[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
MILITARY AND OVERSEAS VOTING: EFFECTIVENESS OF THE MOVE ACT IN THE 2010
ELECTION
=======================================================================
HEARING
before the
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
----------
Held in Washington, DC, February 15, 2011
----------
Printed for the use of the Committee on House Administration
Available on the Internet:
http://www.gpoaccess.gov/congress/house/administration/index.html
MILITARY AND OVERSEAS VOTING: EFFECTIVENESS OF THE MOVE ACT IN THE 2010
ELECTION
=======================================================================
HEARING
before the
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
Held in Washington, DC, February 15, 2011
__________
Printed for the use of the Committee on House Administration
Available on the Internet:
http://www.gpoaccess.gov/congress/house/administration/index.html
U.S. GOVERNMENT PRINTING OFFICE
66-806 WASHINGTON : 2011
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20402-0001
COMMITTEE ON HOUSE ADMINISTRATION
DANIEL E. LUNGREN, California, Chairman
GREGG HARPER, Mississippi ROBERT A. BRADY, Pennsylvania,
PHIL GINGREY, M.D., Georgia Ranking Minority Member
AARON SCHOCK, Illinois ZOE LOFGREN, California
TODD ROKITA, Indiana CHARLES GONZALEZ, Texas
RICHARD NUGENT, Florida
Professional Staff
Philip Kiko, Staff Director
Jamie Fleet, Minority Staff Director
MILITARY AND OVERSEAS VOTING: EFFECTIVENESS OF THE MOVE ACT IN THE 2010
ELECTION
----------
TUESDAY, FEBRUARY 15, 2011
House of Representatives,
Committee on House Administration,
Washington, DC.
The committee met, pursuant to call, at 10:30 a.m., in room
1310, Longworth House Office Building, Hon. Daniel E. Lungren
(chairman of the committee) presiding.
Present: Representatives, Lungren, Schock, Nugent, Brady,
Lofgren, and Gonzalez.
Also Present: Representative Wilson of South Carolina and
Davis of California.
Staff Present: Phil Kiko, Staff Director & General Counsel;
Peter Schalestock, Deputy General Counsel; Kimani Little,
Parliamentarian; Joe Wallace, Legislative Clerk; Yael Barash,
Assistant Legislative Clerk; Salley Wood, Communications
Director; Bob Sensenbrenner, Elections Counsel; Karin Moore,
Elections Counsel; Jamie Fleet, Minority Staff Director; Kyle
Andersen, Minority Press Secretary; Matt Defreitas, Minority
Professional Staff; Khalil Abboud, Minority Elections Staff;
and Thomas Hicks, Minority Elections Counsel.
The Chairman. I now call to order the Committee on
Administration for today's hearing on the implementation on the
Military and Overseas Voter Empowerment, or MOVE, Act during
the latest, that is the 2010, elections.
The hearing record will remain open for five legislative
days so that members may submit any materials they wish to be
included therein. As an initial matter, I ask unanimous consent
that the members of the Committee on Armed Services,
Subcommittee on Military Personnel, be allowed to participate
in this hearing. And we I think will have them come along the
way.
Without objection, it is so ordered.
I would like to thank my colleagues and all the witnesses
for being here today. This is a necessary and vitally important
hearing as we seek to evaluate the MOVE Act's effectiveness
during the last election cycle. This panel in the last Congress
passed out the MOVE Act. It was passed on the floor of the
House. It was passed in the Senate. The President signed it,
and we expected it to be followed. This is a hearing to find
out how well it was followed, what problems may have occurred,
and why it was not more effective.
We have two excellent panels of witnesses, each of whom
possesses valuable real world experience in voting and election
issues.
As we must do everything we can to guarantee that our
military personnel have the right to vote upheld, I am
particularly interested in how to hear how successful States
were in implementing the MOVE Act during the 2010 elections;
why States were granted waivers for MOVE Act requirements and
why they were denied; and what steps are being taken by the
Department of Justice to ensure compliance without equivocation
in future elections.
I did take notice of the recently released Overseas Vote
Foundation's 2010 Post-Election Voter and Local Election
Officials Survey Report. The report found that in 2010, 82
percent of sampled overseas voters received the ballot they
requested, representing a 5 percent improvement over 2008. The
report also found that the percentage of 2010 sample overseas
voters who received their ballot after mid-October declined
from 28 percent to 16.5 percent. These findings indicate
improvement, but the problems are still not eliminated.
According to the report, when the number of overseas voters
who did not get a ballot or received their ballot too late are
added together, fully one-third of the survey's respondents
attempted to vote but could not. While this is an improvement
over the 50 percent reported in 2008, it is obviously not good
enough. We must do better.
The 1986 Uniformed and Overseas Citizens and Absentee
Voting Act and the 2009 MOVE Act were both aimed at ensuring
our brave servicemen and servicewomen are not disenfranchised.
Given their sacrifice on our behalf, they deserve every effort
to be made on their behalf to guarantee their right to
participate in our elections.
I now would like to recognize my colleague and the
committee's ranking member, Mr. Brady, for the purpose of
providing an opening statement.
[The statement of the Chairman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Brady. Thank you, Mr. Chairman. And I want to thank you
for calling this important meeting hearing the effectiveness on
the Military Overseas Voter Empowerment Act of 2010 Election.
This represents a substantial effort on the part of the
committee to make it possible to have our brave men and women,
give them the absolute right to--in armed services--give them
the absolute right and guarantee to be able to vote.
