intimidation has kept that goal just out of reach. To truly realize our
constitutional democratic promise, we must eliminate these cynical
practices and restore the role of the Department of Justice as a
guardian of our most fundamental right, the right to vote.
Thank you for the opportunity to testify today and I would be happy
to answer any questions.
__________
Mr. Nadler. Okay. Thank you.
Mr. Segal, you are recognized for 5 minutes.
TESTIMONY OF MATTHEW SEGAL, EXECUTIVE DIRECTOR, STUDENT
ASSOCIATION FOR VOTER EMPOWERMENT (SAVE)
Mr. Segal. Thank you, Mr. Chairman, Mr. Ranking Member.
My name is Matthew Segal, and I am the executive director
of the Student Association for Voter Empowerment, otherwise
known as SAVE. I speak here today representing a constituency
of over 10,000 members and on more than 30 college campuses
throughout the country. As several journalists coined 2008, it
was the year of the youth vote. Young voter participation
increased considerably, with over 23 million young Americans--
or 52 percent of all eligible young voters--casting ballots.
Beyond just statistics, young people provided unprecedented
energy, spirit, and volunteer service to political campaigns,
which was instrumental in shattering the conventional wisdom
that young people do not vote or do not want to vote. Yet
notwithstanding these clear successes, a closer examination of
the 2008 election demonstrates that young voters succeeded in
spite of numerous barriers, not necessarily because the system
worked efficiently.
The problems of the 2008 begin with voter registration.
First, there were several instances of misleading statements
made by election officials regarding the potential consequences
for out-of-town college students who wished to register and
vote within their campus communities.
At jurisdictions including Virginia Tech and Colorado
College, for instance, county clerks issued statements
indicating that if students chose to register at school and
they wanted to participate where they attend college for 9
months of the year, that their parents could no longer claim
them as tax dependents on their forms, and that they could
potentially lose their scholarships, grant money, and health
insurance. And since these false claims originated from
election officials, disputing their accuracy was particularly
difficult.
Students attempting to register at Jackson State
University, Furman, and both Radford and Mary Washington
College were repeatedly denied registration status because they
listed a dorm room as their residency. This dilemma was and is
the result of vague definitions of domicile, which registrars
may interpret subjectively to include or exclude college
communities.
While voter registration issues were indeed the dominate
problem in 2008 for young people, we also faced additional
barriers, including misinformation campaigns and deceptive
practices, like Ms. Arnwine referred to, and I will just
mention briefly that I would like to submit for the record some
flyers that were posted around Drexel University as well as
Penn, which warned if you have any unpaid parking tickets that
you could potentially risk jail time for voting.
Mr. Chairman, I would like to submit this.
[The information referred to follows:]
__________
Mr. Segal. Thank you.
Deceptive practices also occurred via text message, and
because the Obama and McCain campaigns regularly sent text
messages, this increased the believability of them for young
people.
Without sufficient time in my oral testimony to overview
absentee ballot problems and a lack of polling locations, I
feel compelled to briefly mention long lines. Temple
University, University of Connecticut, and University of South
Florida, students all waited in excess of 3 hours to vote,
while the longest lines were at Lincoln University in
Pennsylvania, over 11 hours in line. These extremely long lines
were caused by a lack of voting machines, five machines for
3,000 registered voters.
Long lines are a particularly salient issue to me, given
that my first voting experience attending college in Gambier,
Ohio, back in 2004 had the longest line lines in the country at
12 hours in length. I, therefore, come to this Committee today
with the exact same question I asked just 4 years ago when I
testified here in saying: What safeguards or standards are
currently in place to ensure that elected officials, whether
intentionally or inadvertently, cannot allocate two voting
machines to one district and 10 voting machines to another
district, both of which are identical in scope and composition?
While long lines or deceptive flyers create a clear graphic
image of voting barriers, perhaps the most insidious obstacle
for young people are stringent voter ID laws. Students at
Butler University and Earlham in Indiana voted provisionally
because they were unable to satisfy their state government-
issued photo ID requirements and could not use college or
university ID as a permissible alternative. According to a Rock
the Vote poll, 19 percent of young adults report they do not
possess a government-issued photo ID that reflects their
current address. This is a consequence of the fact that young
adults are a uniquely mobile demographic.
In response to the issues I have raised in this testimony,
we have several policy proposals, and I have little time to
share them, so I will be brief.
First, we support the Count Every Vote Act, which was a
comprehensive election reform piece of legislation introduced
by the late Congresswoman Stephanie Tubbs Jones.
We also support the Chairman of the full Committee's bill,
The Voting Opportunity and Technology Enhancement Rights Act.
With these bills, which already have some of these things in
their policies, we recommend same-day voter registration,
standards for allocation of voting systems, less restrictive
photo ID requirements, and a tracking system to follow the
status of absentee ballots similar to what one can do for a UPS
package.
Finally, SAVE's top legislative priority is passing the
Student Voter Act, a bipartisan bill introduced by Jan
Schakowsky, Steven LaTourette of Ohio, and Dick Durbin of
Illinois, which would amend the National Voter Registration Act
to require all colleges and universities that receive Federal
money to act as voter registration agencies for their enrolling
students. This bill would specifically target the 30 percent of
young non-voters in this country who cite uncertainty and
confusion with the registration process as their primary reason
for not participating.
I look forward to discussing potential solutions further in
the Q and A, and I thank you for including young people in this
critical discourse.
[The prepared statement of Mr. Segal follows:]
Prepared Statement of Matthew Segal
__________
Mr. Nadler. Thank you.
Ms. Heidelbaugh, you are recognized for 5 minutes.
TESTIMONY OF HEATHER S. HEIDELBAUGH, SHAREHOLDER, BABST,
CALLAND, CLEMENTS & ZOMNIR
Ms. Heidelbaugh. Thank you, Mr. Chairman.
My name is Heather Heidelbaugh, and I am an attorney.
On October 29, I represented a candidate, voters, and the
Republican State Committee of Pennsylvania in a lawsuit against
ACORN, alleging violations of Pennsylvania Election law as well
as fraud and misrepresentation. The injunctive request against
ACORN requested that they stop contacting voter registration
applicants who they knew to be fraudulent and encourage them to
vote; in addition, to agree with the King County, Washington,
consent decree where they agreed not to do a variety of things
that were deemed illegal in Washington State and to provide my
client with copies of the fraudulent voter registrations which
they submitted.
We became aware that there were four pending criminal
investigations in the Commonwealth of Pennsylvania by the
district attorneys as well as the U.S. attorney in
Philadelphia. The district attorney in Pittsburgh, who happens
to be a Democrat, was also investigating ACORN for fraudulent
voter registration activities.
Four days later after I filed my injunctive request, I was
contacted by a woman who is seated here behind me, and her name
is Anita Moncrief, and she is a former employee of Project
Vote, and she is seated right there in the red. She testified
at the trial, and the testimony that I provided to this
Committee is literally quotes from her testimony.
I have the testimony here, and the court reporter requires
that in order for me to copy it, every copy must be paid for.
So, if the Committee would like to obtain an official
transcript, they can do that from the court reporter of the
commonwealth.
One of the first things that I learned about Ms. Moncrief
was that she had been a confidential informant to The New York
Times since August, and The New York Times' Stephanie Strom
printed six articles based on the information that was given to
her by Ms. Moncrief.
In addition to Ms. Moncrief, she is accompanied here today
by Marcel Reed. Marcel Reed is the current chair of DC ACORN
and has been a volunteer for DC ACORN for a number of years and
has issued a press release verifying Ms. Moncrief's testimony.
When Ms. Moncrief indicated to The New York Times----
Mr. Nadler. Excuse me. Could you just clarify that? Was
that injunction granted or you just applied for it?
Ms. Heidelbaugh. The injunction was denied in part, and it
was granted in part. The part that was denied, we have also
filed against the secretary of the commonwealth, and they
testified that they believe that despite the massive voter
registrations that were submitted throughout the commonwealth
by ACORN that they felt that they could conduct a fair
election. That part of the injunction which was against ACORN
was granted and that additional time to ask for discovery and
to proceed against ACORN was allowed, based on the testimony of
Ms. Moncrief, as well as the ACORN witnesses that were in
court.
Ms. Moncrief testified for approximately 2 hours, and the
testimony that I provided to the Committee is actual quotes,
and what she said was that she was a development associate for
Project Vote, but that Project Vote and ACORN were virtually
one entity. Further, part of her work was to investigate voter
fraud allegations made by ACORN in the 2004 election cycle, and
what she found out was that ACORN had a systemic and systematic
corporate philosophy to deny voter registration fraud even when
they knew that it had occurred.
In large part, the problem with ACORN is the quality of
people that they hire. They do not do background checks. They
do not inquire whether the individuals can conduct regular
office work. Furthermore, they have enormous problems with
quality control. Even though they agreed in a consent decree
with the State of Washington to enhance their quality control,
they have not. In addition, there is training problems. They
have manuals in which they indicate to law enforcement that
they have trained individuals, but they really do not in
practice, she testified.
They know that they filed duplicate registrations. The
reason why they file so many registrations is because they are
paid $17 per registration. There is a quota system. Each ACORN
worker has to turn in 20. Some of the ACORN workers are paid in
cash, which is violative. They use the voter registration cards
for other purposes. There is also a fraud in the absentee
ballots. They know that there is going to be absentee ballots
that are requested on these fraudulent registrations, and they
have not done anything organizationally.
They also have a program to deny voter registration fraud,
and it is called informally Throw Them Under the Bus. What they
do is, when an individual ACORN employee is caught violating,
they say it is not a systemic organizational problem, even
though national president Maude Hurd signed a document with
King County that it is. They accuse the ACORN worker.
In addition, they have a Money for the Muscle program in
which she testified about a shakedown of corporations to
increase donors.
I see that my time has stopped.
I would sincerely request that Congress investigate these
allegations as I have out lined against ACORN.
[The prepared statement of Ms. Heidelbaugh follows:]
Prepared Statement of Heather S. Heidelbaugh*
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*Note: A collection of exhibits regarding evidence of criminal and
other improper actions by the Association of Community Organizations
for Reform Now (ACORN) is not reprinted here but is on file at the
Committee on the Judiciary, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties, and can be accessed at http://
republicans.judiciary.house.gov/Hearings/Read.aspx?id=21
---------------------------------------------------------------------------
__________
Mr. Nadler. Thank you.
The next witness I recognize is Dr. Tucker for 5 minutes.
TESTIMONY OF JAMES THOMAS TUCKER, CONSULTING ATTORNEY, NATIVE
AMERICAN RIGHTS FUND
Mr. Tucker. Thank you, Mr. Chairman.
Chairman Nadler, Ranking Member Sensenbrenner, and Members
of the Subcommittee, thank you very much for your invitation to
testify today on the lessons learned from the 2008 presidential
election. The Native American Rights Fund applauds the
Committee for examining this important topic. Last November
shows how far our native voters have come. Thanks to
registration and get-out-the-vote efforts by groups, including
the National Congress of American Indians, natives in many
parts of the country experienced high turnout rates.
At least 23 Native American candidates from 11 states and
17 tribes won their elections. Denise Juneau of the Three
Affiliated Tribes became the first American Indian elected to
statewide office in the State of Montana, following her
election as state superintendent of public instruction. Today,
thanks in large part to Federal laws, including the Voting
Rights Act, there are 67 natives serving in the legislatures of
16 states. Congressman Tom Cole, an enrolled member of the
Chickasaw Nation, was also reelected to office.
But election 2008 also shows that our work remains
unfinished. In Montana, American Indians in seven counties,
including three with very large reservation populations, had to
file a lawsuit to stop challenges to their voter registration.
Obviously, given the fact we are talking about Native
Americans, there can be no question that these are United
States citizens. NCAI reported that its election protection
efforts also identified, ``local tensions with state
officials'' and ``confusion about IDs.''
