[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
EXAMINING UNIFORMITY IN ELECTION STANDARDS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ELECTIONS
OF THE
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
HELD IN WASHINGTON, DC, JULY 15, 2009
__________
Printed for the use of the Committee on House Administration
Available on the Internet:
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COMMITTEE ON HOUSE ADMINISTRATION
ROBERT A. BRADY, Pennsylvania, Chairman
ZOE LOFGREN, California DANIEL E. LUNGREN, California
Vice-Chairwoman Ranking Minority Member
MICHAEL E. CAPUANO, Massachusetts KEVIN McCARTHY, California
CHARLES A. GONZALEZ, Texas GREGG HARPER, Mississippi
SUSAN A. DAVIS, California
ARTUR DAVIS, Alabama
Professional Staff
S. Elizabeth Birnbaum, Staff Director
Victor Arnold-Bik, Minority Staff Director
EXAMINING UNIFORMITY IN ELECTION STANDARDS
----------
WEDNESDAY, JULY 15, 2009
House of Representatives,
Subcommittee on Elections,
Committee on House Administration,
Washington, DC.
The subcommittee met, pursuant to call, at 2 p.m., in room
1310, Longworth House Office Building, Hon. Zoe Lofgren
(chairwoman of the subcommittee) presiding.
Present: Representatives Lofgren, Gonzalez, Davis of
California, Davis of Alabama, McCarthy and Harper.
Staff Present: Jamie Fleet, Staff Director; Tom Hicks,
Senior Election Counsel; Janelle Hu, Election Counsel; Jennifer
Daehn, Election Counsel; Matt Pinkus, Professional Staff/
Parliamentarian; Kyle Anderson, Press Director; Kristin
McCowan, Chief Legislative Clerk; Daniel Favarulo, Legislative
Assistant, Elections; Joe Wallace, Legislative Clerk; Peter
Schalestock, Minority Counsel; Karin Moore, Minority
Legislative Counsel; and Salley Collins, Minority Press
Secretary.
Ms. Lofgren. Good afternoon, and welcome to the Committee
on House Administration's Subcommittee on Elections. Our
hearing is on Examining the Uniformity in Election Standards.
Now, the purpose of today's hearing is to explore uniform
standards in the administration of elections, primarily in
three areas: pollworker training, provisional balloting, and
emergency paper ballots. I note that it was the subcommittee's
intention to invite stakeholders interested in creating uniform
standards for overseas absentee voting, but the Uniform Law
Commission is hosting a convention on the same date as our
hearing to discuss this very same issue. And so the witnesses
were not available and hopefully we will get back to that
subject at a future date.
The American election system, as we know, is not uniform.
There are various local, State as well as Federal election laws
and policies. Now, we are not questioning that the
responsibility to administer elections rests with the State and
locals. However, this has led to inconsistency and inequality
in the voting process in some cases.
We explored in hearings in the 110th Congress the fact that
pollworkers play an absolutely key role in administering
elections. The Federal elections require over 2 million
pollworkers, but often training is left to local jurisdictions
with little guidance, requirements, and, importantly, funding.
There are currently no Federal requirements related to
pollworker training, and less than half the States have
developed uniform training materials. This ad hoc approach to
training can result in deficiencies.
The next area we will hear about today is provisional
ballots. Now, under HAVA, these ballots were supposed to
provide voters whose eligibility could not be determined at the
polling place on election day an opportunity to nevertheless
vote on that election day. Unfortunately, provisional ballots
are administered very differently in each State and even within
the States. And this lack of uniformity could create unfair
disparities, creating opportunities even for partisanship in
tallying ballots or contributing to confusion among pollworkers
or among voters and disenfranchising, in some cases, eligible
voters.
Finally, we will address voting equipment allocation and
the issuance of emergency paper ballot standards. In most
States allocation of voting equipment is largely determined by
local election officials. There is oftentimes little or no
allocation plan for polling places, and that can result in
polls being ill-prepared and voters experiencing long lines.
Directly related to this is the need to supply jurisdictions
with emergency and backup paper ballots for when voting
equipment breaks down.
Now, in all of these matters the question comes down to:
Should the Federal Government develop uniform standards to
ensure that an equal and fair voting process occurs everywhere
in the United States? And if the answer is yes, what form
should the standards take and should they be mandatory or
voluntary? And what funding is required to ensure compliance
with consistencies in these standards?
I look forward to our witnesses addressing these issues
today, and I appreciate that they have, all four, come to lend
their expertise and guidance.
[The statement of Ms. Lofgren follows:]
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Ms. Lofgren. And now I would turn to Mr. Harper for any
opening statement that he may have, and we will certainly give
Mr. McCarthy an opportunity when he arrives.
Mr. Harper. I want to thank the Chair for calling today's
hearing. As we address the application of election procedure
today, I hope that we will approach this issue not in terms of
federally required standards, but how to make the various
standard election procedures as effective as possible.
It is important to recognize from the outset that a great
strength of this Nation is the diversity of its States. States
have different election cultures, histories and practices. The
States know best which policies will be most effective in their
unique circumstances. Allowing States the flexibility to meet
their specific needs provides an environment for innovation in
the operation of elections.
It would be shortsighted of this body to presume that the
Federal Government can best direct that process by imposing the
same rules for each State. However, with that deference, I mean
to be clear that election procedures, once established, should
be applied consistently statewide.
Recent history offers two case studies where inconsistent
application led to challenged outcomes. The 2004 Governor's
election in Washington and the 2008 U.S. Senator's election in
Minnesota.
We have seen the adaptability and success of our current
system in bringing more people into the voting process. The Pew
Research Center, in a report published April 30, 2009, observed
that the electorate in last year's Presidential election was
the most racially and ethnically diverse in U.S. history.
As we receive the testimonies of our witnesses, I urge my
colleagues to approach the issue with a view to ways we can
incentivize the States to make election procedures simpler and
more accessible to the voter. At the same time, we must not
implement mandates that may restrict States' abilities to
install necessary safeguards against voter fraud.
With that, I want to thank each of you for being here. We
look forward to receiving your testimony today. Thank you very
much.
Ms. Lofgren. Thank you, Mr. Harper.
[The information follows:]
[COMMITTEE INSERT]
[The statement of Mr. McCarthy follows:]
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Ms. Lofgren. And unless the gentlelady from California has
an opening statement?