Like any product of Congress, this legislation is far from
perfect. And while I believe it has improved the voting process
for millions of Americans living and working overseas, it is
unacceptable that as many as 30 percent of the ballots may have
gone uncounted.
I would like to ask unanimous consent to have the rest of
my statement be put in the record without me reading it because
I am anxious to listen to our witnesses and be able to figure
out any way possible that this committee, myself and anybody
else can make it possible, again, to have the men and women
that are fighting for our freedom in harm's way, fighting for
my family, my children, my grandchildren, to make sure that
they have the absolute right to be able to vote and be able to
have their ballot counted.
So I thank you, Mr. Chairman, and I yield back the balance
of my time.
[The statement of Mr. Brady follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Without objection, the gentleman's full
statement will be added to the record.
And statements of all other members will be added as well.
And I thank the members of the Subcommittee on Armed
Services for joining us here today as well.
I would like to ask unanimous consent to insert these
additional items into the record: two articles by a former
voting rights section attorney J. Christian Adams that are
critical of the Department's efforts to enforce the MOVE Act;
an article in the publication Advertising Age highlighting the
Federal Voting Assistance Program's outreach efforts to
military voters through Superbowl ads; and four letters sent to
the Committee on House Administration by the Secretaries of
State of Indiana, Mississippi, Florida and Georgia. These
letters detail those States' efforts to comply with the MOVE
Act.
Without objection, they will be entered in the record.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. I would like to introduce our first witness
for the first panel, Mr. Thomas Perez.
Since October 2009 Mr. Perez has been the assistant
attorney general of the Civil Rights Division of the Department
of Justice. Before taking that position, Mr. Perez was the
secretary of the Department of Labor, Licensing and Regulation
for the State of Maryland, a professor at the George Washington
School of Public Health, a Montgomery County Council member, a
professor of law at the University of Maryland School of Law, a
health care consultant, director of the Office of Civil Rights
at the Department of Health and Human Services, deputy
assistant attorney general for Civil Rights Division of DOJ and
special counsel to Senator Ted Kennedy.
We are honored to have you here, Assistant Attorney General
Perez. We thank you for your dedication to public service.
The committee has received your voluminous written
testimony, which is not only testimony but the report you are
required to give, so we will take that as the reason that it
was 167 pages. I must say that is the longest submission I have
ever seen, and we actually went through it.
We will recognize you for 5 minutes to present a summary of
that submission. To help you keep that time, we have a timing
device near the witness table. If it is working, the device
will emit a green light for 4 minutes and then will turn yellow
when 1 minute remains. When the light turns red, it means your
time is expired. But we will give you a little bit of time
since you gave us so much of your written paper work.
We thank you again for joining us today and you may
proceed.
STATEMENT OF THE HONORABLE THOMAS E. PEREZ, ASSISTANT ATTORNEY
GENERAL FOR CIVIL RIGHTS, U.S. DEPARTMENT OF JUSTICE
Mr. Perez. Thank you, Mr. Chairman.
It is an honor to be here, Mr. Chairman, Ranking Member
Brady and other members of the committee and other members of
the Armed Services Subcommittee.
Thank you for the opportunity to testify today about the
Justice Department's efforts to enforce the MOVE Act, and thank
you for your leadership in securing the passage of the MOVE
Act.
The MOVE Act's enactment in 2009 was the most important
advancement in the area of military and overseas voter law in
over 20 years, and we welcome the new protections it provided.
Ensuring that our military service-members and their families,
as well as American civilians living overseas, can have their
voices heard in the electoral process is a responsibility that
the Justice Department takes very seriously. And the Department
has made the fair, aggressive and independent enforcement of
UOCAVA and the MOVE Act a top priority.
The Department strongly supported the new protections
included in the MOVE Act, and the President proudly signed it
into law in October of 2009. After its passage, the Department
geared up to ensure the MOVE Act would be implemented
successfully across the Nation.
Leading up to the 2010 general election, the division's
Voting Section devoted more than 20 staff members to this
nationwide enforcement program. Just a few months after the law
was passed, we contacted every State and territory in writing
to explain the new requirements and sought information on
compliance.
We worked closely with our colleagues at the Department of
Defense Federal Voting Assistance Program and the General
Counsel's Office at the Department of Defense, analyzing the
changes and making sure that we were together in our
enforcement of the law.
After our letters went out in April of 2010, we provided
substantial technical assistance to States. Our goal was to
answer questions; anticipate and prevent problems; and provide
guidance that enabled States to implement effective programs.
In addition to our State outreach, we reached out from time
to time to local election officials to obtain information and
fill information gaps.
A number of States passed laws to ensure that their voting
practices conformed to the MOVE Act. Three such States,
Indiana, West Virginia and Florida, are represented here today.
We also consulted with DOD as they fulfilled their
statutory role to grant or deny waiver requests under the MOVE
Act. Twelve States and territories applied for waivers: Five
were granted; six were denied; and one State withdrew its
waiver application. For States where the waiver applications
were denied, on the same day as the denial notification, we
notified them as well that I had authorized the filing of
lawsuits to ensure compliance. Our attorneys immediately began
working with those jurisdictions, and we reached resolutions
with all six of them.
Overall, the Department took action to resolve compliance
concerns in 14 jurisdictions, including 11 States, 2
territories, and the District of Columbia. Of the 14
jurisdictions, we filed lawsuits in 5, obtaining a court order
in one and 4 court-approved consent decrees. In the other
jurisdictions, we obtained four out-of-court memorandum
agreements and five informal resolutions, which were typically
letter agreements memorializing the changes that the States
made to come in compliance.