In Arizona, Agnes Laughter, a 77-year-old grandmother who
only speaks Navajo and has voted all of her adult life using
her thumbprint as her identification, was forced to sue state
election officials to restore her right to vote. Ms. Laughter
was first turned away from the polls in 2006 when new voter
identification laws went into effect in Arizona. She was unable
to meet state requirements because she was born in a Hogan, has
no electricity and, therefore, has no utility bills, has no
birth certificate, does not have a tribal identification card,
and does not drive.
Alaska, which has the highest percentage of native voters
of any state, continues to experience depressed native turnout.
In the 2008 presidential election, the statewide turnout rate
in Alaska was 66 percent. Unfortunately, turnout among Alaska
natives was 47 percent, almost 20 percent lower, despite the
fact that this was an historic election and one of the highest
profile elections in American history.
That is no coincidence. It is continuation of the pattern
of neglect and discrimination by state election officials
against geographically and linguistically isolated native
voters, which includes lack of outreach to the native voters,
English-only materials and assistance, the absence of publicity
in native languages, such as Yup'ik, the most widely spoken
Alaskan native language that is spoken by well over 15,000
Alaskan natives in Alaska, no information in native languages
about voter purges, and insufficient trained and qualified
translators, among other things.
Last July, a Federal court issued an injunction to force
Alaska officials to comply with the language assistance and
voter assistance requirements in section 208 of the Voting
Rights Act, and I have included a copy of that injunction as an
attachment to my testimony which describes these and other
problems in greater detail.
The experience of Native Americans in the 2008 presidential
election identified several areas where additional work is
needed in Indian country.
First and foremost, more enforcement of existing laws,
greater use of Federal observers, and, in fact, as I noted in
my written testimony, we have a pending request with Attorney
General Holder to certify Alaska, in particular the Bethel
census area, for Federal observers pursuant to his authority
under section 3 of the Voting Rights Act.
In addition, there need to be sufficient resources for the
Justice Department to investigate and litigate enforcement
actions, particularly as we head into the next round of
redistricting. And there also should be consideration of
legislation to expand early voting, same-day registration, and
other measures that facilitate native voter turnout and
participation.
NARF looks forward to working with Members of the
Subcommittee in identifying the cures to the remaining barriers
to political participation for Native Americans.
Thank you very much for your attention, and I would welcome
the opportunity to answer any questions you may have.
[The prepared statement of Mr. Tucker follows:]
Prepared Statement of James Thomas Tucker
ATTACHMENT
__________
Mr. Nadler. Well, thank you very much.
I will begin the questions by recognizing myself for 5
minutes.
Mr. Tucker, in a number of states, if election officials
cannot match a voter's registration information against
information in other government databases, the voter will be
purged. Although purging the rolls is necessary to keep the
states' rolls up to date, it could be highly problematic due to
the inherent unreliability of many of the computer-match
processes the states use. It is estimated that between 15 to 30
percent of all match attempts fail because of typos, other
administrative errors, and minor discrepancies between database
records, such as conflicting use of maiden and married names or
the use of hyphenated names.
Strict matching policies often disenfranchise thousands of
voters through no fault of their own. In your experience, is
this a major concern? How regularly do legally qualified voters
encounter the effects of these policies and, if you think it is
a major concern, what do you think can be done to prevent
erroneous purges?
Mr. Tucker. Mr. Chairman, I agree with you. It is a major
concern, and it is actually something that we encountered when
we were visiting several native villages during the 2008
presidential election. We actually encountered one very elderly
Alaska native, a Yup'ik speaker, in the native village of
Kasigluk who had been disenfranchised over 20 years ago because
of a voter purge, again very much using the sort of no-match,
no-vote procedure, and then was never informed about it.
The problem that we experience with the natives in
particular is that oftentimes the National Voter Registration
Act may be complied with in form, but it is not being complied
with in its spirit because language assistance is not being
provided, native voters receive cards in English that they
cannot read, and they are purged, and then they simply cannot
vote.
So, fundamentally, I think one of the issues that this
Subcommittee should look at is both in terms of enforcing laws,
such as the National Voter Registration Act, and also to
identity jurisdictions where no match procedures are being used
to disenfranchise and target specific communities, such as
Alaska natives and American Indians.
Mr. Nadler. In most states, election officials do not have
to give notice to voters when they are purged from the voter
rolls. This often means that eligible voters who are wrongfully
purged lack the ability to contest this decision. What can be
done to prevent this disenfranchisement, in your opinion?
Mr. Tucker. Well, you know, it is ironic because all of us
thought when the National Voter Registration Act was enacted in
1993 that this problem was resolved because it sets up a very
particular procedure that Ms. Arnwine has identified that has
to be followed. There has to be a postcard sent out to confirm
to the voter that ``We are putting you on notice that you have
been identified for purge,'' and give you an opportunity to
correct the problem.
That is just simply not being done in many jurisdictions
around the country, and, unfortunately, more often than not, it
tends to impact the most susceptible and vulnerable
populations, not just----
Mr. Nadler. Has any judicial action been taken to try to
make the states obey that part of the law?
Mr. Tucker. Well, you know, it is my understanding that the
Justice Department has brought some enforcement actions, but
that is one of the things that we are currently doing in the
State of Alaska, and it has been a struggle because they just
simply do not want to do it.
Mr. Nadler. They do not want to do it? They do not want to
send these notices to people?
Mr. Tucker. Well, they want to send them out in English,
but they do not want to provide the information in a language
that the voters can actually understand.
Mr. Nadler. Okay. And, Ms. Arnwine and Mr. Tucker, very
briefly, because I have one more question I want to ask, what
key lessons can we learn from the election to deal with
potential voting issues that might arise in future elections?
Very broad question, brief answer, please.
Ms. Arnwine. Yes.
Mr. Nadler. Ms. Arnwine?
Ms. Arnwine. Yes. I think that, you know, as I testified,
very key to future actions is passing that Deceptive Practices
and Intimidation----
Mr. Nadler. The Deceptive Practices Act. What else?
Ms. Arnwine. It is very key.
The other one will be coming to the House at some point,
will be working on voter modernization legislation. A lot of
testimony today about problems with third-party registration
groups really should not exist because, frankly, the states
should have the responsibility for automatically registering
all adult citizens, and that should not be the responsibility
of third-party groups. Just like when you turn 18 and you get
your Selective Services card, you should get your own voter
card.
And this whole issue about matches and everything that we
have been talking about, the purging, that also would not exist
because you would have better portability for voters within
states because people move just two blocks away and do not want
to..
Mr. Nadler. Why don't we do what some European countries
do--in fact, most countries do--and say it is the
responsibility of the state or the Federal Government, some
government, to make sure that everybody is registered----
Ms. Arnwine. Exactly.
Mr. Nadler [continuing]. And the default position is you
are registered unless someone proves you should not be, and
what I am told is, ``Well, you can do that in other countries
because you have a national I.D. card. We do not have a
national I.D. card. It would be very difficult to do it here.''
Would you comment on that?
Ms. Arnwine. Yes. The whole issue about an ID card doesn't
necessarily fly because everybody in the country has a Social
Security card----
Mr. Nadler. Yes.
Ms. Arnwine [continuing]. And a Social Security number, and
that is, I think, adequate for the purposes of being able to do
the----
Mr. Nadler. Okay. My time has expired. Could Mr. Tucker
briefly answer the same question?
Mr. Tucker. I think Ms. Arnwine has hit the nail on the
head. I mean, what we are really talking about here is that
many of the barriers that exist are things such as the National
Voter Registration Act that were originally put in place to
facilitate the administration of elections, but far too often,
rather than facilitating voter participation, these are being
set up and used as barriers to prevent people from voting, and
I think fundamentally the one question that needs to be looked
into is why aren't more people voting. We had record turnout in
terms of numbers, but a third of all American voters still did
not cast ballots.
Mr. Nadler. Thank you.
I now recognize the gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman.
I thank the witnesses for coming forward and testifying
today. A series of questions arise in my mind as I listen to
each of you, and I want to direct my first question to Ms.
Heidelbaugh.
Listening to Mr. Sensenbrenner's opening statement, I think
he said 1.2 million voter registrations by ACORN, roughly. I
saw a number that was 400,000 that were, I think, confessed by
them to be fraudulent. That number alleged is significantly
higher than that, I believe.
Can you imagine that there would be that many fraudulent
voter registrations in a country and not have fraudulent votes
cast off of those registrations?
Ms. Heidelbaugh. No, sir. I believe that the problem is the
mechanism by which that particular group, ACORN, goes about
doing voter registrations. The concern based on the testimony
and my conversations with people inside ACORN is that they
really do not as an organization want to register to people to
vote. They want to obtain money per registration card.
That is how they bill their customers, and so they have to
tell their foundations that provide them with support that they
have, in fact, obtained 1.3 million registration cards, and I
thought the number was actually flipped, that it was only
400,000 that were allegedly valid and it was the remainder that
were invalid.
Mr. King. Let me accept that correction. I am going off of
memory from months ago, as that number was accumulated rather
than a current report that is brought up today. Then the
foundations that fund ACORN--what would be their motivation for
wanting more voter registrations or for wanting more people
signed up as their customers?
Ms. Heidelbaugh. Well, the thought is that there is a fraud
going on here between ACORN here and the foundations because
the foundations legitimately want people to be registered so
that they can exercise their franchise, but what they do not
even understand is that the money that they are giving to ACORN
is not being spent properly.
Mr. King. But, Ms. Heidelbaugh, I am still concerned. Are
they foundations this altruistic that it is just their goal to
get more people registered, or do they have a political agenda
that is on the other side of that?
Ms. Heidelbaugh. I cannot speak for the foundations. I do
not know. I am taking them at their word, that these
organizations would like more people to be registered to vote,
and as an American, I think that is fantastic, that is great.
The problem comes in when you have all these fraudulent
registrations and you push them into the election divisions,
the election workers cannot register people who are proper
registrants which is a----
Mr. King. Let me submit that----
Ms. Heidelbaugh [continuing]. Which is a chilling of the
franchise.
Mr. King. I really do not want, of course, any fraudulent
voter registrations for the obvious reasons, but I do not think
I have heard it boiled down to what it really means here, and
that is that the more fraudulent voter registrations you have,
the more likely there will be fraudulent votes cast in greater
and greater numbers, and I believe that number was 537,000
votes that made the difference in the leader in the free world
in Florida in the year 2000.
And so I hear an emphasis on concern about voter
suppression. I certainly am opposed to willful voter
suppression, but I think we could always define voter
suppression as something else. Even a negative political
campaign that attacks a candidate is voter suppression. That is
exactly what it is. It is designed to keep their supporters
home.
But we will always be able to chew on the bone of voter
suppression to the end of a--the constitutional republic that
we are, but fraudulent votes are another matter. That is
something we should tolerate none of, nor any kind of a system
that facilitates it, and, you know, I understand Mr. Tucker's
testimony about we need more interpreters, and that keeps
people from the polls.
But in the end, you know, this is the United States of
America, and people have certain responsibilities, and there
are many constitutional privileges or constitutional rights
that we have. Voting is a conditional right, not specified in
the Constitution, and so I will submit this, that I do not want
to see 537 fraudulent votes. I do not want to see one because
it disenfranchises legitimate voters, and voter suppression can
generally, as sad as it is--and we have a history of it--as sad
as it is, can be overcome by the will to vote.
And I want to encourage the will to vote, but I do not want
to cancel the legitimate votes that are there, and so I will
add the case for a voter registration list that is free of
duplicates, deceased and felons, and require a voter picture ID
and that in, again, the states that outlaw felons from voting--
I have to condition that statement--and then when we have
voters that are reported--I saw a number of 55,000 New Yorkers
allegedly voted in Florida in the election.
Right now, I can tell you that an individual could register
to vote in all 99 counties in Iowa, vote absentee in all 99
counties in Iowa, and we do not have a provision to even stop
that. We are a long, long ways from having legitimate votes,
and I would like to see this Committee focus on the fraudulent
votes that are there, and we can chew on the voter suppression
bone in perpetuity.
Thank you, Mr. Chairman. I yield back.
I thank the witnesses again.
Mr. Nadler. I now recognize the Chairman of the full
Committee, the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you. Thanks, Mr. Chairman.