Mr. Harper. Madam Chair, if I may, I have two articles I
would like to submit for the record. One pertains to the 2004
Governor's election in Washington, and one about the 2008
Senate race in Minnesota.
Ms. Lofgren. Those will be made a part of the record, by
unanimous consent.
[The information follows:]
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Ms. Lofgren. And since we are doing that, I would like to
note also that, by unanimous consent, I would ask that the
following documents be made part of this hearing: a statement
from the Federation of American Women's Club Overseas; a
statement from the Pew Center on the States; the Pew Report on
Provisional Voting; and the Pew Data for Democracy Report.
[The information follows:]
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Ms. Lofgren. I would like now to introduce our witnesses.
We will make your full written statement part of this hearing
record. And we ask that your testimony consume about 5 minutes
so we will have an opportunity to ask questions at the
conclusion. There is a little machine sitting there on the
front. And there will be a green light. And when it turns
yellow it means you have a minute left. And when it turns red,
it means--this is always surprising to people, they have
actually spoken for 5 minutes. And we won't cut you off mid-
sentence, but we would ask you to try and wrap up at that point
so that everybody can be heard.
I would like to introduce the Honorable Mary Herrera. Ms.
Herrera currently serves as New Mexico's Secretary of State,
where she has been the Chief Election Administrator since her
election in 2006. Prior to that she served as Bernalillo County
Clerk. She is active in many organizations, including serving
as the president of the National Association of Latino Elected
and Appointed Officials, as well as being a member of the EAC
Standards Board.
We also have the Honorable Ron Thornburgh. He currently
serves as Secretary of State of Kansas. He has held that
position since 1994. He is the former president of the National
Association of Secretaries of States and is an active member of
the EAC Standards Board.
Ms. Freddie Oakley currently serves as the County Clerk
Recorder for Yolo County in California. In 2005 she was Chair
of the California Secretary of State's Task Force on Uniform
Pollworker Standards.
And finally we have the Reverend Edward A. Hailes, Jr.
Reverend Hailes currently serves as managing director and
general counsel for Advancement Project, a policy and legal
action group. Prior to his work with the Advancement Project
Mr. Hailes was general counsel for the U.S. Commission on Civil
Rights, and legal counsel for NAACP.
So welcome to all of you.
STATEMENTS OF HON. MARY HERRERA, SECRETARY OF STATE, NEW
MEXICO; HON. RON THORNBURGH, SECRETARY OF STATE, KANSAS;
FREDDIE OAKLEY, YOLO COUNTY CLERK-RECORDER, CALIFORNIA; AND
EDWARD A. HAILES, JR., MANAGING DIRECTOR AND GENERAL COUNSEL,
ADVANCEMENT PROJECT
Ms. Lofgren. And we will begin with you Ms. Herrera.
STATEMENT OF HON. MARY HERRERA
Ms. Herrera. Thank you, Madam Chairwoman Lofgren. It is a
pleasure to be here this afternoon. I am honored to be here to
speak to you on elections.
Prior to becoming county clerk, I worked elections for
probably 25 years before that. I held positions as a voting
machine technician, I was a pollworker, I worked on the
absentee board, I have worked as a radio dispatcher, taking off
for election day and fulfilling those duties. I have seen
elections progress through all of these years of being involved
in the election process.
I am very proud to announce that New Mexico did set
standards for provisional ballots this last election and we did
have a great election. It was actually recorded as one of the
best elections in a long time in history. It was the largest
turnout ever. The standards did help within the 33 counties in
the State of New Mexico. It was actually implemented after the
Bush and Gore election in 2000. After enacting the provisional
voting in the Help America Vote Act, Section 302, the Office of
Secretary of State, we developed the uniform standards for many
of the processes during that election. This included providing
uniform standards for provisional voting.
Certain areas of the State were not uniformly canvassing
the ballots issued for provisional voters, so we issued
standards and rules for securing the secrecy of provisional
paper ballots, especially during canvassing; reviewing,
recounting, and protecting against fraud in the voting process.
Most of the clerks supported the uniform standards. The
change gave them clear concise rules with respect to the
processing and canvassing of provisional voting. The
administrative rule specifies how the tally of the ballots
should be accomplished and the system was definitely improved.
Also--and I will be open for more questions. I also would like
to request, I did bring a handout with all of the rules and the
procedures and the laws of the State of New Mexico, and I ask
that I can enter that.
Ms. Lofgren. By unanimous consent, we will make that part
of the record. Thank you for doing that.
[The information follows:]
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Ms. Herrera. Thank you. Thank you very much.
Pollworker training. This year I was instrumental, with the
help of the Governor of the State of New Mexico, to receive
some extra funding. We helped pollworker training for all the
pollworkers. The manuals were produced at the Secretary of
State level and issued to all 33 county clerks. And we did go
out and do an extra pollworker training with the funding that
we received through the Governor's help.
What we did was, there wasn't enough funding to train all
pollworkers, but we did train the presiding judges and we went
into the issues that were causing some of the confusion and
delays: opening and closing of the polls; what is a provisional
ballot? That is where I believe it ran a lot more smoother,
because the pollworkers were more aware of what a provisional
ballot is; when do I issue a provisional ballot; why do I issue
a provisional ballot.
There was a lot of confusion when provisional ballots first
came into law, and that really helped this last election. The
number actually went down on provisional ballots that were
issued out at the early voting sites, absentee and election
day. I really was glad that extra training was available.
I want to speak about funding at this point. I am going to
make it very clear there are so many issues in areas that we
can improve in the election process, but the funding isn't
always there. I have to commend all of the county clerks in the
State of New Mexico. They do a great, great job with a limited
amount of funding. It is just not there. They work hard and
they do a great job; but the funding, we have to keep that in
mind.
There are a lot of demands. Basically every single county
clerk and Secretary of State, we want to do a good job. We do
not want to disenfranchise the voters. That is why we take
these positions. We want to be the best for the citizens. But
funding, I just needed to throw that in because that is always
a factor.
When we attend the National Association of Secretaries of
States, that seems to be everyone's issue throughout every
State.
Military and overseas voting. During the 2008 election New
Mexico partnered up with the Federal Voting Assistance Program.