Ensuring that every military and overseas voter who wanted
to cast a ballot had the opportunity to do so was our goal and
continues to be our goal. So we took enforcement actions in
States where violations affected many thousands of voters, as
well as in States where they affected a few dozen. Our consent
decrees in New York and Wisconsin, for example, afforded a
remedy for thousands of UOCAVA voters, while the remedy in our
lawsuit against Guam affected about 100 voters and Nevada
involved one county and 35 voters.
Our quick negotiations with officials in the six
jurisdictions where waiver applications were denied resulted in
a consent decree with Wisconsin and out-of-court agreements
with the remaining five jurisdictions.
The division also filed a lawsuit against New York, which
had received a waiver but failed to comply with the terms of
the waiver. We negotiated a consent decree with New York that
mandated corrective measures, including an extension of the
ballot receipt deadline until November 24th.
The Department also initiated enforcement actions for
failure to comply with the 45-day requirement in States that
had not sought waivers, including filing lawsuits and reaching
consent decrees with Illinois and New Mexico; filing a lawsuit
and winning a court-ordered injunction in Guam; and obtaining
informal agreements in Kansas, Mississippi, Nevada and North
Dakota.
The Voting Section's nationwide effort to enforce the MOVE
Act in the 2010 cycle was an unprecedented effort, unmatched in
any other Federal general election cycle with respect to any
other voting statute.
Since its passage in 1986, a total of approximately 40
UOCAVA lawsuits have been filed. Five of them were filed in the
2010 cycle. Our efforts benefitted tens of thousands of voters
in the 14 States and territories where we took action, as well
as other States across the country where we worked with
officials to ensure compliance without enforcement actions.
Since the election, we have continued our monitoring
efforts, not only in the 14 jurisdictions with which we had
formal or informal agreements, but across the country. Just
last week I met with State election directors, attended the
conference of the National Association of Secretaries of State,
and spoke at the Overseas Vote Foundation conference.
I read the report that you noted, Mr. Chairman, with great
interest. We are working with the Election Assistance
Commission to review the data as it comes in, and we are
receiving data required by the agreements in our cases. We will
also continue to consult with the Department of Defense.
Our goal in all of the post-election outreach and data
review is to learn from our experiences and to hear from a
diverse array of stakeholders as to what went well, where there
is room for improvement and what suggestions they may have for
improvement, either in the law itself or the procedures that
are in place.
Some States may need to make structural changes requiring
legislative action, such as moving the primary date, as some
States have done. And others may also have to take additional
actions.
I am very proud of the work of the dedicated career
professionals in the Voting Section. Their hard work assisted
tens of thousands of voters.
I am equally appreciative of the efforts of our colleagues
in State governments, as well as local election officials, who
worked tirelessly to ensure that service-members serving our
Nation and others living overseas would have meaningful access
to the ballot.
But I am by no means here to declare victory. We continue
to gather additional information and review the data to
determine where we have made progress and where there is room
for improvement. We continue to reach out to key stakeholders
to see what they saw from the field.
There is reason to be optimistic about the progress we
made, but it is still too early to tell with precision how well
we did or where there are gaps and why those gaps existed.
One military or overseas voter disenfranchised is one too
many. Our goal is and will continue to be 100 percent
compliance.
The MOVE Act was an overwhelmingly bipartisan enterprise,
and I look forward to continuing to work with both committees
represented today on a bipartisan basis to ensure its full and
effective enforcement.
Thank you, Mr. Chairman, and thank you, ranking member, for
your time.
[The statement of Mr. Perez follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. And thank you for your testimony.
At this time, we will start the questioning with 5 minutes
apiece, and I will start the questioning.
You said that tens of thousands of soldiers were able to
vote as a result of these efforts. How many were not able to
vote despite these efforts?
Mr. Perez. That is what we are looking at now, Mr.
Chairman.
The Chairman. Would that be in the range of tens of
thousands?
Mr. Perez. It is impossible to state with any certainty
because we are still getting the data from the Election
Assistance Commission, and we expect to get that data in the
next couple of weeks.
The Chairman. Would you be surprised if we are over 10,000?
Mr. Perez. I really don't know what the number is, sir,
because what we are trying to do is gather the data and make a
determination.
The Chairman. Well, you claim you helped tens of thousands,
but you cannot tell us how many were not helped?
Mr. Perez. That is why we are gathering the data, sir, and
we hope to be in a position to make those judgments in the
coming months.
The Chairman. I appreciate the work you did. I would just
say for our men and women in uniform, we don't allow them to
come home with a success rate of 82 percent, or whatever it is,
and tell them that that was a job well done. Frankly, that
would mean loss of lives. And it just seems to me in this
situation, we ought to be as concerned about their right to
vote.
Let me ask you about two States I am not sure you
mentioned. You did mention my home State of California, where
it did take some actions to record significant reductions in
the number of rejected military absentee ballots as compared
with the election in 2006. But let me ask you about Illinois
and let me ask you about New York. It seems to me those are two
of the most egregious States in terms of their performance.
In Illinois, you were involved in a consent agreement, but
it appeared that your Department allowed some counties to be
treated differently than other counties. Some were basically
required to tow the mark; others were not. Can you tell me
about the disparity in treatment of the different counties in
the State of Illinois, and are you satisfied with the results
that you received in the State of Illinois?
Mr. Perez. We had a lawsuit that was filed on October 22nd.