Well, since we are at a hearing on ACORN, is there anybody
here from ACORN that can testify?
Oh, well, may I ask respectfully that the Chairman consider
such a hearing so we can get to the bottom of this. I mean----
Mr. Nadler. Well, let me just say that I will certainly
consider a hearing on ACORN, if I ever hear any credible
allegations.
Mr. Conyers. Well, wait a minute. This is a member of the
bar here that got a successful partial injunction against
ACORN, and we have our distinguished colleague on the Committee
where he has asserted that people could fraudulently vote in
every county in the state. That is a pretty serious matter.
And I would just like the Chairman, who is a fierce
supporter of constitutional rights, civil rights, and human
rights, to take this matter up. I think it would be something
that would be worth our time.
Mr. Nadler. The Chairman makes a good point, and we will
certainly consider it.
Mr. Conyers. Well, that is what all Chairmen say around
here, so---- [Laughter.]
That is pretty instructive and encouraging.
So, you know, I am not too happy about the depth of our
discussion here, to be honest with you. And maybe we will get
it into the next panel or through further hearings even, but
the voter rights section, the civil rights section of the
Department of Justice has been clearly off track across the
years, and I suppose there is more that we can do about that.
One of our staffers praised Attorney Tucker for his
knowledge of section 5 and the great work he has done. Of
course, we know Attorney Arnwine and the work she has done. And
we are glad to see young people coming in. And, of course, on
campuses throughout the country, there was this great
misunderstanding of who could vote and where. There were some
campuses where students had to fly back to their home to cast
their ballot because they were not going to be allowed to cast
one at the university, and I think there is a lot we can do to
clear that up as well.
So we welcome the witnesses and invite you to stay with the
Committee as we work on these various matters.
Do any of the panelists wish to comment on anything they
have heard today? All right.
Ms. Arnwine. Yes, Congressman Conyers. Thank you so much
for everything that you do in promoting open and free and fair
elections.
One of the most critical things coming up before the
Congress is, of course, the budget for the Department of
Justice, you know, the budget in general, and I think it is
very critical that that budget have the correct funding for the
civil rights division so that there will be adequate resources
in the voting rights section to do the work that needs to be
done, not only for compliance with the section 7 of the NVRA
and compliance with section 5 and bringing cases under section
2, but also to make sure that there is adequate staff to deal
with redistricting issues and census issues.
I just think that that is one of the most important things
coming before this House and before the Congress and that it is
very, very important that there be a great increase in that
budget at least a 25 percent increase.
Mr. Segal. And, Mr. Chairman, if I may, Mr. King referenced
the notion of will to vote being prevalent in allowing or
mitigating this issue of voter suppression. But with regards to
will to vote, it cannot necessarily be overcome when students
or young people or anyone for that matter are standing in line
for 9, 10, 11 hours to vote.
I mean, that takes them away from their economic
opportunities. That takes them away from their jobs, their
families, their commitments, and it is tantamount to a poll tax
if it is taking them away from earning a living for 10 hours.
It is making them take an entire day off of work.
The other thing is you mentioned the 99 counties of Iowa.
Well, it is a felony to vote in every single county. So the
felony is the real deterrent from the voter fraud, not
necessarily making the laws more stringent and restrictive,
which could theoretically disenfranchise eligible citizens.
Mr. Nadler. The time of the gentleman has expired.
I now recognize the distinguished gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. I do not know how
distinguished, but I am from Texas.
But appreciate the testimony I have been hearing back in
the back room. But really appreciate you all being here.
Obviously, you are not here for the money you get for
testifying. You all can find that amusing, but you do not get
anything, right? So thank you. I know you come out of a sense
of duty to this country and love for it.
Ms. Heidelbaugh, let me ask you, though--the court had
granted an injunction, and we had heard that--what was the
legal threshold that you had to clear in order to get an
injunction? What kind of legal proof was required?
Ms. Heidelbaugh. We presented a day of testimony. Ms.
Moncrief testified under oath under penalty of perjury. Her
testimony is here. She subjected herself voluntarily and----
Mr. Gohmert. Yeah, but my question is what is the legal
threshold procedurally that you have to cross in order to get
an injunction?
Ms. Heidelbaugh. There was a misstatement that the
injunction was granted in part and denied in part, and the----
Mr. Gohmert. Okay.
Ms. Heidelbaugh [continuing]. The part that was granted was
the allowance of the petitioners, my clients, to proceed in
further discovery and further injunctive proceedings against
ACORN because the court found--and they are the trier of fact
in that case----
Mr. Gohmert. Right.
Ms. Heidelbaugh. They found that they had serious concern
about the testimony that had been presented against ACORN.
Mr. Gohmert. Okay. Is that a probable cause type level?
Ms. Heidelbaugh. That would be a criminal----
Mr. Gohmert. Preponderance?
Ms. Heidelbaugh. No, that would be----
Mr. Gohmert. A preponderance of the evidence?
Ms. Heidelbaugh [continuing]. A preponderance of the
evidence, yes.
Mr. Gohmert. That you would be successful and that you
should at least be entitled to proceed with discovery, correct?
Ms. Heidelbaugh. The court granted the right to proceed to
discovery and outlined--and I attached this in the documents
which I have provided to Congress--the language that the court
issued against ACORN.
Mr. Gohmert. So that trier of fact that heard the case on
the injunction found that there was evidence--some evidence--to
justify going forward, correct?
Ms. Heidelbaugh. Yes, sir.
Mr. Gohmert. Okay.
Ms. Heidelbaugh. I can----
Mr. Gohmert. So this----
Ms. Heidelbaugh. I can quote from----
Mr. Gohmert [continuing]. Body could recognize that an
authorized trier of fact within this country has found evidence
to justify discovery and going forward, in the event we wanted
to determine whether there was voter fraud out there with an
organization like ACORN and could be justified. Wouldn't you
think so?
Ms. Heidelbaugh. Yes, sir. And I could quote what the court
said, ``Given the above timeframe and given evidence that in
Pennsylvania practices of ACORN outreach workers can encourage
duplicate voter registration, that in Pennsylvania quality
control practices of ACORN may be inadequate to identify
duplicate voter registration, that in Philadelphia a huge
number of duplicate voter registrations were received, and that
in Pennsylvania ACORN maintains computer records of problematic
card cover sheets. The court will entertain a motion for
expedited discovery should a hearing on permanent injunction be
scheduled.''
Mr. Gohmert. Okay. Well, thank you.
Now we have been hearing here this week that with regard to
the U.S. census that is coming up the end of the decade, that
the census may be entering a contract with ACORN to assist them
in getting volunteers to help with the census, and so I would
be curious to anyone's response, if you have any concerns on
ACORN being hired to help do the census that will determine
what representation any states have here in the Congress.
Ms. Heidelbaugh. I would like to answer that, Congressman.
Mr. Gohmert. Okay. Go ahead.
Ms. Heidelbaugh. A couple of things. It is my understanding
that, in fact, that ACORN now is a national partner with the
U.S. Census Bureau and has signed a contract as of February of
2009.
In regard to the testimony under oath regarding the actions
of ACORN throughout the Nation, I believe that the following
violations of law have occurred. There is violations of the
Internal Revenue Code; 501(c)3 charitable organizations cannot
engage in the activities in which they are engaged. The people
here with me today filed a lawsuit against ACORN for
embezzlement. It is my understanding that a 501(c)3 that has
been charged with embezzlement must turn over that information,
even if they have been charged----
Mr. Gohmert. And so embezzlement causes you concern?
Ms. Heidelbaugh. It causes me deep concern.
Mr. Gohmert. How about that?
Ms. Heidelbaugh. In addition----
Mr. Gohmert. Here in Congress, we just give away lots of
money and we do not hold any people accountable, but----
Ms. Heidelbaugh. In addition, I believe that there is----
Mr. Gohmert [continuing]. It is interesting you find it----
Ms. Heidelbaugh [continuing]. Gross violations of the
Federal Election Campaign Act of 1971. There was testimony
under oath that the Obama campaign coordinated illegally with
ACORN in Project Vote, which was part of The New York Times,
and she testified to that in her story.
In addition, voter registration fraud is illegal in all 50
states. In addition, she testified about the Muscle for Money
program which would be potential criminal and civil RICO
violations and illegal use of the Election Administration
Commission grant. She testified under oath that that the
parameters of the work that was actually done based on a grant
from the EAC was not actually done.
There is gross violations of law, and as an American, I was
shocked and dismayed to believe that in this country that an
organization representing poor people could shake down
corporations for what she called protection money and that no
one in this country would stand up and be incensed and,
frankly, nauseated that this can go on in our country.
These women here have come here today to try to be heard so
that this Nation will hear them and so that something will be
done to stop this, and they have both been personally and
physically threatened because of their actions, and so we come
here today as ordinary American citizens, and we ask for every
American, poor, rich, White, or Black----
Mr. Nadler. The----
Ms. Heidelbaugh [continuing]. That they be heard.
Mr. Nadler. The time of the gentleman has well expired.
The gentleman from North Carolina is recognized.
Mr. Gohmert. Thank you very much.
Mr. Watt. Thank you, Mr. Chairman.
I want to do several things here. First of all, I want to
offer for the record Amendment 15 to the Constitution in
connection with Mr. King's assertion that there is no right to
vote in the Constitution. I will not read it, but I am sure Mr.
King will. He is not interested in knowing the facts. I would
invite now that Mr. King bring his attention to the 15th
amendment to the Constitution in connection with the question
of whether there is a right to vote.
I would ask Ms. Heidelbaugh--I would say first to you that
I am outraged that voter fraud takes place, but I would also
ask you--you got into court under some kind of voter fraud
statute, did you not? You have a record there.
Most states have laws against voting fraud. Would you think
it would be the responsibility of the United States Congress to
spend a bunch of time on trying this case as opposed to having
the courts try it where you are not constrained by a 5-minute
testimony rule. Everybody is playing by the same rules.
Everybody can come. I mean, I am always fascinated that
everybody who comes here thinks we should be playing the role
that the Judiciary is out there to play, and so I am outraged.
I would even stipulate if I were in court that voter fraud
does, in fact, take place. I might even stipulate that ACORN or
some of its employees have participated in voter fraud, but I
would hope that you would acknowledge that there is already a
law that deals with that, and you would not be in court in the
first place proceeding with your discovery but for that law.
Now let me go on to bigger and broader issues because Mr.
Segal has raised some interesting questions here that I would
like Mr. Tucker and Ms. Arnwine, our legal experts, to opine
about. He has raised questions about domicile for students and
lines at polling places, and one of the constraints we have
always had looking at the bigger picture here is article I
section 4 of the Constitution which says that ``times, places,
and manner of holding elections for senators and
representatives shall be prescribed in each state by the
legislature thereof, but the Congress may at any time by law
make or alter such regulation.''
I am the chair of the States Rights Caucus on this
Committee. Would it give us the authority in Federal elections,
in your opinion, Ms. Arnwine and Mr. Tucker, to address some of
these issues, like domicile and long lines or misallocation of
voting machines? Is that the basis that Mr. Nadler's piece of
legislation is proceeding on?
Mr. Tucker. Mr. Watt, I guess the first thing I would say
is that, yes, absolutely, and, in fact, I would turn the
Committee's attention to what the State of Pennsylvania
actually does for its student voting. I would think that any
Federal legislation that looks into this, dealing with student
voting, should deal with two basic premises.
Mr. Watt. But you start with the proposition that we have
the right to do it in Federal elections?
Mr. Tucker. Absolutely.
Mr. Watt. Okay.
Ms. Arnwine, my time is out. That is why I am rushing.
Ms. Arnwine. Students have the right to vote where they
reside in college, and it is very, very clear, yet we still
have all these jurisdictions violating it. Absolutely this
Congress has that right and should exercise its right.
Mr. Conyers. Mr. Chairman, could the gentleman get a couple
more minutes?
Mr. Nadler. Without objection.
Mr. Watt. All right. In that case, I will let Mr. Tucker go
ahead and talk about the Pennsylvania law. I just wanted to
establish the predicates here that we have the authority to do
this, but even then we are not going to try the cases. Somebody
else has to try these cases, and the judges out there have to
determine whether somebody has violated them.