We set up a link on our Web site that gave voters information
through FVAP. Partnering with them, we implemented the voter
registration ballot delivery tool, providing military and
overseas voters an easier way to register to vote, and request
and receive absentee ballots without sacrificing the secrecy of
the voter's identity.
The tool, Web-based application, it simplified the process
for the uniformed service members and their families, as well
as the United States residents residing overseas, and completed
the voter registration and absentee ballot request form. We
issued guides to citizens through completion according to New
Mexico-specific requirements. We provided the opportunity to
further assist the citizens by allowing local election
officials to send a blank ballot for those citizens to transmit
their completed form to a local election office via a secure
server.
I really commend the Voting Assistance Program for having
that tool available to all of the States, and I believe we had
more voters vote through that system. It was just a real, real
great success.
Back to provisional ballots, because that is the one I am
very, very proud about. When I was county clerk for the largest
county in the State of New Mexico, two-thirds of the votes of
the State of New Mexico, that was the first year we had
provisional ballots, and there were no rules. We didn't really
understand them. It was quick. It was right after the HAVA
requirements. And we were trying to process them.
In my county alone, we had close to 9,000 provisional
ballots. Probably by the time we ended up qualifying them and
counting them, there were probably about 4,600 that were valid
ballots. That was great that they were available. But we did
experience that. That is why it was important for our State to
issue standards on counting and canvassing.
Also, I can recall as county clerk, they would argue
because we had a very close high-profile race in the State of
New Mexico. Every party, both parties, all parties, were
fighting for one particular ballot. It was taking hours and
hours because there was no Voter intent. This year also in the
State of New Mexico, we have a ballot intent, examples that we
issued out to the boards as they count these votes. That cut
down all of the confusion and argument about what constitutes a
vote.
That was what we passed, and they no longer could stand
there and argue for hours and hours. We have ten days to
canvas, so that was a very important factor for the State of
New Mexico that we process and get these results, especially
these high-profile races, the press and the public, and the
public are angry with the election officials because they do
not understand that we have all of these requirements and laws
that we have to abide to. That really, really helped.
Ms. Lofgren. Thank you so much.
Ms. Herrera. Thank you.
[The information follows:]
[COMMITTEE INSERT]
Ms. Lofgren. Mr. Thornburgh, we would love to hear from
you.
STATEMENT OF HON. RON THORNBURGH
Mr. Thornburgh. Thank you so much, Madam Chairwoman. My
name is Ron Thornburgh, Secretary of State for the State of
Kansas, and it is an honor to appear before the committee once
again.
The last time I had the opportunity to appear before the
committee was in 2001, 2002, as we were developing the Help
America Vote Act. And as you recall during that time, many
questions were raised in our country as to the technical
prowess of our system and whether the system worked or not. And
I appear before you today and say that I believe that HAVA and
the work that was created in HAVA is some of the most
significant election law in a number of generations in the
United States because of the framework.
And I want to talk about that broader issue of the
framework today, if I might, Madam Chairwoman. HAVA did a
number of things.
Number one, it guaranteed every American the right to an
independent and secret ballot for the first time in our
history, and I think that is extraordinary.
Secondly, it infused technology into a system that was
vastly too reliant upon Big Chief tablet and number 2 pencils,
and we were able to infuse that technology. But most
importantly, I think HAVA developed and maintained an
appropriate role in Federal and State relationships. And that
was really what drove so much of the response of what we were
trying to do.
The point of emphasis during that discussion--and I hope
will continue with the committee--remain today. And that is
that equal protection and opportunity for every voter; that any
uniform standard must be driven to the outcome and not to the
process, so that we can maintain State and local innovation and
ability; that the system must be designed not for election
administrators, not for political parties, not even for
candidates, the system must be designed to protect the voter
and provide those opportunities for the voter. And lastly, we
must do everything we can to maintain a clean and accurate
voter registration list.
If we look back to HAVA and what I choose to use as a
model, the most effective elements of HAVA respected the roles
of the Federal, State and local partners.
Using my State of Kansas as an example, we used the HAVA
resources to create the required statewide voter registration
database, as I believe every other State has done as well. We
have been able to take that voter registration database, and
now, through memorandums of understanding with other States, we
created partnerships with 11 other States, that we can now
share databases with our other States to find places where
perhaps a person moved from one State to another. And we can
keep our lists cleaner. That was not something that was
designed through the Federal legislation, but through
innovation we have been able to do that.
We have been able to create online voter registration,
again, not required by HAVA, but it is certainly an outcome
that I think everyone would want to see.
E-motor voter. When a person registers to vote at the
Division of Motor Vehicles, there is an electronic transaction
that automatically updates their voter registration information
as well as their driver's license information.
All of these elements came about because we had the
flexibility and the freedom to try to move forward in an
aggressive way. I believe that we have that opportunity today.
In the one case--and certainly no disrespect to my friends at
the EAC or at NIST--but in the one case where the Federal
Government maintained all control was in voting machine
certification. And it was removed from almost a voluntary
process through the National Association of State Election
Directors to our Federal partners. And in that case it took 7
years.
Now, certainly there were extraordinary difficulties to
overcome, and I understand what a mess it was. But in the one
case where we had Federal oversight, for lack of a better term,
the system just simply did not work as well as when the States
and localities were given the reins to try to move forward as
aggressively as we could.
I would ask that as you consider legislation, that we allow
all entities to play to their strengths. In my personal
opinion, I think that our Federal partners certainly have an
obligation toward a broad framework, incentives. And I wouldn't
be from a State if I didn't ask for funding while I was here as
well. I fully understand my role in that. But that Federal
funding has meant that we have had the opportunity to do things
we simply did not have the chance to do before.
The work that we have accomplished in the Kansas Secretary
of State's Office could not have been done without the Help
America Vote Act. However, the work we have done in the State
of Kansas also could not have been done with a Help America
Vote Act that was driven through Federal standards rather than
State opportunity.
I appreciate the chance to appear before you today and I
look forward to answering your questions.
Ms. Lofgren. Thank you very much.
[The statement of Mr. Thornburgh follows:]
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Ms. Lofgren. And now we will hear from Ms. Oakley.