We filed a lawsuit and a consent decree that day. There were
ballots in six different counties that were at issue in that
particular case. And as is the case in virtually every UOCAVA
case that has been filed since 1986, the remedy is to extend
the deadline for voting beyond the date of the election.
Some States already have provisions that extend that
deadline. Illinois had those provisions as well. And when you
factor in the provisions that allow for the extension of time
to submit your ballot, along with the relief that was sought in
the court, every voter and every county, except one, had the 45
days. And the one county that didn't, Mr. Chairman, was a
county that had until November 19th. And the reason that
November 19th was a hard deadline was because there was a
subsequent certification deadline in the Senator Burris
incident so that you couldn't extend it beyond the November
19th. So there was one county----
The Chairman. Wasn't that subsequent election in all
counties?
Mr. Perez. But because of the peculiarities of that county,
it was one day short in that particular county. Every other
county, the military and overseas voters had 45 days pursuant--
--
The Chairman. Can you tell me anything about a report that
was published in the newspaper and then republished in
reference--at least referenced in subsequent articles, about
one of the counties in Illinois where they ensured that ballots
were delivered to people who were incarcerated with greater
expedition than making sure that similar ballots were delivered
to the military?
Mr. Perez. I am not familiar with the particular report
that you are referring to, sir. But I can tell you that when we
went to court, we had a hearing. There was actually a motion to
intervene that was filed in that case. And the judge in that
case at the conclusion of the hearing ruled that the settlement
addressed the needs of the voters who were potentially
disenfranchised.
So there was a hearing in that case, and the court, upon
carefully reviewing the consent decree and the arguments that
were made, concluded that the efforts in Illinois and the
result in Illinois were consistent with the MOVE Act and
consistent with ensuring protections.
The Chairman. What about New York? New York, as I
understand, after receiving a two-week waiver allowing the
State to begin mailing absentee ballots on October 1st, 13
counties, including three in New York City, failed to meet the
deadline and waited until October 5th or later to mail absentee
military ballots.
Mr. Perez. In New York, there were roughly 43,000 ballots
that were not sent by the deadline. And as soon as we learned
about that--and again, you are correct, Mr. Chairman, that New
York did have that--DOD did grant a waiver to New York, and
notwithstanding that waiver, they were not in compliance.
And so it was--we learned in the course of our
investigation that October 10th was the latest date that
ballots had been sent out. And so the consent decree there set
a ballot return deadline of November 24th, which was 45 days.
So, again, using the 45-day period as the touchstone, we were
able to obtain relief there, not only to fix that problem----
The Chairman. But didn't they still have to have the ballot
voted by the actual election date to have it counted?
Mr. Perez. That is correct.
The Chairman. So if it got to them basically too late to do
that, the fact that you extended the time after the election
for it to be received by the authorities was of no moment to
them, right?
Mr. Perez. Well, that is why the MOVE Act is so important,
because it does contain a number of provisions for the
electronic submission of ballots to people. Or, in some cases,
ballots can be sent via express mail delivery. And so
technology is an ally. Those sorts of deliveries are allies,
and that is why the MOVE Act is so important. And that is why
when we were looking at various remedies, we used a wide array
of remedies, including the electronic transmission, including
overnight mail. Some of the various decrees and agreements that
I described included provisions for the overnight mailing of
ballots.
The Chairman. My time has expired.
The Ranking Member of the full committee is recognized for
5 minutes.
Mr. Brady. Thank you, Mr. Chairman.
What tools could Congress give to you to improve compliance
with this act? You know, we want to make sure that our men and
women, again, that are protecting us have that opportunity to
vote.
Mr. Perez. Sure. And we share that interest. And that is
precisely what we are doing right now. I am a big believer of
plan, execute and reflect. And right now, we are gathering
data, and we are reflecting.
One of my first obvious reflections is that States that had
problems were States that had late primary dates. A number of
States moved the primary dates up. Hawaii is one of the States
that we had to take action against. And they have already
passed a law to move their primary date up.
If you have a September election and you have a recount,
you are never going to have 45 days to--or I don't want to
state it so unequivocally--you are going to be hard-pressed to
meet those deadlines. And that is why states have moved their
deadlines up.
We are carefully reviewing, along with the Department of
Defense, because it is their responsibility to make the waiver
determinations, we are looking at that process. We are looking
at how we can better communicate information at the front end
and see whether there are additional tools that we can put to
bear so that the information, the word gets out in an effective
fashion. And frankly, what we are doing right now, Congressman,
is we are talking to various stakeholders to find out--you
know, tell us what you learned, tell us where it worked, tell
us where you think it didn't work and let's dissect where it
didn't work and understand why.
Mr. Brady. We all mention the word States, but actually it
is the counties. I mean, the State puts the law out when the
elections are taking place, but then the county has got to
comply. And in the State of Pennsylvania, we have a whole lot
of different counties, a whole lot of different cultures. But
what kind of harm or what could we do in Congress to make sure
that the counties do comply, because in a lot of places if they
don't comply, there is nothing you can do to them, other than
try and impress upon the fact you are taking away somebody's
personal right to vote?
Mr. Perez. That is an excellent question, Congressman.
And the MOVE Act puts the accountability on the States to
ensure compliance. But you are absolutely correct; there are
9,000 jurisdictions across the United States that administer
elections. And so, in the course of our review, we would, when
we got information that led us to be concerned about a
particular jurisdiction, and Mr. Chairman asked about some
specific counties, we often got on the phone with that county
to get even more specific information.