You know, it is hard enough to do our part of this job in a
tripartite government. We are just one branch here, and I am
delighted that you are in court pursuing this case because
there, unlike here, they can hear all the sides. You can do all
the discovery. I am delighted that you have the right to do
discovery.
But contrary to what my Chair says, I am not coming to any
hearing to have a trial on ACORN. That is not my job. So go
ahead, Mr. Tucker. You got me on my soapbox today.
Mr. Tucker. Thank you, Mr. Watt.
There are two things the Pennsylvania law does. First of
all, it says that it is the student's choice on where they can
register to vote. And then the second thing is very simple.
They say do not vote twice. If you are going to vote here, do
not vote back in wherever home state you came from.
Mr. Watt. Now back to my original point, even that would
require somebody to enforce it, other than the state
legislature of Pennsylvania, would it not? If it were violated,
there would have to be a prosecution and a trial, two different
sections of the state legislative and judicial and executive
process.
So understand that we can pass the laws. I am addressing my
comments again to Ms. Heidelbaugh. I welcome you. I think it is
wonderful to have you here, but we are all falling to chasing
rabbits when we ought to be chasing big constitutional
principles when we go spend too much time on ACORN, not that I
am sanctioning anything improper that they did.
I thank the Chairman and yield back.
Mr. Nadler. Thank you. I thank the gentleman.
I now yield 5 minutes to the gentlewoman from Texas.
Ms. Jackson Lee. Chairman, thank you very much for this
timely hearing.
And to each and every one of you, thank you for your
presentation.
I ask for your indulgence on your testimony. We were in a
whip meeting talking about some other challenges about the
budget, but I think that the vision that we saw or have now in
place is a result of all of your organizations or at least the
organizations that I know have focused on these issues of
empowerment. It is the result of your work.
And the sadness is, as we worked on the Voting Rights Act
reauthorization and, if you will, certain sections, as we
worked on the Help America Act, we still have a ways to go.
There seems to be a dullness in the American psychie, meaning
political and governmental psychie, that, in fact, there is the
right, if you will, to task your decisions through this
democratic process. Even though the voting rights issue is not
constitutionally embedded per se, certainly, the equal
protection under the law is constitutionally embedded and so is
due process.
So, Ms. Arnwine, let me thank you, and I know that you have
been to Texas on many occasions, and I maybe under this new
Administration have your partnership to be back again because
even though we made great strides, for example, in a county
like Harris County and, in fact, elected new representatives,
happen to be in a different party, I think we have to question
and look again at the whole effort that we made on provisional
ballots. People do not understand it.
The idea of provisional ballots is to make sure that there
is empowerment. Our local elected officials and election
officers are using it to deny the right. They intimidate. They
make sure that you do not know about the provisional ballot,
you certainly do not understand what a provisional ballot is,
and they almost have a smirk, such as, ``Yeah, they will do the
provisional ballot for the circular file.''
We were out on the early voting time in the State of Texas,
that is creeping along a balanced voting process. When I say
balance, it has been dominated by one party for so long, and I
do not consider that the issue of empowerment. Everyone has a
right to vote their choice, but it does speak to intimidation,
and so I think it is extremely important that we have in front
of us, again, though it has many jurisdictional aspects, Help
America Vote, or the aspect that had the provisional ballot.
Let me just give you an example: 6,880 provisional ballots
cast in Harris County. These ballots were determinative in many
races. We lost a district attorney election and judges who
happen to be African-American, who happen to be a
representative from the gay community, a person who had an
ethnic name, if you will.
That was the allegation of why everybody else won and they
did not. I take issue with that and offense. You put yourself
forward and you have the credentials, you should be considered.
And so up to four district court judicial races which have a
current margin of 200 to 5,000 votes--all of these had these
kind of indicia to them, African-American and people from
distinct groups.
We had documentation from the Republican provisional vote
counter that said a retired business executive will chair the
ballot board of 35 people, said the counting process was
delayed by faulty work by Bettencourt court staff. That is our
tax assessor. That is his responsibility.
The problems included hundreds of voter forms whose
information the registrar's staff masked with white correction
fluid and then altered with new information. Also, the board
has accepted ballots cast by voters whose registrations were
classified by Bettencourt staff as incomplete.
My question to you is: What is the angle that we should
take as we place laws in place and the utilization of them
become moot beyond the beltway or at least beyond this body,
this Congress?
Ms. Arnwine. Thank you.
Ms. Jackson Lee. Barbara?
Ms. Arnwine. Thank you so much.
You know, we have worked together with the Prairie View
students----
Ms. Jackson Lee. Yes.
Ms. Arnwine [continuing]. And, you know, fighting not only
their right to vote, the illegal moving of polling places, all
kinds of problems together in Harris County, so thank you so
much for your great advocacy.
In our report, which is appended to my testimony, the
Election Protection Committee Coalition reports, you know, very
strongly that one of the biggest problems out there is the
barriers to voter registration, which is why most provisional
ballots are cast. There is some problem with registration.
Ms. Jackson Lee. Yes.
Ms. Arnwine. And we believe very strongly, as I said
before, that the ultimate answer to this is passing a new voter
registration modernization act that will be important to making
sure that the states automatically register citizens at the age
of 18 so that they receive their voter card and that they are
able to vote. I think that if we were able to do that,
provisional ballots would, in fact, decrease in their use.
Provisional ballots, you know, are misused in two ways.
They either are denied to people who are entitled to them, or
they are overused when people should be given regular ballots.
So provisional ballots have not turned out to be the panacea
that many people thought it would be under the Help America
Vote Act, and I think that the ultimate answer here is, you
know, voter registration modernization, VRM.
Ms. Jackson Lee. If the Chairman would indulge me just very
quickly, I just want to mention the voter ID, Mr. Chairman.
Anyone who wants to take a stab at this, we are debating the
voter ID in Texas. There is no doubt that the idea was to
diminish the voting impact of the last election. Should that be
made a national issue?
Mr. Nadler. The time of the gentlewoman has expired.
Ms. Jackson Lee. Yes, the----
Mr. Nadler. The witness may answer the question briefly.
Ms. Jackson Lee. Yes. Thank you, Mr. Chairman.
Should the voter ID legislation that is going around the
Nation be made a national issue, voter ID legislation?
Ms. Arnwine. No. Voter ID legislation is very injurious to
young voters. It is injurious to African-Americans, Latinos,
Native Americans, Asian American voters. It is injurious to
elderly voters, all of the people who normally do not have
driver's license. These are very bad laws. The evidence is very
strong, looking at Indiana and other states, that when you pass
these strict voter ID laws based on driver's licenses that it
really just----
Mr. Nadler. I thank the----
Ms. Arnwine [continuing]. Is injurious to a lot of people.
Mr. Nadler. I thank the witness.
I thank the panel.
This panel is dismissed with our thanks, and we would ask
the second panel to come forward.
Ms. Arnwine. Thank you.
Mr. Nadler. And we will now proceed with our second panel.
I would ask the witnesses to take their places, and while they
are taking their places, I will do the introductions,
especially since we have our votes proceeding on the floor, but
I think we can start this before we have to recess.
The first witness is Tova Andrea Wang, who is vice
president of research at Common Cause, where she focuses on
voting rights, campaign finance, and media reform. Prior to
joining Common Cause, she held positions with The Century
Foundation as a democracy fellow and executive director of the
foundation's post-2004 Election Reform Working Group. In 2001,
she was staff person for the National Commission on Federal
Election co-chaired by former Presidents Carter and Ford. She
is the author of numerous election reform reports, the most
recent of which was Voting in 2008: 10 Swing States.
She is a 1996 graduate of NYU School of Law, which I have a
particular affinity of because my son is now a student at NYU
School of Law, and a magna cum laude graduate of Barnard
College at Columbia University.
James Terry is the chief public advocate for the Consumers
Rights League. Mr. Terry has managed multiple grassroots voter
registration drives, including one of the most successful
programs ever developed in Southern California. He served as
Congressman John Campbell's chief of staff and was legislative
staff of Congressman Ed Royce. Previously, Mr. Terry served as
chief executive officer of the Free Enterprise Fund and as
executive director of STOMP, a grassroots mobilization program,
and maybe he will inform us at some point what STOMP stands
for.
Hilary Shelton serves as director of the NAACP's Washington
Bureau, which provides the Federal legislative and public
policy support for the national organization. During his long
career in Washington, Mr. Shelton has advocated for the passage
of important legislation, such as the reauthorization of the
Voting Rights Act. Previously, Mr. Shelton was the Federal
liaison/assistant director to the government affairs department
of the College Fund/UNCF and was the Federal policy program
director to the United Methodist Church's social justice
advocacy agency, the General Board of Church and Society.
Mr. Shelton holds degrees in political science,
communications, and legal studies from Howard University in
Washington, DC, the University of Missouri in St. Louis, and
Northeastern University in Boston, MA, respectively.
Glenn Magpantay is a staff attorney at the Asian American
Legal Defense and Education Fund where he coordinates the
organization's voting rights program. In this capacity, Mr.
Magpantay has represented Asian Americans in a number of
prominent voting rights cases, and he oversees AALDEF's Asian
American election protection efforts in 15 states across the
Northeast, Mid-Atlantic, and Midwest. Additionally, Mr.
Magpantay has written widely on the Voting Rights Act, on
bilingual ballots, redistricting, and Asian American voting
patterns, and political opinion.
He is a cum laude graduate of New England's School of Law
in Boston and completed his undergraduate studies at the State
University of New York at Stony Brook.
I am pleased to welcome all of you.
Your written statements will be made part of the record in
its entirety. I would ask each of you to summarize your
testimony in 5 minutes or less. To help you stay within that
time, there is a timing light at your table. When 1 minute
remains, the light will switch from green to yellow, and then
red when the 5 minutes are up.
You may be seated.
We have votes proceeding on the floor, and I thought we
would break for the three votes. We will break for the votes
now, and I apologize for witnesses for having to recess now,
but there are votes on the floor. So the Committee will stand
in recess and will return as soon as the third vote is called,
and I would ask the Members to return as soon as they vote in
the third vote.
I thank you.
The Committee is now in recess.
[Recess.]
Mr. Nadler. The Subcommittee is called back into session.
The Subcommittee hearing will come to order.
We thank the witnesses for their patience during our votes
on the floor, and regardless of the order in which I introduced
the witnesses, we will go from left to right in order of
testimony, so we will start with Mr. Shelton who is recognized
for 5 minutes.
TESTIMONY OF HILARY O. SHELTON, DIRECTOR, WASHINGTON BUREAU OF
THE NAACP
Ms. Shelton. Thank you. Good morning.
As you mentioned, my name is Hilary Shelton. I am director
of the NAACP's Washington Bureau.
I want to first thank the Chairman, Chairman Conyers as
well, and others----
Mr. Nadler. Mr. Shelton, are you using the mic?
Ms. Shelton. Yes. Sorry.
I would like to thank Chairman Nadler, Chairman Conyers,
and other Members of the Subcommittee for holding this year.
For more than 100 years, the NAACP has fought for equal
rights for all Americans. Sadly, our struggle continues as
there is still clear evidence of voter suppression throughout
the United States. While the 2008 election saw some
improvements in the terms of voter participation, we also saw
that there is still so much left to be done before the promise
of democracy is universally fulfilled.
In our pursuit of equal voting rights for all Americans,
the NAACP was involved in three lawsuits of note in relations
to the 2008 election. While I have detailed these cases in my
written testimony, I will further summarize them for you now. I
would also like to acknowledge the NAACP's interim general
counsel, Ms. Angie Ciccolo, who oversaw all the NAACP's legal
efforts as they related to the 2008 election and is here with
us today.
From the outset, I would like to say that it is our
experience that these are not isolated incidents. Indeed, all
three examples are indicative of the problems that are sadly
rampant throughout the United States and should be addressed by
Federal legislation before another Federal election occurs.
In the first case, NAACP Pennsylvania State Conference v.