STATEMENT OF FREDDIE OAKLEY
Ms. Oakley. Thank you, Madam Chair and members. I am
Freddie Oakley, the elected clerk recorder for Yolo County,
California. Yolo County is a medium-sized county. We are right
across the river from the State capitol, and we are the home of
University of California/Davis, which has been a tremendous
resource for me as county clerk.
Thank you for the opportunity to testify today on behalf of
the pollworker training standards. It is a subject on which I
have some expertise, having chaired the Secretary of State's
2005 task force and having personally trained thousands of
pollworkers during my career.
The first issue that I would like to address is the
foundational one to all others concerning pollworkers, and that
is who are they. Well, the answer is that they are a broad
spectrum of Americans. And they run the gamut from highly
compassionate and helpful to mean and bossy people.
Pollworker training is absolutely necessary, in my view, to
establish boundaries and limits on their discretionary
authority. In California we emphasize in our best practices
that pollworkers must be oriented to this underlying and
overarching philosophy.
Ms. Lofgren. Ms. Oakley, can you see if your microphone is
on?
Ms. Oakley. Silly me.
Ms. Lofgren. Thank you so much.
Ms. Oakley. In California we emphasize in our best
practices that pollworkers must be oriented to the underlying
and overarching philosophy of election administration, which is
first and foremost. We are here to help people vote and to
protect their ballots.
Second, we will help every potential voter who enters our
polling place regardless of physical and mental abilities,
race, religion, language or shoe size. In short, we have to get
pollworkers to believe that they are not cops, they are more
like nurses. And their first thought should be, how can I help
you? This is, incidentally, one reason that California has
developed a system to verify voter identity in the office
rather than at the polls. We want absolutely to have uniform
application of voter ID laws. And we believe that if it is left
to pollworkers, who are essentially volunteers who are trained
for an hour or two and who work a couple of times a year, we
will not get that uniform application.
The question arises: What should we be teaching
pollworkers? Well, first we need to orient them to the rights
of voters, the requirement to be helpful and the requirement to
respect and assist voters with disabilities, different
languages and different cultures.
We should also orient pollworkers to their election day
duties and how to carry them out. And we must orient them to
the requirements for polling place setup, poll opening as well
as poll closing, ballot security, accounting tasks, and how to
deliver securely the ballots. This is far too much for one
class.
So what we really need to do is to strongly instruct
pollworkers on the limits of their authority and the
requirement to be helpful, and then to teach them about the
many resources that we provide for them on election day. We try
to do all the work up front for them so that they have
laminated cheat sheets, they have check-off lists, they have
booklets to follow as they open and close the polls. And the
effect of this is that we can concentrate in training on the
more complex intellectual matters, and we can leave the nuts
and bolts to our extremely well-designed resource materials.
In California we recommend, and in my county we require, at
least 1 hour of hands-on practice on the voting system itself.
Most voting systems now depend on complex and finely tuned
computer systems and there is no adequate substitute for hands-
on experience.
This hands-on training during which pollworkers practice
setting up, using, and taking down the voting system, also
provides a critical opportunity for my staff, or our staffs, to
meet returning and, more importantly, new pollworkers. We get
to assess their strengths and weaknesses and to reinforce our
underlying and overarching philosophy of helpfulness. And
during training, hands-on training, we are also able to remind
pollworkers that they are not cops; that they should use
provisional ballots, which are their personal get-out-of-jail-
free cards--if they will use provisionals we will make the
tough decisions for them--and to remind them to call
troubleshooters when they need them.
The question arises: Should pollworker training be
standardized? Well, I believe it should. In California our
absolutely wonderful Secretary of State, Debra Bowen, is well
on the way to instituting most of the uniform standards
recommended by the 2005 task force. We would hope that she also
institutes adequate funding for counties to comply with those
requirements.
Our expectation is that the application of these uniform
requirements and standards will help us approach real equal
opportunity for voters, which they deserve and have a right to
demand. My personal belief is that national standards would
extend the principle of equality even more broadly and I
believe that is a good thing. Thank you.
Ms. Lofgren. Thank you very much.
[The statement of Ms. Oakley follows:]
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Ms. Lofgren. And finally we turn to you, Reverend Hailes.
We would love to hear from you.
STATEMENT OF EDWARD A. HAILES, JR.
Mr. Hailes. Thank you very much, Chairwoman, and members of
this committee. Certainly it is my honor to present this
testimony on behalf of Advancement Project.
Ms. Lofgren. Could you please turn your mike on? There is a
little button there.
Mr. Hailes. All right. Is that better? Fantastic.
Again, on behalf of Advancement Project, we thank you for
this opportunity to present a focus on specific issues within
the context of election administration. There are many areas of
election administration where we believe uniform standards
would be helpful.
Today, my testimony will focus on emergency ballots and
provisional ballots. For nearly 10 years, Advancement Project
has worked on the ground with a number of voters and groups
that support voters. We have examined disparities and
irregularities in the administration of election procedures in
the course of helping voters when they need help the most. We
are plainly concerned with the lack of uniformity across the
Nation. We are more familiar with particular States, but we do
know that geography makes a difference in whether voters will
have their rights protected or violated. In the absence of an
unequivocal, explicit, affirmative right to vote in the United
States Constitution, voters are subject to the 13,000 separate
voting systems across the Nation that interpret and apply laws
differently. Without uniform standards we find that some voters
are treated differently, and unfairly particularly voters of
color in historically disenfranchised communities.
Again, because I want to focus on emergency ballots and
provisional ballots, I will just take for one example the State
of Pennsylvania and its administration of emergency ballots in
the 2008 elections. I am joined today by my colleague Kathy
Boockvar who is a senior attorney with Advancement Project in
Pennsylvania, and her dutiful work, along with a number of
coalition partners, really put a spotlight on a system that did
not provide emergency ballots in cases where a number of voting
machines had broken down during the primary. The groups came
together, did an analysis, pointed out the real problem of
waiting for 100 percent of all voting machines to be broken
down--before emergency ballots were provided, and made specific
recommendations to the Department of State. Those
recommendations including directions and proposed uniform rules
included making certain that emergency paper ballots must be
offered immediately to voters as soon as at least half of the
voting machines in a precinct were not functioning, they
pointed out that emergency paper ballots must be clearly
distinguished from provisional and other ballots; i.e., that
emergency paper ballots must be treated as regular, not
provisional ballots. They should be paper ballots, and no
qualified regular voter who votes by emergency ballot should be
subject to any requirement associated with provisional ballots,
which I will talk about in just a minute. And then, consistent
with Ms. Oakley's point about pollworker training, all
pollworkers must be properly trained about these distinctions
and requirements.