And so part of our learning right now is, how do we ensure
that in a system that is as decentralized as the system we
have, with 9,000 roughly different authorities administering
elections, but with a MOVE Act that does put the accountability
on the States, how do we thread that needle? How do we ensure
information flow from counties so that if there is a problem,
we learn about it as early as possible and can correct the
problem? How can we empower counties with the tools that they
need to ensure compliance?
Mr. Brady. Are you confident that up to the 2010 election
that you did everything in your power enforcement wise to make
sure that these votes were being counted?
Mr. Perez. Yes, sir.
Mr. Brady. Well, you know, my point to you is that, you
know--and I am not directing this at you, I think you do a
great job, and you continue to try to do a great job trying to
be able to have our men and women vote. There is a carrot and a
stick. In the younger days, I always liked the carrot; the
older I get, I am talking about the stick now. What can we do
to give you a little bigger stick?
Mr. Perez. Well, that is precisely what we are looking at
now. And I would like to get the data from the Election
Assistance Commission and really study it and understand it so
that I can come back to the entire committee with the answers
to where was our authority limited and where could it be beefed
up? Because I very much appreciate your carrot and stick
metaphor. And we are, especially in the structure that we have,
you know, with State accountability, with 9,000 local election
officials or local election bodies administering that, I think
that question that you asked is one of the many $64,000
questions that we need to collaboratively address.
Mr. Brady. Try to get them down to just a couple hundred
instead of $64,000. Thank you for your time.
Mr. Perez. Thank you for your time, sir.
The Chairman. The gentleman from Illinois is recognized for
5 minutes.
Mr. Schock. Thank you, Mr. Chairman.
Mr. Perez. Good morning.
Mr. Schock. Good morning.
I am enormously concerned that in my home State of
Illinois, 35 out of Illinois' 102 counties failed to comply
with the MOVE Act's specific requirements. As a result,
thousands of Illinois men and women in our armed forces were
disenfranchised, which is an abomination that cannot go without
holding those responsible accountable.
In St. Clair County, Illinois, home of Scott Air Force
Base, 1,200 ballots were mailed 16 days late on October 4,
2010. Illinois' primary was held in the first week of February
2010, the earliest primary in the Nation, leaving a full 9
months before election day for the general election, yet
preparations to comply with the vital Federal law obviously
fell flat.
The Illinois State Board of Elections director, Chris Cray,
stated that ballots may not be counted even if the State was
delinquent in complying with the MOVE Act. I believe that is
outrageous and cannot stand and for which those responsible
must be held accountable and which must never be allowed to
happen again.
It was also reported that the Chicago Board of Elections
hand-delivered ballots to the Cook County jail to ensure that
voters there in jail had the opportunity to vote, yet overseas
military ballots were casually mailed weeks late and in clear
violation of the law. And then no remediation was accorded in
counting ballots that were arriving back to the election
authorities to make up for those election authorities' failure
to comply with the law.
I have profound wonder at why the law regarding the date
that voted ballots must be received to be counted was strictly
upheld but not the unequivocal law about when these ballots
were required to be mailed in the first place.
Mr. Perez, I ask why did the Department of Justice not know
about these problems until well after it was too late and until
after the media covered what I believe was a scandalous
situation?
Mr. Perez. Congressman, we did learn about the problem
before the media began to cover it. We learned about it through
our outreach. As I said before, we sent letters to every single
State. We followed up with every single State. And then, as
soon as we learned about the situation in Illinois, we filed
the action that I described.
One thing that we did in Virginia is relevant to a comment
that you made in your question. I completely agree with you
that if a ballot arrives late after an election, as long as it
has been sent before the election, the vote should absolutely
be counted. And we went to court in Virginia to uphold that
precise principle, because the failure of election officials to
get the ballot out in a timely fashion shouldn't prejudice the
voter.
So I completely agree with you on the issue of as long as
someone submitted it by the election date, and as a result of
the consent decree, the receipt dates were extended to--I think
it was November 16th or 20th, and I will get the precise date,
but as long as those ballots were received by that date, then
they should have been counted.
And one thing I will take away from our interaction is I
want to double back to make sure that those ballots were
counted. Virginia argued that it wouldn't have made a
difference in the election. I think that is irrelevant. If
somebody has voted, their ballot should be counted. And so one
thing that we are learning from this interaction is I need to
double back on that because that is the first I heard of that.
Mr. Schock. You are not aware that the State Board of
Elections director of legislative affairs in our State made
that decision at this point?
Mr. Perez. I am not personally aware. I don't know whether
the career staff is aware of that, but I will make sure I
follow up on that issue.
Mr. Schock. What is the penalty for states and election
authorities that fail to comply with the MOVE Act?
Mr. Perez. The penalties that have been in place since
UOCAVA and now under the MOVE Act are--the most common penalty
or the most common remedy is the extension of the receipt date
for the ballots. So, in New York, for instance, the date was
extended to November 24th. In Illinois, you already have a law
that grants certain extensions for I think up to 14 days. So,
to the extent that they needed more than that, that is what the
consent decree called for. So that is the most frequently
obtained source of relief.
We also get prospective relief, so that we are getting
reports from Illinois, the other 14 jurisdictions where we have
agreements. We are analyzing those reports. We are getting
reports about what they are going to do prospectively, because
what occurred in the Illinois election was absolutely not up to
what we expect in terms of enforcement of the MOVE Act.
And so we did our best to fix the problems in the November
2010 cycle, and now we are actively working to prevent problems
in the future. And that is not simply in Illinois, but it is in
every jurisdiction.