Cortes, under the leadership of president Jerry Mondesire, the
Pennsylvania State Conference of the NAACP filed for an
injunction requiring Pennsylvania to furnish emergency paper
ballots to any precinct at which at least half the electronic
voting machines were broken. The state's position had been that
it would only provide paper ballots to precincts in which all
the machines had stopped working. I am pleased to say that we
prevailed in that case, and the judge's comments, which I have
included in my written testimony, were especially profound.
In the second case, under the leadership of Barbara
Bolling, the NAACP Indiana State Conference intervened as a
defendant in a lawsuit against the Lake County, Indiana, Board
of Elections, when they tried to close several early voting
places in predominantly African-American neighborhoods, while
leaving other polling places in predominantly White sections of
the county open. I am pleased to report that we were also
successful in our efforts.
The third case NAACP case from the 2008 election was
brought by the Michigan State Conference of the NAACP Branches
under the leadership of Yvonne White and confronted the
practice of caging. Specifically, the NAACP challenged the
Michigan Bureau of Elections' policy of immediately canceling a
voter registration upon learning that said voter had obtained a
driver's license in another states. In addition, the lawsuit
challenged provisions in the Michigan election law that call
for the rejection of newly registered voters whose original
voter registration cards are returned by the post office as
undeliverable. I am pleased to report that the court ruled in
our favor, thereby permitting more than 5,550 purged voters to
be returned to the rolls before Election Day.
As I said before, sadly, these three cases are not isolated
incidents. We hear instances in which voting rights of racial
and ethnic minority communities are routinely challenged. What
is perhaps more frightening, however, is the fact that some
efforts to disenfranchise whole communities are also taking
place at the Federal level. As I testified here before you, the
Subcommittee, just last year, the move toward requiring
government-issued photo identification from potential voters
would disenfranchise whole communities much in the spirit of
poll taxes.
While supporters of these initiatives purport to be
combating voter fraud, what these laws are, in fact, doing is
creating a barrier to keep the up to 20 million Americans who
do not have government-issued photo IDs out of the voting
booth. And I would hasten to add that a disproportionate number
of these people who do not have government-issued IDs are
racial and ethnic minorities or are low-income Americans.
Lastly, I would like to raise a disenfranchising issue that
the NAACP has been concerned about for decades. Nationally, 5.3
million Americans are not allowed to vote because they have
convictions of felony offenses on their records, regardless of
the nature of the offense or how much time has elapsed since
their conviction. And because of racial disparities inherent in
our criminal justice system, African-American men are
disenfranchised at a much greater rate. In the 2008 election,
one in eight African-American men were not allowed to vote
because of ex-offender disenfranchisement laws.
While the good news is that, since 1997, 19 states have
amended felony disenfranchisement policies in an effort to
reduce their restrictiveness, much more needs to be done. State
laws vary when it comes to defining a felony and in defining if
people who are no longer incarcerated can vote. The process to
regain one's right to vote in any state is often difficult and
cumbersome.
So, in closing, the NAACP calls for stronger Federal laws
to protect and enhance the rights of all Americans to cast a
free and unfettered vote and ensure that their vote is counted.
Specifically, the NAACP calls for Federal laws to require
guaranteed early voting with no excuses, institute same-day
registration nationally, outlaw voter caging, clarify and
strengthen the use of provisional ballots, make voter
intimidation and deception punishable by law with strong
penalties and establish a process for reaching out to
misinformed voters with accurate information, allow ex-
offenders once they are out of prison the opportunity to
register and vote in Federal elections without challenges or
complication.
Many of the incidents that I have reported here--and many
more of the stories that we have heard today--are sad and can
be avoidable.
Thank you for your leadership on this issue, and you have
the NAACP's unwavering support in reaching these goals, and we
stand ready to work with the Subcommittee and Congress to pass
comprehensive, effective voter empowerment legislation.
Thank you so much.
[The prepared statement of Ms. Shelton follows:]
Prepared Statement of Hilary O. Shelton
Good morning. My name is Hilary Shelton and I am the Director of
the Washington Bureau of the NAACP, our Nation's oldest, largest and
most widely-recognized grassroots-based civil rights organization. The
NAACP's Washington Bureau is the legislative and public policy arm of
the NAACP. Our organization currently has more than 2,200 membership
units with members in every state across the country.
I would like to begin by thanking and commending the Subcommittee
for holding this hearing. The right to vote is the cornerstone of our
Nation's democracy. Throughout our history, countless Americans have
fought and died to protect the right of people across the globe to cast
a free and unfettered ballot and to have that vote counted. We owe it
to these men and women and their families to ensure that the right to
vote is protected.
The NAACP has been in existence for more than 100 years, and since
our inception we have fought for equal voting rights for all Americans.
Sadly, our struggle continues as there is still voter suppression
throughout the United States. While the 2008 election saw some
improvements in terms of voting rights, we also saw that there is still
much to be done before the promise of democracy is universally
fulfilled.
In our pursuit of equal voting rights for all Americans, the NAACP
was involved in three lawsuits of note in relation to the 2008
election. Before I provide you details about these cases, however, I
would like to add that it is our experience that they are not isolated
incidents: indeed, all three examples are indicative of problems that
sadly are rampant throughout the Nation and should be addressed by
federal legislation before the next election is held.
In the first case, NAACP Pennsylvania State Conference v Cortes,
the Pennsylvania State Conference of the NAACP under the leadership of
State Conference President Jerome Mondesire and other voting rights
groups and private citizens filed for an injunction requiring
Pennsylvania to furnish emergency paper ballots to any precinct at
which at least half the electronic vote-counting machines had broken
down. The state's position had been that it would only provide such
paper ballots to precincts in which all the machines had stopped
working. In granting the Pennsylvania State Conference's request for an
injunction the Court wrote, ``Some waiting in line, of course, is
inevitable and must be expected. One must always choose between and
among a number of candidates for different offices listed on the ballot
and often, as in this election, there are questions to be read and
considered. All of this takes time. Nonetheless, there can come a point
when the burden of standing in a queue ceases to be an inconvenience or
annoyance and becomes a constitutional violation because it, in effect,
denies a person the right to exercise his or her franchise.''
In the second case, John B. Curley v. Lake County Board of
Elections/United Steel Workers District 7, et al. v. Lake County Board
of Elections the NAACP Indiana State Conference under the leadership of
State Conference President Barbara Bolling intervened as a defendant in
a lawsuit against the Lake County, Indiana Board of Elections. The
plaintiffs sought to enjoin the Lake County Board of Elections and
Registration and the Lake County Clerk from establishing early voting
sites in the cities of Gary, Hammond and East Chicago. On October 22,
2008, the court granted intervener NAACP's motion for a preliminary
injunction. The court enjoined the Lake County Board of Elections from
closing early voting sites in Gary, Hammond and East Chicago. In its
ruling, the court stated that ``providing early voting in the community
of Crown Point, with an overwhelming white population, and denying
accessible early voting to the majority of Lake County's African
American and Latino residents, would violate Section 2 of the federal
Voting Rights Act.'' The plaintiffs appealed the case. The Indiana
Supreme Court denied certiorari. The plaintiffs appealed to the Indiana
Court of Appeals. Oral argument was held on October 30, 2008. The Board
of Elections, Steel Workers and the NAACP prevailed on appeal and early
voting continued for voters in Gary, Hammond and East Chicago.
The third case I would like to bring to your attention is Michigan
State Conference of NAACP Branches et al. v. Terri Lynn Land, Michigan
Secretary of State, et al. On October 7, 2008, the Michigan State
Conference of NAACP Branches under the leadership of State Conference
President Yvonne White filed a lawsuit against the Michigan Secretary
of State. The lawsuit alleged that Michigan's voter purging and
cancellation procedures violate the National Voter Registration Act,
the Civil Rights Act of 1964 and First and Fourteenth Amendments of
U.S. Constitution. The lawsuit challenged the Michigan Bureau of
Elections' policy of immediately canceling a voter's registration upon
learning that said voter had obtained driver's licenses in other
states. In addition, the lawsuit challenges provisions of the Michigan
Election Law that call for the rejection of newly registered voters
whose original voter identification cards are returned by the post
office as undeliverable. Federal appeals ruled in the NAACP and other
plaintiffs' favor, thereby permitting more than 5,550 purged voters to
be returned to the rolls before Election Day.
As I said before, sadly these three cases are not isolated
incidents: we hear of instances in which the voting rights of racial
and ethnic minority communities are routinely targeted. What is perhaps
more frightening, however, is the fact that some efforts to
disenfranchise whole communities are also taking place at the federal
level. As I testified before this subcommittee just last year, the move
toward requiring a government-issued photo identification from
potential voters is a blatant attempt to disenfranchise whole
communities much in the spirit of poll taxes.
While supporters of these initiatives purport to be combating
``voter fraud,'' (a ``problem'' which, as numerous studies have shown,
is not really a problem when compared to other issues currently faced
by our Nation's electoral system), what these laws are in fact doing is
creating a barrier to keep the up to 20 million Americans who do not
have government-issued photo IDs out of the ballot booth. And I would
hasten to add that a disproportionate number of these people who do not
have government-issued IDs are racial or ethnic minorities or low-
income Americans. Furthermore, studies of recent elections show that
the application of photo-id requirements is biased: whether purposeful
or not, poll workers tend to ask African Americans and other racial and
ethnic minority voters for their photo identification at much greater
rates than they do Caucasian voters.\1\
---------------------------------------------------------------------------
\1\ Stephen Ansolobehere, ``Effects of Identification Requirements
on Voting: Evidence from the Experiences of Voters on Election Day,''
PS: Political Science & Politics (2009), 42:127-130 Cambridge
University Press, The American Political Science Association 2009
Atkeson, et.al, New Barriers to Participation: Application of New
Mexico's Voter Identification Law,'' Caltech/MIT Voting Technology
---------------------------------------------------------------------------
Project, 2008.
Stewart, et. al, ``Evaluating the Performance of Election
Administration Across the States: Lessons from the 200 Gubernatorial
Elections and the 2008 Super Tuesday,'' Paper prepared for the American
Political Science Association, August 27-September 1, 2008.
Lastly, I would like to raise a disenfranchisement issue that first
came into the national spotlight with the 2000 election, but that the
NAACP has been concerned about for decades. Nationally, 5.3 million
Americans are not allowed to vote because they have been convicted of a
felony, regardless of the nature of the offense or how much time has
elapsed since their conviction. Three fourths of these Americans are no
longer in jail. And because of the racial disparities inherent in our
criminal justice system, African American men are disenfranchised at a
much greater rate: in the 2008 election, 1 in 8 African American men
were not allowed to vote because of ex-offender disenfranchisement
laws.\2\
---------------------------------------------------------------------------
\2\ Ryan King, ``Expanding the Vote: State Felony
Disenfranchisement Reform 1997-2008'' the Sentencing Project, September
2008
---------------------------------------------------------------------------
While the good news is that since 1997, 19 states have amended
felony disenfranchisement policies in an effort to reduce their
restrictiveness and expand voter eligibility \3\ and citizen
participation, much more needs to be done to make ex-offender re-
enfranchisement more uniform across the nation. State laws vary when it
comes to defining a felony and in determining if people who are no
longer incarcerated can vote. Thus it is possible that in some states,
a person can lose their right to vote forever if he or she writes one
bad check. The process to regain one's right to vote in any state is
often difficult and cumbersome. Most states require specific
gubernatorial action, and in several states federal ex-felons need a
presidential pardon to regain their voting rights.
---------------------------------------------------------------------------
\3\ ibid
---------------------------------------------------------------------------
So to summarize, the NAACP calls for stronger federal laws to
protect and enhance the rights of all Americans to cast a free and
unfettered vote and to ensure that their vote is counted. Specifically,
the NAACP calls for federal laws to:
Require guaranteed early voting throughout the
country with no excuse required;
Allow same-day registration nationally;
Outlaw ``voter caging'', a practice by which mail is
sent to a registered voter's address and, if the mail is
returned as ``undeliverable'' or if it is delivered and the
voter does not respond, his or her registration is challenged;
Clarify and strengthen the use of provisional
ballots;
Make voter intimidation and deception punishable by
law, with strong penalties so that people who commit these
crimes suffer more than just a slap on the wrist, and establish
a process for reaching out to misinformed voters with accurate
information so they can cast their votes in time; and
Allow ex-offenders, once they are out of prison, the
opportunity to register and vote in federal elections without
challenges or complication.