Secretary of State Cortes took steps in the right direction
in response to these urgent requests following the primaries,
but he did not go far enough. A lawsuit was filed. And on
October 29th, less than a week before the general election, the
court granted plaintiff's motion for preliminary injunction on
the ground that the delay associated with waiting to vote in a
precinct where 50 percent or more of the voting machines were
inoperable could unduly burden voting rights, in violation of
the Federal equal protection clause.
And subsequent to the election, the court issued a
permanent injunction requiring that emergency ballots be
distributed as soon as half of the voting machines in a
precinct fail. That is as a result of litigation; that is as a
result of aggressive advocacy. This emergency ballot rule does
not exist in every State.
Similarly, in Virginia, there was a strong need for
emergency ballots. An analysis was conducted by Advancement
Project, working with other groups, that point out that there
was a simple misallocation of polling-place resources--from
pollworkers to machines--by precinct, which resulted in what we
call a time tax where certain voters in specific precincts were
required to--to stand in longer polling place lines than
others. So that time tax can only be eliminated with uniform
standards related to polling-place resources.
Provisional ballots. We need to amend HAVA. HAVA must be
amended to ensure that people voting in the so-called wrong
precinct are actually allowed to have their ballots counted for
all of the officials for which they are eligible to vote. Thank
you very much.
Ms. Lofgren. Thank you very much.
[The statement of Mr. Hailes follows:]
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Ms. Lofgren. And thanks to all of our witnesses for useful
testimony.
Now is the time when we will have a chance to ask some of
our questions, and I would like to give the first opportunity
to question to our Ranking Member, Mr. McCarthy.
Mr. McCarthy. Thank you very much, Madam Chair. And thank
you to all the witnesses today. I appreciate the testimony.
If I can just quickly follow up on your last testimony. So
I am looking at nationwide data table--and you alluded to that
on calls to election protection hotline 2008. And I went down
to Pennsylvania, and they keep the data of why people call. The
number one reason people call is because they want to know
where their polling place is, 1,600.
The next one is about registration, 1,300. The next one is
polling place again. It is a polling place problem and
registration problem. By high numbers. I only see here--those
are 400 and 411--177 called about equipment problems. But you
were relating to a lawsuit that you sued, and there were a lot
of equipment problems, but I don't see the correlation to the
data of the phone calls that were made.
Mr. Hailes. By the calls--you are making a determination by
the number of calls?
Mr. McCarthy. If I had a problem and I was calling and I
didn't have equipment, I would call about the equipment.
Mr. Hailes. Some people call the election offices. Some
election officials did the right thing and were on the spot
with certified technicians to correct those problems. So, in
fact, the lawsuit did work. You had fewer calls because some
election officials acted and voters did not have to make calls
to the hotline.
Mr. McCarthy. What made you do the lawsuit in the first
place?
Mr. Hailes. The lawsuit was filed because there was no
final judgment by the Secretary in place that machines broken--
50 percent of them--would result in emergency ballots being
provided. Without the lawsuit, the State would have required
all of the machines in all of the precincts to be broken before
emergency ballots would be provided.
Mr. McCarthy. Did you bring a lawsuit to give greater
information to people to know where their polling places were
or how to do registration?
Mr. Hailes. We did not bring any lawsuit in Pennsylvania.
We worked with the Secretary to make it happen. Other groups
within our coalition did bring the lawsuit. We, as many other
groups that we work with, use litigation as a last resort. I
have been very pleased with the amount of cooperation we get
from election officials once they get the data, get the
information, and see that in order to protect the rights of
voters they have to take very assertive steps.
Mr. McCarthy. Watching the data shows there are certain
priorities of things. Educating the voters seems like it would
be a top item.
But if I could go to Secretary Ron Thornburgh, you said you
worked with HAVA. Could you give me a little update of when you
worked through that balance between Federal and State, because
that was a major change in pattern, particularly in the area of
provisional ballots; how did you guys go about doing that
debating? What were some of the tough difficult times of
getting to where you got to?
Mr. Thornburgh. Well, if I might, I would say first we have
to understand the emotions of the time. We had just come off a
2000 Presidential election in which there was, if I may be so
bold as to say, there was an incredible movement within
Washington, D.C. to federalize elections. Obviously it wasn't
working. We need to federalize it. I think, rather clearly, was
opposed to that. And the point that I consistently tried to
make is that although the process was flawed, the system worked
and we ultimately got to where we needed to go. Some will still
disagree with that yet today.
But as we finally got to the biggest issue, and that is the
one you have outlined there: What is the appropriate role for
the Federal Government and what is the appropriate role for the
States and what is the appropriate role for local entities as
well as for a number of private entities that are out there
pushing this along as well?
I think what we ultimately found is that the States given--
and I have said this in my testimony--when they are given the
reins and the opportunity to do something, we are not
restricted through Federal regulation, then we can go above and
beyond.
And if I may use a brief example. On voting machines and
emergency paper ballots, for instance, within the State of
Kansas, I can tell you we don't mark emergency ballots by how
many machines go down. We mark it by voters are having to wait
in line; get them a ballot. And if that voter chooses to wait
in line, then they certainly may do so.
And so a Federal law that would require a basis upon how
many machines break down would completely disrupt and, I think,
serve Kansas voters worse than what we are able to do now. And
so I think we have to be careful on that.
Mr. McCarthy. Madam Chairman, one quick follow-up that I
want to get to. My understanding is you just started an on-line
registration.
Mr. Thornburgh. That is right.
Mr. McCarthy. Quickly, because we have some votes coming
up, what are the safeguards you built in if somebody registers
on line?
Mr. Thornburgh. The single most important safeguard is that
an on-line voter registration, in my opinion, only works when
it is tied in with the Division of Motor Vehicles. So in order
for a person to register to vote on line in the State of
Kansas, they must be registered--or have a driver's license.
Because at that point, we have already captured a signature and
we have gone through the other elements of security that go
along with that as well, and now they can tie in and receive
the voter registration opportunity.
