[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                 LESSONS LEARNED FROM THE 2008 ELECTION

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

                                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

                              ----------                              

                             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.
---------------------------------------------------------------------------
    *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
---------------------------------------------------------------------------
                          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*
---------------------------------------------------------------------------
    *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








                                











                                
















                                



                                





                                








                                









                                





                                

















                                

















                                













                                



















































                                









                                










                                























                                 
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