As I said at the beginning of my statement, many of the incidents
that I have reported here, and many more of the stories that we have
heard today are as sad as they are avoidable. I think that everyone in
this room, and in fact, the vast majority of Americans, would agree
that Congress can and should do more to make sure that every eligible
American can cast a free and unfettered vote and should rest assured
that their vote will be counted. As such, the NAACP stands ready to
work with the subcommittee and the Congress to pass comprehensive,
effective voter reform legislation.
__________
Mr. Nadler. Thank you.
I now recognize Mr. Magpantay for 5 minutes.
TESTIMONY OF GLENN D. MAGPANTAY, STAFF ATTORNEY, ASIAN AMERIAN
LEGAL DEFENSE FUND (AALDEF)
Mr. Magpantay. Good afternoon, Chairman.
My name is Glenn Magpantay from the Asian American Legal
Defense and Education Fund. I am a staff attorney there. I
practice in voting rights law.
Does that work better? Very good.
So AALDEF litigates the Voting Rights Act and the Help
America Vote Act and the Constitution of the United States.
I have a PowerPoint presentation which identifies some of
the work that we have done in a number of cases.
We monitor elections for compliance with the Federal Voting
Rights Act and the Help America Vote Act, and these are the
provisions that we look for.
In 2008, AALDEF, working with national election protection,
monitored over 200 poll sites, surveying in our multilingual
exist poll over 16,000 Asian American voters. We covered 52
cities across the United States in 11 states.
Asian Americans are among the fastest-growing minority
population in the United States. Many are foreign born and have
no formal U.S. education. These are the jurisdictions that we
had covered. Because of section 203 of the Voting Rights Act,
the language assistance provisions, basically, Asian language
groups are covered in 16 counties in seven states across the
United States.
Many Asian Americans are limited English proficient, and,
therefore, they need ballots, such as this, which is a New York
ballot, that gives Asian Americans an opportunity to cast their
vote free of discrimination, bias, and harassment. And the
success of this tool cannot be underestimated.
We found in our multilingual exit poll that 31 percent of
Asian Americans were voting for the first time in these
elections, a tremendously high number, but there were problems
in terms of enforcement and compliance with section 203. A
number of times, assistance was inadequate, poll workers were
not allowed to assist voters, or they did not even know that
they needed to provide language assistance.
In the Lower East Side in New York, one poll site had one
Chinese interpreter to help hundreds of Asian American voters.
When poll workers tried to get additional interpreters, they
were told, ``You do not need any more. That is good enough.''
In Boston, Massachusetts, Boston would not translate the
names of candidates. The names of candidates are amongst the
most important pieces on a ballot. And yet Boston,
Massachusetts, says, ``No, we will not do that.'' Ninety-five
Chinese American voters came to us and said, ``I had trouble
identifying my candidates of choice because the ballots were
not fully translated.''
In section 208, which requires voters to get assistance by
persons of choice, poll workers said, ``No, you cannot get
someone to help you,'' even though that is their right under
the Voting Rights Act.
Now we do commend a number of jurisdictions for voluntarily
providing assistance and interpreters. Chicago, New Orleans,
Lowell and Quincy, Massachusetts, Middlesex, New Jersey, and
Philly. We are still working on Hamtramck, Mr. Conyers, and a
number of Michigan jurisdictions to provide assistance. So we
applaud those jurisdictions. However, it was not enough.
In Pennsylvania, there was a language line that was
supposed to help voters and poll workers, but poll workers
said, ``I did not know it was there.'' They did not know how to
access the language line.
In Virginia, the lack of interpreters provided
opportunities for partisan gain, and what you have there is
limited English proficient Korean senior citizens who had to go
to partisan campaign workers--in this instance, to the
Republican Party--to get assisted, and those campaigners not
only showed voters how to vote, but who to vote for. That was a
problem.
We found that Asian American voters encountered racist poll
workers and continued to face intimidating and hostile
environments in the poll sites. Asian American voters were
described as terrorists. In New York, South Asian Sikh voters
were told they all have to vote by provisional ballot because
``We cannot tell you all apart.'' We found a number of
jurisdictions in which training was insufficient for poll
workers.
Congress passed a Help America Vote Act that requires
mandatory posting of voters' bill of rights. Voters need to
know their rights, and yet many jurisdictions failed to even
post that notice blatantly and affirmatively not complying with
the Help America Vote Act.
We found voter registration lists. Like the problems that
Black and Latino voters faced in 2000 in Florida, Asian
Americans in 2008 and 2006 and 2004 in a number of
jurisdictions came to vote, their names were not on the list,
and they were not able to vote. They were turned away.
Congress, in its wisdom, passed the Help America Vote Act to
provide provisional ballots, and poll workers would not
administer them to voters. They said, ``If you are not on the
list, you cannot vote.''
In Lowell, Massachusetts, they told voters, ``Go to city
hall,'' and in Chinatown Philadelphia in Pennsylvania, they
horded provisional ballots because ``there is not enough. We
have too few ballots and too many voters.'' So they do not get
it.
We found a number of problems with regards to
identification. Asian Americans were subject to improper and
excessive forms of identification. In past elections, we had
complained of problems, of Asian American voters having to
provide naturalization certificates before they could vote.
South Asian voters were racially profiled in their polling
sites. And these are their jurisdictions.
Even in jurisdictions where all voters must provide
identification, like in Texas, Louisiana, Michigan, we found
that Asian American voters were subject to ID checks. White
voters got a pass. So they did not have to provide it, and so
we found even the mandatory obligation was racially disparate
and discriminatory.
We have a number of recommendations that we made, and we
are very proud to say that we would like to present our report
to the Committee on Asian American access to democracy--
formally into the Committee record. We have a number of
recommendations for the Committee on what things should be
done.
First, HAVA needs to be fixed to allow that provisional
ballots be used as opportunities to register voters for the
next election and to correct errors. This was the intent under
the Carter-Ford Presidential Election Commission after the 2000
elections. The problem is that the statutory language did not
explicitly state that, and so jurisdictions have done a number
of different things. It is a small fix which we think will have
a tremendous impact.
Mr. Nadler. The time has expired. Could you wrap up
quickly?
Mr. Magpantay. Okay. The only other thing is we believe
that the Department of Justice must more fully enforce the
Voting Rights Act and the Help America Vote Act, and the
Elections Assistance Commission should translate the voter
registration form into the federally required languages.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Magpantay follows:]
Prepared Statement of Glenn D. Magpantay
__________
Mr. Nadler. Thank you.
I will now recognize Mr. Terry for 5 minutes.
TESTIMONY OF JAMES TERRY, CHIEF PUBLIC ADVOCATE, CONSUMERS
RIGHTS LEAGUE
Mr. Terry. Thank you, Mr. Chairman.
My name is James Terry, and I am chief public advocate at
the Consumers Rights League. I appreciate the opportunity to
return to follow up our testimony from September about threats
to the integrity of the U.S. voting system. We hope that our
perspective will shed light on the matter before this Committee
today, namely that our system is still vulnerable to voter
registration fraud and to voter fraud.
In September, we examined the issue of voter registration
fraud and voter fraud through the prism of the actions of the
Association of Community Organizations for Reform Now, or
ACORN. As you will recall, we highlighted ACORN's troubling
pattern that spans multiple election cycles that included,
among others, the 2007 case in King County, Washington, where
seven ACORN workers were indicted for what officials called the
``worst case of voter registration fraud in the history of the
state.''
We also highlighted an example from 2008 in Wisconsin that
involved bribery and apparently falsified driver license
numbers, Social Security numbers, and similar personal
information. By the end of August, Milwaukee's Election
Commission had referred over 49 individuals to prosecutors for
suspected voter registration fraud. Of them, 37 were ACORN
employees.
All told, local and state officials called for
investigations of ACORN in about a dozen states, and numerous
parties, including internal ACORN activists, have sought
Federal intervention to investigate the organization. Yet we
have heard little to nothing since the election about the
results of investigations from state or Federal authorities. It
is simply not acceptable to forget these problems because the
result of the presidential elections were not close.
It is also not acceptable to heed the fatalistic argument
that bizarrely defends voter registration fraud as a byproduct
of efforts to increase participation. It is indeed a danger to
our system. The legitimate votes of both minority and non-
minority voters are threatened with vote dilution by those who
fraudulently register and fraudulently cast a ballot.
Now, as we contemplate the possibility that fraudulent
registrations can dilute legitimate votes, our attention
returns to ACORN. Their record from 2008 alone is stunning.
According to The New York Times, of the 1.3 million voters
ACORN claims to have registered, roughly 400,000 were rejected
by election officials for a variety of reasons, including
duplicate registrations, incomplete forms, and fraudulent
submissions.
Now let that sink in for a minute. The American electoral
system was burdened by 400,000 bad forms from just one group.
By contrast, the population of the entire State of Wyoming in
2007 was only slightly larger, at 522,000.
Voter registration fraud is not just a problem for the
system. It causes the types of disenfranchisement that Congress
and this Committee have addressed many times, such as havoc in
the voting lines, long wait times, that drive busy citizens out
of the process. Whether due to human error or fraud, these
factors become barriers to participation.
We need look no further than the most recent election to
see examples of such disenfranchisement. In Bridgeport, CT,
nearly 500 voters, many of whom thought they were registered to
vote by ACORN, were sent to city hall on Election Day after
their names did not appear on voter registration lists. Once
there, they found out they could only vote for President and,
thus, were denied their right to choose representation in
Congress and the other offices on the ballot.
Many have attempted to dismiss such irregularities as the
natural side effects of simple human error often associated
with such large efforts. But, as we have shown, this is a
problem that has persisted in every election for over 10 years,
and recent statements and sworn testimony from ACORN employees
further highlight that the problem is not one of simple error.
Now the size and scope of ACORN's efforts make it one of
the most visible examples of the vulnerability to manipulation
in our system. Now, whether their actions are the result of
fraudulent intent, negligence, or simple incompetence, the
overarching conclusions must be the same: that any system that
enables and continues to allow such behavior is broken and must
be addressed.
While it appears that local and state authorities may have
run out of resources or focus to fully follow the trail of
fraud and address this issue, we are heartened that this
Committee is still looking for answers. It is a certainty that
there will be close elections again in the future, and we must
be prepared to ensure that every proper vote counts.
Thank you very much, and I look forward to answering your
questions and assisting in any way we can.
[The prepared statement of Mr. Terry follows:]
Prepared Statement of James Terry
__________
Mr. Nadler. I thank the gentleman.
And Ms. Wang is recognized for 5 minutes.
TESTIMONY OF TOVA ANDREA WANG, VICE PRESIDENT FOR RESEARCH,
COMMON CAUSE
Ms. Wang. Mr. Chairman, thank you. Thank you for having me
here today.
I am Tova Andrea Wang, and I am vice president of research
at Common Cause, a national, non-partisan organization with 36
state chapters and 400,000 members and supporters.
Thanks to the work of elections officials, voting
advocates, and patriotic citizens, many Americans were able to
easily and effectively cast their ballots in 2008. Yet perhaps
millions of voters faced unacceptable and unnecessary barriers
to voting. I go through the whole myriad of problems and
barriers that people confronted in my written testimony. I will
just focus in on a couple of things here in the short time that
I have.
We recently heard about an analysis by Professor Stephen
Ansolabehere of MIT and Harvard University that millions of
people reported they could not vote in 2008 because of
registration problems. Untold millions of voters registered to
vote but were not on the registration list when they came to
vote and had to cast provisional ballots, legitimate voters
were purged from registration lists, and eligible voters had
their registration forms improperly rejected by elections
officials. Florida and Colorado are just two examples from 2008
in which this type of activity occurred.