And then we have the follow-up when we mail that individual
their voter registration information to verify they actually
live where they say they live.
Mr. McCarthy. You have a signature to check.
Mr. Thornburgh. That is correct.
Mr. McCarthy. Thank you, Madam Chair. I would just like to
submit for the record the nationwide data table for the
Advancement Project project voter.
Ms. Lofgren. Without objection, that table will be made
part of the record.
[The information follows:]
[COMMITTEE INSERT]
Ms. Lofgren. And I would now turn to my colleague from
California, Mrs. Davis, for any questions she may have.
Mrs. Davis of California. Thank you, Madam Chair. Thank you
all for being here.
One of the things that I have learned in coming to this
committee is really how varied it is out there. And I think in
some cases we would say that is a really good thing, because it
gives the flexibility. But on the other hand, I think it
creates a lot of confusion as well.
I know that when during the election time here in D.C. It
feels people just make mistakes because they are listening to
the radio, they are hearing several different ways in which
they can access polling hours and absentee ballots, et cetera.
And that really does seem to confuse everybody.
We also know from the military and overseas voting that
people have to grapple with 50 different sets of absentee
ballot requirements, and that becomes a problem.
So I think that having some things uniform is important.
The Constitution only lays out the fact that people have to
vote on Tuesday. That is the only thing that is truly uniform
across the country.
And I wonder, then, could you share a few areas in which
you think actually some of the standardization, the uniformity,
should be in place that would be helpful, cause less confusion
for voters, and, in the end, really benefit the voter rather
than necessarily the counties in terms of ease of election
material? Is there anything else that you feel that you can
share with us that you really do believe should be more
uniform?
Ms. Herrera. Madam Chair, Ranking Member McCarthy and
members of the committee. As my colleague right here is
mentioning, they have on-line voter registration. In New Mexico
it wouldn't work because we are not at that level yet. However,
sitting on the EAC Advisory Board, I do use a lot of their
issued voluntary standards. I believe if we get some of those
voluntary standards out to some of these States, or they start
utilizing them or practicing some of the practices that they
are issued out, I believe we probably would come a little bit
closer than everyone running their own in the States.
But it won't always--everything won't work for every State,
because I have my laws, he has his laws that he has to abide
to. So it would kind of interfere with our State statute.
I will just give you an example. I am for standardizing--
before I go on, we should standardize and run our State's
uniformity. I think that is important. It shouldn't be any
different within the States. However, we have to make sure that
we do not disenfranchise any voters. Like New Mexico, we have a
lot of native lands, and we have got to make sure that they are
not disenfranchised.
Mrs. Davis of California. I think also, if I may just
inject, we are also talking not just statewide elections, but
we are also talking Federal elections.
Ms. Herrera. Correct.
Mrs. Davis of California. Where people should have an equal
opportunity and equal chance to cast their ballot, which, in
some cases, I think that is really not true.
Ms. Herrera. In New Mexico I do everything in my power to
make sure that no one is disenfranchised. I do depend a lot on
EAC standards and work with the lawmakers in the State of New
Mexico.
Ms. Oakley. Mrs. Davis, I would like to point out that what
you have brought up is essentially a little cascade that occurs
in elections. The Feds kick it down to the States; you know,
okay, we have the NVRA, but now we have the States. They get to
decide what they are going to do.
In California at least, the State kicks it down to the
counties. Now the counties are going to decide how things are
done. And then finally, in essence, the counties kick it down
to the pollworkers, and now you have got four 75-year-old
ladies deciding how things should be done.
And I truly believe that unless you have an overarching
standard, you don't have overarching equality. And to me that
is very worrisome.
Mrs. Davis of California. Did you want to comment. Mr.
Thornburgh.
Mr. Thornburgh. I tried very hard to not, but I have to. I
want to go back to part of what I said.
Mrs. Davis of California. Well, my time is going to be up.
So, Madam Chair.
Ms. Lofgren. By unanimous consent, the gentlelady is
granted an additional minute so Mr. Thornburgh can answer.
Mr. Thornburgh. I will be very brief. I think where there
is a need for standards, we need to look to outcomes rather
than process. Because what works for Los Angeles, California,
is not going to work for Leoti, Kansas. And we have to
understand and appreciate those differences in this country of
ours. And certainly we want to push outcomes that provide for
equal opportunity and equal access for every voter.
And I absolutely believe that we are working towards that.
And if we can keep outcomes in mind rather than process, then I
think we are on the right track.
Mrs. Davis of California. Can I just ask as a no-excuse
absentee voter State, do you think it is appropriate that
people do not have to get a notary signature, for example, in
order to vote absentee?
Mr. Thornburgh. In Kansas?
Mrs. Davis of California. Yes.
Mr. Thornburgh. Yes, I do think that is appropriate. I
think that a notarization is an unnecessary burden in that
particular process. I don't know that it is appropriate for me
to tell my friends in other States what I think is appropriate
for them, but in Kansas that works well for us.
Mrs. Davis of California. Thank you very much.
Ms. Lofgren. The gentlelady yields back. Mr. Harper.
Mr. Harper. Thank you, Madam Chair. You know, having in
another life as a highly unpaid political volunteer for 30
years--and I was county party chair in my home county and had
to run primaries for 7 years, and of course the clerks' offices
do an incredible job in Mississippi--I am just trying to figure
out how Federal control over that process is going to help
those pollworkers do better than the system that is in place.
The problem that we had sometimes was, no matter how much
training you had of pollworkers that, sometimes they still
didn't quite get it on election day.
And so I want to say that the system that we have used
worked extremely well, which was we had a very involved circuit
clerk's office. We had people available to answer questions. If
they ran short of ballots, we got them to them when we were
doing paper ballots back years ago.
And then, invariably, we had problems with the electronic
machines. That has happened this past time. And no matter how
you plan ahead, you have those issues.
But I would just say that we want uniform standards within
that individual State, but I don't want to have Washington,
D.C. Be the one to tell you how it should be done in New Mexico
or Kansas or California, Mississippi. If those States--and we
have an incredible group of secretaries of state that do an
exceptional job across our country to make sure that those
things happen.
I assume if you looked for the imposition and management of
Federal standards that were mandatory on you, would you
envision the EAC being the organization to oversee that--or the
Department of Justice? Anybody have an answer to that?