Mr. Schock. Mr. Chairman, I realize my time has expired. I
would ask permission to submit questions in writing to the
Department.
The Chairman. Absolutely. Any member can submit questions
to the record.
We would ask the witness if you receive them that you would
respond to them in a timely fashion.
Mr. Perez. Absolutely. Thank you for your time.
The Chairman. The gentlelady from California.
Ms. Lofgren. Thanks, Mr. Chairman, and thanks for having
this hearing.
I think this is an extremely important subject. And as has
been mentioned, this was a bill that received broad bipartisan
support. Everyone agrees that our men and women in uniform,
they are out there for us, and we have got to be here for them
so that they have an opportunity to cast their ballots and have
their ballots counted. It is just absolutely fundamental.
So we took a good first step, and this oversight hearing is
another important step to make sure that whatever shortfalls
existed get corrected so that we don't have any problems,
hopefully, any problems in the next election.
I am wondering, the Department of Justice has a lot of
things it needs to do. In the whole panoply of things that your
division needs to pay attention to, where would you put this?
Was this the highest priority that you have, the second
highest? I mean, how would you rank your attention to this.
Mr. Perez. I think you can make judgments about how people
prioritize something by how many resources they put in. We had
20 people that were basically all hands on deck in our MOVE Act
enforcement. That is almost one half of our litigation unit.
And they were scouring the Nation and learning new things on a
daily basis. It was a very compressed timeline for compliance.
Ms. Lofgren. So half your litigators were working just on
this compliance?
Mr. Perez. That is correct.
Ms. Lofgren. Let me ask you this. I mean, obviously, you
have got teams spread out trying to find problems to do
something about it, but there are also Americans looking at
things and presumably drawing your attention to problems.
Mr. Perez. Absolutely.
Ms. Lofgren. Were there any complaints that were brought to
your Department that you were unable to respond to?
Mr. Perez. We received information and complaints from
outside stakeholders, as well as from States. I mean states--
Ms. Lofgren. That is what I mean, outside stakeholders.
Mr. Perez. Oh, of course. And we continue to do that
outreach. I spoke at the Overseas Vote Foundation meeting last
week.
Ms. Lofgren. My question is, you know, Mr. Smith says I
just found out my county didn't send it out, are there any of
those--are there letters in your inbox that you were unable to
respond to a complaint?
Mr. Perez. Not to my knowledge. Whenever we received a
complaint, whoever was assigned to that State would immediately
respond and then talk to the individual who complained or the
local election official or whoever the person was. And we would
do our level best to fix the problem.
Ms. Lofgren. Now, part of, you may not know the answer to
this, but there was a pilot project in the bill to allow the
use of the Internet. And I think it was West Virginia and the
District of Columbia that were the pilots. And it is my
understanding that the District of Columbia was hacked. And I
think it was the University of Michigan put their fight song
on. I mean, they weren't malicious, but I think these young
people wanted to prove that it wasn't secure.
I have been one to believe that we are not ready from a
security point of view to do Internet voting. But I also think
that the capacity actually to transmit the ballot, not the
filled-out ballot but just the raw ballot, overseas that could
then be sent back by snail mail would really help a lot. Have
you given any thought to that as a potential answer for
overseas, because we have the Internet. You could print out the
ballot and then you wouldn't have to mail it, but then you
could actually, the armed services could take tremendous
responsibility for getting those ballots back to the right
jurisdiction.
Mr. Perez. Well, in fact, in Illinois, just to use an
example, part of the consent decree required that anyone who
wanted to receive the ballot electronically needed to be sent
the ballot electronically, even if there had been a ballot
mailed to them. So I completely concur that technology can be
an ally, especially in the mailing of unfilled-out ballots. And
that obviously can cut the amount of time dramatically when
time is indeed of the essence. I also am familiar with the
concerns that you have identified.
And I think in response to your question, Congressman
Brady, technology is going to be a big part of the discussion
moving ahead. Technology can be an ally and was an ally in the
implementation of the MOVE Act. But you have identified a very
important barrier to taking technology to the next level.
Ms. Lofgren. Well, we could get half of the problem solved.
I am not suggesting, I don't want to be misunderstood, that we
should move to Internet voting, because I don't think the
security is adequate for that. But I think the transmission of
blank ballots----
Mr. Perez. And in fact, that occurred, and it is my
understanding--the DOD was involved in that--but my
understanding is that it in fact did increase.
And the OVF report that you recognized, Mr. Chairman, did
make mention of the increased use of Internet.
Ms. Lofgren. Thank you, Mr. Chairman.
My time has expired.
The Chairman. The gentleman from Florida, the former
sheriff, is recognized, Mr. Nugent.
Mr. Nugent. Thank you, Mr. Chairman.
Mr. Perez. Good morning, sir.
Mr. Nugent. Good morning, sir.
Good morning, Mr. Perez.
Obviously, we have a number of veterans in the State of
Florida that are deployed overseas, including, at any given
time, my three sons. So, obviously, the voting act as relates
to our military is of paramount importance to me and to my
constituents. You mentioned about how you prioritize your
investigations and that you have 20-some litigators assigned to
that. Of the other 20, how many are assigned to the
multilingual balloting initiative?
Mr. Perez. I don't know the precise number of people
working on the bilingual ballot issue. I can get back to you on
that. But section 203 compliance, which is the bilingual ballot
provision, and section 4(e) of the Voting Rights Act, which is
another bilingual ballot provision, are provisions that we have
also enforced with vigor.
Mr. Nugent. So the MOVE Act, though, is your priority
number one?