And we heard a little bit earlier about Florida and its no-
match, no-vote policy, effectively requiring people to have
exactly the same information on their voter registration form
as that which exists on the other databases. And they would not
process the voter registration forms if there was not this
exact match.
There are many reasons such information might not match
that say nothing about the voter's eligibility or identity. The
voter might use one variation of his name in one database and
another on a voter registration form. This is particularly for
Latinos and Asian Americans and others with unusual names.
Other government databases are incredibly flawed. The person
inputting the information might make a mistake, such as a
simple typo. The voter might make a mistake or have even poor
handwriting.
This rule led to over 22,000 voters having their voter
registration initially blocked in the states.
As of Election Day, some 10,000 of these voters had not
taken the extra, unnecessary step of resubmitting ID in advance
of the election, and their vote may not have been counted.
As usual, rejected voters statewide were disproportionately
minorities. Slightly more than 27 percent were listed as
Hispanic, and 26.8 percent were Black.
In Colorado, on the voter registration form, voters who
provided a Social Security number rather than a driver's
license number also had to check a box that stated, ``I do not
have a Colorado driver's license or a Department of Revenue
identification number.'' If they did not, their registration
was disqualified. This impacted thousands of voters.
Furthermore, Common Cause Colorado and other groups had to
sue the secretary of state for purging thousands of voters from
the registration rolls in clear violation of the National Voter
Registration Act's prohibition on systematic purging within 90
days of an election. A Federal court forced the secretary to
agree to allow the voters who he had improperly purged to vote
via a provisional ballot which would be presumed legitimate
unless proven otherwise.
As a result of these kinds of problems, I suggest that you
amend the Help America Vote Act and ban the practice of
automatically rejecting voter registration applications based
solely on a non-match, as has been discussed, enact and
implement a voter registration modernization.
Another huge problem that has been touched on is long
lines. While we are proud of the historic turnout that we saw
on Election Day, and some Americans had to wait in order to
vote was not just unfortunate, it denied the right to vote, to
cast a ballot for many voters. While in many precincts, voting
took only a matter of minutes, in Detroit, some had to wait in
line for 5 hours. In the St. Louis area, it was 6 hours.
And, once again, the distribution of resources was random
at best and possibly discriminatory at worst. This problem was
widely predicted by voting rights advocates, who warned that
states did not have enough voting machines for the expected
turnout and had no plans in place for ensuring that the
machines available were allocated strategically and fairly.
As a result, I recommend that we demand that states
identify formulas and create plans for allocation of voting
machines that have the best chance of creating an equal playing
field and effective voting process on Election Day.
I want to touch briefly on the issue of caging and
challenges. Every election year for the last 40 or 50 years,
voters, especially minorities, have been threatened with or
actually had their eligibility to vote challenged for no
legitimate reason. 2008 was no different. This is voter
intimidation and vote suppression and must stop.
In addition to passing the Caging Prohibition Act, which we
fully support, it is also crucial that the Department of
Justice reinstate its earlier prioritization of pursuing large-
scale cases of voter suppression, such as this, which was
abandoned several years ago in favor of pursuing isolated
instances of alleged fraud. Investigations and possible legal
action must be given high priority and pursued vigorously by
DOJ in these instances going forward.
I want to touch just also briefly on ID laws. We know from
testimony we have heard about the millions of people that do
not have the requisite kind of voter ID that some states are
now requiring or seeking to require, and we know that tens of
thousands, maybe hundreds of thousands, of people were unable
to vote in the 2008 election because of lack of voter ID.
But perhaps as significant, we also have studies from the
2007 election and the 2008 election that show that poll workers
ask minority voters for identification far more often than
White voters to the point where it is possibly systematic, and
I encourage you to look at my written testimony for more
details on that.
My recommendation is that the United States Department of
Justice should subject any future ID laws to intense scrutiny
during the Voting Rights Act section 5 preclearance process
where it applies and further review their implementation under
section 2 of the Act as a discriminatory voting practice or
procedure.
I see my time is up, so I will just say thank you, Mr.
Chairman, for holding this hearing and giving extremely needed
attention to the ongoing challenges we face in perfecting our
already great democracy. We are making progress, but there is a
great deal of progress yet to be made, and I look forward to
working with you, the Committee, hardworking and dedicated
elections officials, and my fellow citizens in order to get us
there.
Thank you very much.
[The prepared statement of Ms. Wang follows:]
Prepared Statement of Tova Andrea Wang
__________
Mr. Nadler. Thank you.
I now recognize myself to begin the questioning.
Mr. Terry, you testified at length about ACORN, as our
witnesses in the prior panel, and you also say, ``While it
appears that local and state authorities have run out of
resources or focus to fully follow the trail of fraud and
address the issue,'' by which I assume you mean that there has
not been a large number of convictions on this. In other words,
lots of allegations, lots of beginnings in courts, but no or
very few convictions?
Mr. Terry. Well, I think, in fact, you have seen are three
instances, I think in Michigan, at least two other states where
you have seen people indicted or have pled guilty.
Mr. Nadler. I did not ask about indicted.
Mr. Terry. But I think what we have a lot of is the
willingness that when the election is over, sort of the desire
to pursue this goes away.
Mr. Nadler. Okay. So, in other words----
In other words, we do not have a lot of judicial
determinations that what you are alleging is, in fact, true.
Mr. Terry. Correct.
Mr. Nadler. Okay. Now everything you are alleging is
basically against the law.
Mr. Terry. Correct.
Mr. Nadler. Okay. So why are you telling the Committee
this? What should we do about it since it is already against
the law?
Mr. Terry. Well, I think we have heard a variety of
different testimony talking about long lines, havoc, problems
of people being kicked off the voter rolls. I think any
instance where you have 400,000 registrations nationwide that
were submitted that were inaccurate, that is a problem that
deserves exploration to understand----
Mr. Nadler. No, no, no. You made no recommendations. In
other words, deliberately submitting an application you know to
be incorrect is against the law.
Mr. Terry. Correct.
Mr. Nadler. Because you are careless is not against the
law, but you should not do it obviously. Aside from
recommending that local governments enforce the law better or
that somebody does--the Bush administration obviously did not
enforce the law according to you----
Mr. Terry. No.
Mr. Nadler [continuing]. And aside from venting against
someone you do not like, what are you saying in effect?
Mr. Terry. Well, I think you have heard a lot of testimony
and will continue to hear it about the modernization of the
voter registration process, and I think----
Mr. Nadler. Well, we have heard testimony and all those
other things, but specific recommendations about legislation
and actions we can take because many of those things are not
illegal. Arguably, they should be, we should make them illegal,
and so forth. Everything you are talking about is already
illegal.
Mr. Terry. Correct.
Mr. Nadler. And, therefore, what should we do?
Mr. Terry. Well, I think that looking at the fact--I guess
the pattern here is that you do have an ongoing pattern of
illegal behavior that has continued across----
Mr. Nadler. And----
Mr. Terry [continuing]. Election cycles, and----
Mr. Nadler. All right. So your recommendation is that,
obviously, where there is a pattern of illegal activity,
someone should look into it.
Ms. Wang, Mr. Terry described fraudulent registrations to
include incomplete registrations. Is an incomplete registration
fraud?
Ms. Wang. No. Sorry. No, I do not believe it is, and I
think it happens all the time.
Mr. Nadler. And could some of the people he described as
being unable to vote have had their registration rejected on
this basis?
Ms. Wang. They may have, and, as we discussed earlier, they
may not have been notified that their voter registration
application was incomplete and even been given an opportunity
to fix it.
Mr. Nadler. Now are you concerned about people maybe being
disenfranchised for these technical reasons?
Ms. Wang. Absolutely.
Mr. Nadler. And what is your opinion since you have been
looking into all these different things? Do we have a large
problem of voter fraud with ACORN or anybody else, I mean,
deliberately submitting lots of fraudulent or duplicative
applications, 400,000?
Ms. Wang. There is part of me that hesitates to engage any
more of the time of this Committee on the issue of ACORN--as I
said during the election period, ACORN has its problems and I
am not going to deny that, and they submitted registration
forms that should not have been submitted, but the amount of
attention it has gotten and the exaggeration of the claims--it
is all just one big head fake.
I would like to know how many of the people that ACORN
allegedly registered to vote fraudulently actually cast
fraudulent votes. I have not heard since the election of one of
the people that they allege was registered in a fraudulent
manner having actually cast a vote. I would like to spend our
time talking about things that go on that actually impact the
outcome of the election.
Mr. Nadler. Is there any evidence of people voting in two
states or more?
Ms. Wang. There have been a handful of isolated cases over
the last several years. It is very rare.
Mr. Nadler. Okay. Now of the issues you identified, what do
you see as the greatest obstacle to the franchise now?
Ms. Wang. I think----
Mr. Nadler. And also Mr. Shelton and Mr. Magpantay.
Ms. Wang. I think, certainly, we need to rethink the entire
way we do voter registration in this country. I think that Mr.
Terry and others who work on this issue should agree that it
should be not up to third-party organizations to have to go
into communities that are not served otherwise to make sure
they are registered to vote. The government ought to assume a
good portion of that role and do its duty as it does in most
other western countries and take some responsibility for
registering people to vote. I think we need to have a whole new
paradigm shift on the registration process.
Mr. Nadler. Thank you. My time is expired. I will ask Mr.
Shelton and Mr. Magpantay to answer the same question.
Ms. Shelton. I would say a number of things would be very
helpful: requiring guaranteed early voting without excuse--some
places offer it, but you have to give a good excuse, and in
some cases, even a note from you doctor to do it; institute
same-day registration so that you can vote and register on the
same day. It makes good sense. Some people have not decided
until the last minute and, quite frankly, if you find that you
are not registered when you get to the polling place, it is an
opportunity to fix that problem by being able to register right
on site.
Third, we have to outlaw caging as well. This insidious
practice of disqualifying people is extremely problematic and
it very well should not be in place. We have to clarify and
strengthen one of the most important provisions in the Help
America Vote Act, the provisional ballot provision, but, right
now, states interpret that in so many different ways that it is
become nothing more than a placebo in many places.
Go to the polls to vote. Your name is not on the roster.
You say you know you are registered. They give you a
provisional ballot. You should have just gone around the corner
and then get back to the election site. They take a look at it
and say, ``We are throwing it out anyway because even though
you are registered, you went to the wrong polling site.''
Those issues and so many others, I think, would actually
really help fulfill the commitment of our country to make sure
that every eligible American will be able to cast that vote
and, indeed, have it counted.
Mr. Nadler. Thank you.
Mr. Magpantay?
Mr. Magpantay. I agree with my co-panelists. There are very
large things that the Committee and the Congress can do like
universal voter registration that would very much work, but
there are also a couple of very small changes that will have a
tremendous impact on many voters, such as a HAVA update using
provisional ballots to correct voter registration errors and to
register voters for the next election. Some counties in your
state use it, an update, but they do not do it in New York
City. We have some----
Mr. Nadler. I am sorry. What don't they do in New York
City?
Mr. Magpantay. They do not use affidavit ballots,
provisional ballots to correct voter registration errors or to
register voters for the next election.
Here is what happens. Voter comes to vote. Their name is
not there. They were missing. The form was not submitted. It
was keyed in wrong. The voter comes to vote. Their name is not
on the list. You get to vote by provisional ballot or, in New
York, an affidavit ballot. Voter elections has that
information. You are not on the rolls. Your vote does not
count. Voter does not know that. She comes back next year. The
name is not on the list. She votes provisional again. All the
information is there, and President Ford and President Carter
said we should use this to correct voter registrations.
Mr. Nadler. So, in other words, the affidavit ballot or the
provisional ballot, even if you cannot vote that day, should be
a registration for----
Mr. Magpantay. That is correct.
Mr. Nadler. Thank you.
My time is well expired.
I now recognize the distinguished Chairman of the full
Committee, Mr. Conyers.
Mr. Conyers. Thanks, Mr. Shelton. Thanks, Attorney Wang,
Mr. Terry, Mr. Magpantay.
How do we begin? We need to carry on the discussion that
Chairman Nadler raised in terms of how we comprehensively and
effectively approach the issues raised here. I think we need to
go into provisional ballots, same-day voting more.