Mr. Hailes. Let me start by saying--and thank you for the
question, Mr. Harper--that both the EAC and the Department of
Justice could play a role in overseeing the administration of
standards once they are in place.
The advantage of having uniform standards is to help avoid
the type of 11th-hour litigation that causes many pollworkers
and election officials to complain about. Pollworkers find
themselves on election day with different interpretations of
their responsibilities. There is no clear, uniform answer for
them to determine what happens to a voter who moves within the
last 20 days from one county to another; whether they have to
cast a regular ballot or a provisional ballot. And so they are
looking for clear direction, and that can be done through
uniform standards.
Mr. Harper. Reverend Hailes, can't the secretary of State
for that State along with the clerk's office for that county
handle and answer those questions? And of course in our State
we provide that training for those pollworkers in those
primaries, and of course in the general election the circuit
clerk's office handles those in my State. Don't you think that
local control and local training is better than having someone
come in from Washington, D.C. Let's say to do that. And I would
be interested in knowing Secretary Herrera what your response
is on that.
Ms. Herrera. I agree that the Secretary of State and the
county clerks within the State should run their elections as
needed. I agree that at the Federal level there can be some
standardization. For instance, of course, like the time; you
know, election day 7:00 a.m. to 7:00 p.m. Just items like that,
that won't interfere with the election process.
What works in New Mexico won't work in other states. Also,
anyone can vote absentee; they don't have to have a reason. I
know some States do. Maybe that could be one of the standards
and allow folks to vote absentee, I don't know.
I know that the ID requirement is always coming up in all
the States, just make sure it is standard. Something like that
can be a standardized item, rather than getting into the nitty-
gritty of running elections, because we have already voting
sites. I have 15 in the larger counties--18, 2, and none in
some of our smaller counties.
Mr. Harper. Secretary Herrera, my time is almost up, but I
know there was an issue with ACORN in your State.
Ms. Herrera. Right.
Mr. Harper. Have you been involved in any of the
investigation of the voter fraud allegations there, either
working with the FBI investigators--or have you been involved
in any hearings on those allegations?
Ms. Herrera. I was county clerk when we turned some of the
voter registration forms over to the U.S. Attorney General for
review. And so, yes, I have been involved.
Mr. Harper. Thank you.
Ms. Lofgren. The gentleman yields back. Mr. Davis.
Mr. Davis of Alabama. Thank you, Madam Chairwoman. Let me
hone in on a provisional ballot question because it strikes me
as the most interesting question that we are dealing with. Who
on the panel believes that there should be a uniform nationwide
standard for how provisional ballots are handled, at least in
Federal races?
Mr. Hailes. I would say I do, if it is the right uniform
standard.
Mr. Davis of Alabama. Well, it is the one you write. I get
that. Who on the panel believes it is a general proposition?
Ms. Herrera.
Ms. Herrera. I think qualifying provisional ballots and who
is entitled to provisional ballots can be a standard at a
Federal level, because we are all stating we don't want anyone
to be disenfranchised. Right now we have requirements that we
must issue provisional ballots if we received any of the HAVA
funding. So why not make standards as far as who is entitled
and why, and why they exist? I believe that would help
nationwide.
Mr. Davis of Alabama. Let me follow up on that. The whole
policy purpose behind provisional ballots, as I understand it,
is to allow eligible voters to have an opportunity to maintain
their eligibility or to assert their eligibility if it is
somehow questioned on election day.
Now, the way eligibility is defined in Federal races is you
have to be an American citizen who is 18 years of age or over.
And, of course, given States have restrictions, for example, on
convicted felons. I think that is the most popular and the only
kind of exclusion that I really know of--if you are a convicted
felon and have committed a certain class of crime, you are
disenfranchised.
So if an American citizen is over the age of 18 and does
not have a felony status, shouldn't that individual be presumed
to be eligible to vote in any Federal election?
Ms. Oakley. I would say yes, absolutely.
Mr. Davis of Alabama. I think we all agree with that, so
that leads to my question.
Mr. Thornburgh. I apologize for interrupting. I am not sure
we all agree with it, because I am not sure I followed the----
Mr. Davis of Alabama. Well, you may see where my question
is going.
Mr. Thornburgh. Did we say we assume every person who shows
up is qualified to vote?
Mr. Davis of Alabama. No.
Mr. Thornburgh. I misunderstood. I apologize.
Mr. Davis of Alabama. An American who is a citizen who is
over the age of 18 and has no felony disqualification, I think
all of us would agree States ought to have the right--or most
of us would agree States ought to have the right to wade into
that area. You may disagree as a matter of public policy, but
most of us would agree that States have the right to wade into
that area.
So stipulate that for one second. Someone who is not
disqualified because of a prior conviction, who is an American
citizen who is over the age of 18 and who lives in that State,
I would assume we would agree that a person who fits those
characteristics ought to be able to cast a vote in a Federal
race in that State, correct?
So, therefore, if we allow multiple States to have
different standards when it comes to provisional ballots, don't
we undermine that agreement?
For example, I am looking at the data the committee
provided: 17 States will count provisional ballots if you voted
in the wrong precinct; 27 States won't.
Now, whether I live in Mountain Brook, Alabama or Homewood,
Alabama doesn't touch one of those core qualifications that I
mentioned: my age, my status as an American, and my non-felony
condition.
So it would seem to me Congress does have the right to say
that there is kind of a national eligibility standard that
exists, and that given communities can't chip away at that.
Because if there are 27 States that would not allow a vote in
the wrong precinct by someone who fits those standards to
count, arguably those 27 States are undermining a principle of
enfranchisement.
You are nodding your head affirmatively, Ms. Oakley. I
assume you agree.
Mr. Thornburgh, you are seeming to disagree. Tell me why
you disagree.
Mr. Thornburgh. Well, I wanted to clarify one point,
because I think one of the elements of the opportunity to vote
is also registration. And registration is an element that is
important.
Mr. Davis of Alabama. If someone is registered and they are
voting in the wrong precinct, why shouldn't they be allowed to
still vote?
Mr. Thornburgh. For the races in which they are eligible to
vote----
Mr. Davis of Alabama. For Federal races, for President of
the United States.
Mr. Thornburgh. In my State of Kansas, if a person shows up
in the wrong polling place, they are given a provisional
ballot, and we count the votes for the offices in which they
were eligible to vote, from Federal through State.