Mr. Perez. Well, the MOVE Act was a top priority. And
especially in the implementation of a new law, which is why we
deployed so many resources during the 2010 election cycle to
making sure we did our level best to enforce it.
Mr. Nugent. Have hardship regulations been developed yet by
DOJ?
Mr. Perez. I don't believe that is our responsibility to
develop hardship regulations, but I will look into that. There
is a lot of--there is a division of labor in the MOVE Act
between DOD and DOJ, and I don't know with precision whether
the hardship regulation----
Mr. Nugent. Will you find out for me?
Mr. Perez. I sure will.
Mr. Nugent. So you are not sure whose responsibility it is?
Mr. Perez. That is correct.
Mr. Nugent. And obviously, DOD is the one that offers the
waivers?
Mr. Perez. That is correct; they make the decisions on the
waivers and under the statute in consultation with the Attorney
General. So we did consult with them, but it was their call in
the end.
Mr. Nugent. In your prior testimony, you mentioned that you
do receive information from the Election Assistance Commission
and you review that information on a regular basis.
Mr. Perez. Yes we do, Congressman.
Mr. Nugent. There was a report from the EAC that showed
over 45 percent of the UOCAVA ballots received by New Jersey
were rejected for various reasons. Are you aware of that?
Mr. Perez. There are a number of reports that we have
received, but it is my understanding that the Election
Assistance Commission has granted an extension until March 1st
for a number of States, and I don't know if New Jersey is in
that particular category--I thought it was for all States, but
I am not certain of that--to provide additional evidence and
information.
And so our goal moving forward, and again, in response to a
number of questions, we are very much in the outreach and
information gathering mode to figure out what went right, what
went wrong, why the things that went wrong went wrong and how
we fix them. And so we are going to be looking at the data for
every State, whether it is New Jersey, whether it is Florida,
every State. And again, our goal is 100 percent compliance.
Mr. Nugent. Well, obviously, that is an important issue for
Congress and for the American people.
Mr. Perez. Absolutely.
Mr. Nugent. But I want to make sure that the over 30
percent of those who wanted to vote could not vote, and I want
to have concrete solutions in regards to how we are going to
address that. You know, we hear all the time about our military
out there fighting for us, so we need to be fighting for them
here in this Chamber to make sure that every vote is a vote
counted and not one that is just dismissed because it is hard
to get to them or an elections office has a difficult time with
this.
So my question to you really is, how are you--you touched
on the issue about compliance, but how do we ensure there is
compliance? I mean, other than going to court--and a lot of
times, when you go to court, it still doesn't resolve the issue
because of the time-sensitive nature of balloting. I mean, how
are we going to make sure that 30 percent in the 2011 or 2012
cycle get their vote counted?
Mr. Perez. We make sure that we are vigorously monitoring.
We make sure that we have redundancies built in so that when we
get information from State A, we have other means of getting
information to verify whether that is accurate. We have early
warning systems in place. We are doing the outreach that we
have already done so that there are boots on the ground, folks
in communities who will provide us with that information. We
empower voters.
I have actually gone out to military bases to talk with
commanding officers about our work in the employment context
and the USERRA context, protecting people like your sons who
serve our Nation with great distinction and come home and lose
their jobs. I am talking about protecting people who are losing
their homes, and we have a robust program of enforcement of the
SCRA. And we are talking to base leaders, commanding officers
about the MOVE Act, and I am learning a lot from them about how
we can get the word out. Because one of the things that we need
to do more of is get the word out at the front end to our
servicemembers, whether it is the National Guard, as they
prepare to deploy, make sure they know that you can't--you
know, you have rights not to lose your home. You have rights
not to get your car repossessed. You have the right to vote and
get your ballot in a timely fashion. Those are the things that
I look forward to working with you and this committee on to
make sure that we are doing all of those things.
Mr. Nugent. One last question if I may just extend for a
moment--or I will do it in writing so we can move on.
The Chairman. Thank you.
I recognize the gentleman, the distinguished former trial
judge from Texas, Mr. Gonzalez, for 5 minutes.
Mr. Gonzalez. Thank you, Mr. Chairman.
I refer to that as the good old days.
But quickly, this is an important topic for all of us. And
I will remind everybody that when we passed it I believe it was
a bipartisan effort and I would like to keep it that way as we
follow up to make sure it is effective.
I come from San Antonio, Mr. Perez, and that is Military
City, USA. And we mean it, and I understand that some of my
colleagues may compete for the title, but they are mere
pretenders when it comes to San Antonio.
Mr. Perez. I believe Congressman Nugent may have some issue
with that.
The Chairman. Spoken like a true Texan.
Mr. Gonzalez. It is a healthy competition.
Mr. Nugent. And I was in San Antonio back in 1969, so thank
you, sir.
Mr. Gonzalez. Air Force?
Mr. Nugent. Yes, sir.
Mr. Gonzalez. You have to go through basic training at
Lackland, so if you are Air Force, I know you have been to my
city.
But quickly, I just kind of want a timeline, Mr. Perez. It
is one of those things where you don't want to act when it is
too late, and you want to be prepared. And we are going to have
testimony from election officials in a minute, and I am hoping
to be here for most of that testimony; I have to go to Energy
and Commerce. However, DOJ doesn't wait until the effective
date of a statute before you start preparing for its
implementation, is that correct?
Mr. Perez. Absolutely.