The reason I still think we need to have a hearing on ACORN
because they have been made the poster child of illegal voting
in America, and we have never had one person representing ACORN
before the Committee. Take today's hearing. That was our
friend's battle cry. I mean, we are here. We are meeting about
an urgent vital national interest and then to bring in the
lawyer that represented someone opposing ACORN, but still that
is all pretty one-sided, and I think in all fairness we ought
to really examine it.
Then the other side of it, is how do we get the Department
of Justice back on track, and, of course, a hearing about
where--ACORN is the third hearing. Then inside DOJ, that is
another story, the civil rights division, the voters section,
not only what we do to make it better, but also what went
wrong.
Now there is nothing more abhorrent than looking back in
the Congress. We do not want to look back on anything, but we
have to, not particularly for crimes, but just for
inefficiencies, and how we build on where we are now. It took
232 years to get to where we are now. So reviewing it should
not hurt anybody's feelings, and that is the way I see it.
What would you add to the direction that I think Chairman
Nadler and we are going to move in?
Ms. Shelton. I think we absolutely need new legislation.
That, indeed, in addition to the issues mentioned earlier, we
have still to talk about issues like the voter intimidation
that clearly occurred over the last election as well, people
being misled and being intimidated to believe if they came to
the polls to vote and they had outstanding parking tickets,
they would be arrested on sight.
We have still to address the issue of what would happen to
ex-felony offenders. Indeed, we are a country of second
chances, and very well those who have paid their debt to
society by spending time in jail, when they are out on the
streets, they should able to vote. It is important. It is part
of them reclaiming their full citizenship and very well also
their responsibilities.
We also need to make sure that we address issues of making
sure we have adequate numbers of voting machines in place.
Thank God for early voting in so many states in this last
election, as we saw what happened with those very long lines
where Americans simply wanted to come out, exercise their
constitutional right, and participate in this process.
We need legislation that will address those issues and
complete the task that was begun by the Help America Vote Act
and, certainly, the reauthorization of the Voting Rights Act.
Mr. Conyers. Mr. Magpantay?
Mr. Magpantay. Mr. Conyers, what we need is greater
enforcement of the Federal Voting Rights Act. AALDEF submitted
a number of complaints to the Justice Department. Every
complaint from the last election, we have to have translated to
local elections officials and to the voting section of the
Department of Justice about the 2008 election. We did the same
work after the presidential primaries, after the 2007
elections, 2006.
I am still waiting for some actions on some of those
patterns. I am still waiting for violations of the Voting
Rights Act in New York, New Jersey, and Virginia to be
adequately addressed. DOJ did do something in Massachusetts and
Michigan. They left. There is nothing there. But there are
still problems that we found in those elections.
And I do want to note that this issue is not a partisan
issue. We have had problems with Democratic campaign workers
and Republican campaign workers. There are instances in which
new Americans, new citizens of the United States, want to vote,
and they are disenfranchised, and so to the extent that the
Committee could in its oversight work, work with the Department
of Justice to make sure that they fully enforce the
Constitution of the United States and the Voting Rights Act,
that would help a tremendous amount.
Mr. Conyers. Mr. Chairman, may I have enough time to have
responses from the two other witnesses?
Mr. Nadler. Without objection.
Mr. Terry. Thank you, sir.
Well, you know, we have heard a lot of conversation about
voter registration modernization, and I think that the goal of
increasing participation is certainly noble, but I think what
happens sometimes is the conversation tends to drift toward
increasing participation at the expense of security, and I
think that the objective should be to increase participation
and security simultaneously----
Mr. Conyers. Well, when you say security, what are we
talking about?
Mr. Terry. Well, I mean, ensuring that the votes that are
cast are legal or proper, that, you know, fraudulent votes are
not being cast, and there is a lot of conversation around the
negative impacts of ID laws on disadvantaged citizens, and I
think that if that is the case, then that negative impact needs
to be addressed.
But I think the direction I would encourage is to go in the
direction of not us having a more lax, less secure system in
order to resolve those injuries. Let's figure out how to help
them get the ID that they need to get to fix the other end of
the equation to enable to increase participation, give
everybody the rights, but yet maintain a secure system.
Ms. Wang. Well, first of all, I am wondering where the
actual voter fraud at the polling place is that would be
addressed by a voter ID or the other types of remedies that Mr.
Terry and others seek to promote throughout the states. There
is no evidence of in-person voter fraud on any kind of large
scale in this country. I think that we saw that most
particularly during the U.S. attorneys' scandal where we know
that U.S. attorneys were under tremendous pressure to seek out
these kinds of instances and did not.
And I just will reemphasize my points about the importance
of doing something about caging and challenges. This has been
going on since the 1950's. I think it is abhorrent, and I think
that we need to enact legislation that outlaws it and make sure
that that is enforced.
And with respect to more about the ID laws, I will just
take this opportunity to cite a Harvard survey of thousands of
voters in the 2008 Super Tuesday primary that found that 53
percent of Whites were asked for photo ID compared with 58
percent of Hispanics and 73 percent of African-Americans. Voter
ID is, as has been said so many times, a solution in search of
a problem and leads to all sorts of discriminatory and
disenfranchising impacts.
Mr. Conyers. But what can we do about it? I mean, those are
state laws.
Ms. Wang. I think that the discriminatory implementation of
those laws should be one of the things that the Department of
Justice should be looking into it.
Mr. Magpantay. Agreed, agreed. They have the enforcement
powers. They are charged with enforcing HAVA. This body passed
HAVA. It should not be applied in an inappropriate or racially
discriminatory way.
Ms. Wang. And the----
Mr. Magpantay. We think something can be done.
Ms. Wang. And I am not aware of any cases that they have
brought even though we know over the last several years there
has been what could possibly at least be a systematically
discriminatory implementation of the voter ID laws.
Mr. Nadler. Thank you.
That concludes this----
Oh, I am sorry. I did not see Ms. Jackson Lee. I now
recognize for 5 minutes the distinguished gentlewoman from
Texas.
Ms. Jackson Lee. Thank you, Mr. Chairman very much, and I
thank you for the indulgence of the witnesses and to each and
every one of you always a champion of what I think is
enormously precious rights and the disappointing aspect of that
is how little our local officials, state officials appreciate
the preciousness of this right.
Let me quickly just say that we had an exciting time in the
election in 2008, and I think everyone had a chance to express
their views, but why in our communities--Hispanic, Asian,
elderly, African-American, poor neighborhoods--again, in Ohio,
wrong date for coming out to vote sent around, the wrong
locations for sending around.
In the early vote process in the 18th congressional
district, the district of Barbara Jordan and Mickey Leland--and
now I hold it--going around where machines failed, lights went
out, voting officers did not understand the law. They sent
people away frustrated, and, if you will, inexperienced voters
were intimidated by not having what they said was the
information that they needed because, obviously, in early vote,
you know you are not at your precinct. You are in some general
place where you can go. But these are the horror stories that
happened on a day that should have been jubilant, whether you
were voting for the Republican candidate for President, for the
Democratic candidate, because it was so intense, so exciting.
So I lay that groundwork to let everyone know that our work
is not yet finished, and I am going to get these three points
and ask you about whether we should nationalize this issue.
Frankly, we should nationalize the crisis of voter ID. It
is beginning to be a plague across America. Each state, because
it is state law, is moving slowly but surely to make this a
national, if you will, epidemic of undermining votes, and so I
want your thoughts. You did say the Justice Department, but we
need to raise this, maybe amending some of our election laws in
terms of its discriminatory aspects.
In the State of Texas, the state legislature has a rule
that redistricting and voting rights bill, Hilary, need a two-
third vote. They removed that provision to vote on
redistricting and the voter ID. That sounds to me like we have
a crux of an issue. So I throw out the idea of nationalizing
the issue on voter ID legislation as a general premise of
looking or having legislation that says that it must be
vetted--and I use the term ``vetted''--but precleared on the
possibility of its discriminatory impact and maybe on voter
rights. Maybe that is the first step.
The second is if you would comment on the thoughts of voter
registration modernization dealing with this whole idea of how
people get purged and the idea of the massive purging that goes
on particularly in poor neighborhoods, and when I say poor
neighborhoods, poor people of color, of new citizens, that is
one of the tactics that is used by local governments to get
people off the rolls or not voting. There is something that
needs to be done about purging.
My last quick point is--I asked this question before--
provisional balloting. I know the remedy is supposed to be
good, but when we have glaring examples of the election officer
throwing the ballots out--I will not say the quotes again. I
read them into the record--where they were using white-out in
Harris County before the ballots commission was able to review
this, so you are whiting out something on someone else's
ballot--as far as I am concerned, either the person needs to
be--what are you tampering with that person's ballot after they
have exercised their right to vote.
So I leave you with those three points, if you would answer
the voter ID, nationalize it, looking at some way to amend
national legislation on that, the voter modification--excuse
me--registration modernization, and this whole idea of purging.
Ms. Shelton. I would start out by saying we strongly agree
with you very well. If we look at how photo IDs have been
utilized in such a discriminatory manner and if we look at even
who has photo IDs, there is an assumption in our society that
most Americans have them, and, quite frankly, they do not.
Ms. Jackson Lee. They do not.
Ms. Shelton. A good example is if you look at what happened
after Hurricane Katrina when they told people to evacuate, the
assumption was people had cars, which meant they had driver's
license. The assumption is most people have photo IDs with
driver's license and so forth. But if you simply look at in New
Orleans the number of Americans that were left in the Superdome
and at the Convention Center, those are people that did not own
cars, did not have driver's license, did not have photo IDs.
That is a good example just for that place, but it happens
everywhere. It is a poll tax because you have to pay for that
photo ID, whether it is your driver's license or just a state-
issued identification card.
Secondly, so, certainly, the Federal Government needs to
become actively involved because there is such a hodgepodge of
how those policies are being implemented throughout the
country. We need some standardization, some nationalization,
quite frankly.
On the second issue of voters paying--I think the question
was paying--I may have----
Ms. Jackson Lee. Voter registration modernization.
Ms. Shelton. Oh, yes, indeed. And, indeed, we need to
address that issue right here in Washington as well. With,
again, the hodgepodge going on across the country, it is going
to be important that we have the kind of hearings to focus in
on these issues to make sure we take out the concepts and
issues of partisan politics and address real issues of our
democracy, not a Democratic democracy, not a Republican
democracy, but American democracy.
And, finally, throwing out provisional ballots is something
that we have to talk about in a very serious away. When we went
through the process here under the leadership of Chairman
Conyers, and we passed the Help America Vote Act, and Chairman
Nadler as well, we knew very well that there were some issues
around how people were being excluded at the polls. They would
go. They knew they registered. They would not be able to vote.
The intent of the Congress is not being carried out in many
states when it comes to provisional ballots. The intent of the
Congress was if we know you are registered, go ahead and fill
out the form. Send it back. If we find that you are, count
everything that would apply.
So, if you a happened to be at the wrong polling site, you
are still voting for everything, a ballot. You are voting for
everything from the mayor to the governor to your
representative in Congress and your senator and, certainly, the
President and Vice President of the United States. If you are
casting those votes with provisional ballots, they should be
counted regardless of where you cast that vote in that state.
Mr. Magpantay. Ms. Jackson Lee, it is a pleasure to appear
before you again, and we are really proud to work in Houston
this past election and found problems in the election.
Obviously, we want to work together to try to reform that
process.
Again, with just the voter ID issue, in Texas, all voters
must show identification, but we found racially discriminatory
application. South Asian voters were racially profiled and had
to provide additional forms of identification. That should not
be happening to any racial ethnic minority group.
And in Texas, you are allowed to sign an affidavit. We need
to fix these laws, and AALDEF is very happy and looking forward
to working with the Committee to make this happen.
Mr. Nadler. Thank you.
The time of the gentlelady has expired.
I want to thank the witnesses for their patience
especially.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as they can so that their answers may be
made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
With that and with the thanks of the Chair, this hearing is
adjourned.
[Whereupon, at 1:15 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record