Mr. Davis of Alabama. But some States don't do that. Don't
you think it is problematic that some States can deny the
franchise to someone who is otherwise legally entitled to vote
in a Federal race? Because that is what happens.
If I can have an additional 30 seconds, Madam Chairwoman,
isn't that what happens? If some States can deny the
provisional ballot based on precinct, haven't they undermined a
core Federal ability to participate in an election?
Mr. Thornburgh. I would respectfully disagree, in that part
of the process is that a person in order to be able to cast
their ballot--I hate to fall back on the rules of the game, but
the rules are you kind of have to follow the rules of the
election. You need to vote on a ballot. You need to vote on the
voting machine. You need to follow that process. And that
process has been established to--either having a ballot sent to
you, in the case of advance voting or whatever the case may be,
or going to the appropriate polling place to have that cast.
So I don't know that the State removed that individual's
right to cast their vote, but the individual didn't follow the
rules established by the State.
Mr. Hailes. But if I may, Mr. Thornburgh said it is not
about process, it is about outcomes. The outcome in that
circumstance would be disenfranchisement.
Mr. Davis of Alabama. My time has expired.
Ms. Lofgren. And my time has begun. First let me thank all
of the witnesses for your very interesting testimony. I think
what we want to do is to help enfranchise people. I think you
all want to do that. And the question is, what is the
appropriate role for the Federal Government to help promote
that?
Just listening, I was fascinated by your description, Ms.
Herrera, of outlining what is voter intent in advance of the
election. What a smart thing to do, so you are not with the
candidates, fighting over what does it mean when you do the
happy faces around the candidate's name, that is going to
decide the outcome of the election. You decide how to read that
type of nonsense in advance so that everybody knows.
I don't know whether best practices that States engage in
will simply be adopted by States if the EAC provides that
information. I think, probably, yes.
But there are certain elements--I think that certainly we
rely on the States and counties to run the elections, but the
Federal Government has the opportunity or responsibility for
Federal elections. And we want to make sure that if there are
Americans who are being disenfranchised, that that doesn't
happen.
I guess the question I have is: If you had voluntary
standards, let's say, for example, use Mr. Davis' example of
provisional ballots, and it is very clear from the ballot that
a majority of the provisional ballots cast are not counted in
the United States. That doesn't mean that is true in all of
your jurisdictions. But if you add it up in the United States,
that is the fact. So it is really not necessarily serving the
intent that people had in mind to the extent that people were,
in fact, Americans over 18 and eligible to vote.
If we had those standards and made them voluntary, but
mandatory, to the extent that States accepted HAVA money, would
that be effective in your judgment?
Mr. Thornburgh, would that be offensive if it was made--if
you take the money, you have to take the rules?
Mr. Thornburgh. Well, I think to a large extent, those
rules are in effect; if you take the money, you need to follow
these rules.
If I may talk about the provisional for just a moment, you
said there were a vast majority of provisionals that were not
counted. I would assume--and I don't know these facts so I
should be careful what I say--but I would assume that a large
number of those were individuals who were not registered to
vote, who showed up on election day. I don't know that for a
fact.
But I can tell you in the State of Kansas, the single thing
that we have done, of the provisional ballots prior to the
previous election, of the provisional ballots on election day,
there were individuals who registered to vote through the
Division of Motor Vehicles. The paper process was not forwarded
to the county election officer. That person applied to register
to vote but was never, in fact, registered. So that was a
mistake on the process part.
We then created the electronic transmission of that same
information, and we addressed, I think, about 80 percent of the
problems on election day through that single change that we
made for that.
So we were both getting to the same point. Let's reduce the
number of provisional ballots and make sure everyone's vote
counts who has an opportunity to do so; but we may disagree on
what that is supposed to look like or what the road map looks
like.
Ms. Lofgren. I understand your point. I think the point on
outcomes has merit as well, because the idea--and I like your
``time tax'' phrase because that is exactly what it is. If one
citizen has to wait for 15 hours to vote and another citizen
has to wait for 5 minutes, that is not equal protection. That
is not fair.
But the answer may not be how many polling places; it is
what do you have to do when the wait is over 15 minutes? And
that would be the outcome that you are suggesting; am I
correct, Mr. Thornburgh?
Mr. Thornburgh. Yes, Madam Chairwoman.
Ms. Lofgren. I guess the other thing I wanted to mention,
we had a hearing last Congress about title VII of the National
Voting Rights Act, which is widely ignored, unfortunately,
around the United States. And I think your motor vehicle
advance sounds like a very thoughtful and useful procedure.
Have you also instituted those procedures in social service
agencies and the like, as title VII suggests should occur?
Mr. Thornburgh. Madam Chairwoman, we have not implemented
those in the other social service agencies because the vast
majority of registrations--and I want to say it is about 65
percent of all new registrations in the State of Kansas--now
come through DMV. So we were trying to wrestle the biggest one
first.
We do have the opportunity through title VII to do that
through the other agencies, but we have not made that
electronically.
Ms. Lofgren. My time has expired and I don't want as Chair
to take advantage of that, but I do hope that you will take a
look at that.
One of the things that we were--I was frustrated about--was
that the Department of Justice really didn't do anything about
title VII last year. And I think with the new Department, that
is going to change. So I think it is a good time for all
secretaries of state to review their title VII compliance.
With that, I am going to thank once again all the members
of the committee and the witnesses. I would note that the
hearing record will be open for 5 days for additional questions
that members may have and the written record will be
maintained.
[The information follows:]
[COMMITTEE INSERT]
Ms. Lofgren. I am advised that Reverend Hailes wanted to
submit something, so let me invite you to bring that up at this
time.
Mr. Hailes. Thank you so much, Madam Chairwoman. This is an
Advancement Project 2008 report on provisional voting entitled
``Fail-Safe Voting or Trap Door to Disenfranchisement?''
Ms. Lofgren. Without objection, that will be made a part of
the record.
[The information follows:]
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Ms. Lofgren. If there is nothing further, then we will be
adjourned; and just in time, because we have been called for
votes across the street on the House floor. Thank you very
much.
This meeting is adjourned.
[Whereupon, at 3:13 p.m., the subcommittee was adjourned.]
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