Mr. Gonzalez. All right. So let's say, in March of 2009,
you were nominated. In June of 2009, I think the Senate
Judiciary Committee--or the committee, yes, voted you out 17 to
2. But you weren't confirmed until about the first week in
October so----
Mr. Perez. October 6th, but who is counting?
Mr. Gonzalez. Well, because three weeks later was the
effective date of MOVE, wasn't it?
Mr. Perez. Correct. October 28th I believe is when the
President signed it.
Mr. Gonzalez. Because you are the cop on the beat now.
Starting three weeks earlier, you are there. The question, and
I want to piggyback on my colleague, Congressman Nugent's
question, and you were talking about it, and you pointed out
early warning system. And what do you mean by that? What is the
outreach to our election officials so that you know way ahead
of time, not when you get the request for some sort of a
waiver, but I mean, how do we build that in? And then I have
got a follow-up about the manner.
Mr. Perez. Sure. I am a former prosecutor and I have had a
lot of experience implementing new criminal laws. And what we
do in those situations is really similar to what we do here,
which is, as soon as the law passes--actually, frankly, before
the law passes, you have prepared your outreach materials and
your education materials. You have robust relationships with
key stakeholders. You are building additional relationships. So
you are out there early on getting the word out.
And that is precisely what we did in collaboration with our
colleagues at DOD. As a result of that, then you send out the
guidance letter, which we did in 2010. I think it was March or
April of 2010. And then from that guidance letter, the team of
20 that I referred to is fanning out to every State, answering
questions, anticipating questions, talking, if necessary, to
local election officials. Because again, the relationship
between States and then those 9,000 entities that are
administering elections is critical. And when you have that and
when you have those systems in place that have early
accountability, I think you can identify problems at an earlier
stage.
And one of the things we are going to certainly work on and
redouble our efforts on is to establish those early warning
systems. Because I would like to figure out a way if there is
another Illinois or another New York, we have a shared interest
in preventing that. And what we need to do is figure out how
best to get those early warning systems in place.
And we have implemented those. I have implemented those
with police departments in the use-of-force context. So that if
an officer has used force on a number of occasions, there is a
yellow light, and Internal Affairs comes in and at least takes
a look to see whether it is a problem or whether there is a
benign explanation for that. And I think we need to work
together to figure out how can we identify and prevent problems
earlier on rather than during that frenzy of the 60 days
preceding the elections. I think we have a shared interest and
could have mutual benefit from that.
Mr. Gonzalez. And one last thing, Mr. Chairman, and with
the chairman's concurrence.
I know you are awaiting further information from EAC that
will assist you maybe in answering some of the questions that
are posed today in the purpose of the hearing. And if you could
supplement some of your responses based on the information that
you will be receiving, I guess in March, that would be very
helpful because we may follow up. And my time has expired.
Thank you very much. I yield back.
Mr. Perez. I would be honored to.
The Chairman. Thank you.
And now the gentleman who is the Armed Services
Subcommittee on Military Personnel chairman.
Mr. Brady. Mr. Chairman, do I have a right to object? I am
going to extend my right not to object because I am sitting
here with my chairman and my ranking member of my subcommittee,
and I want to be put on record that I allowed them and I want
to allow them and invite them to testify.
The Chairman. It was with the considered concurrence of the
ranking member that you are allowed to testify--or excuse me,
to ask questions here to join us, and we thank you for that.
Mr. Wilson. Thank you, Mr. Chairman.
And indeed, I appreciate, Mr. Chairman, your national
leadership on this issue of military voting. You and I have
discussed this issue a number of times. And I know your sincere
interest in military families and voting.
And Mr. Brady, I am so grateful that you are on the
Military Personnel Subcommittee. And I appreciate the
references. This is bipartisan, because we all want our
military voters to participate. And I am grateful to be here
with the ranking member, Susan Davis, of the Military Personnel
Subcommittee.
I am like Mr. Gonzalez. I am very proud of the military
facilities in the district. I have Fort Jackson adjacent to
Fort Gordon. We have Marine Corps Recruiting Depot--Parris
Island, the Beaufort Marine Corps Air Station and Beaufort
Naval Hospital.
I also have the perspective because I expect real high
standards of election commissioners. I was vice chairman of our
county election commission, and I know that with planning
ahead, what has occurred should not have occurred.
Additionally, I am the co-chair of the Americans Abroad
Caucus representing 4 million Americans across the world.
And then I also have the perspective that I have seen it
done correctly. In my home county of Lexington, South Carolina,
the election commissioner, Dean Crepes, the commissioners, the
staff members of the commission, were proactive, and they made
every effort for military voters to be counted.
With that, a question is, did DOJ solely rely on State
level election officials for their assurances?
Mr. Perez. No. In some circumstances, when we had
information that caused us to have concerns in a particular
county, we would go and contact that particular county. So
there are a number of States that come to mind where we had
direct contact with the county election judges.
I don't want to overstate that. We didn't have contact with
9,000 election offices across the county. But as a result of
our outreach activities, when we learned of a problem, we
certainly--and it is part of the verification protocol, to call
that particular county; hey, I hear there might be an issue, or
can you tell me what the current status is? So, certainly in a
number of jurisdictions, we did have that; although certainly
not in every jurisdiction.
Mr. Wilson. And when you did find out that there was a
potential violation, what were the steps taken?
Mr. Perez. We worked to fix the problem. I mean, obviously
in Nevada, for instance, there was one county with roughly
three dozen voters that were potentially disenfranchised, and
we were able to reach an informal letter agreement with the
State to fix that. Because again, although we have the 9,000
local elected--local election officials that run elections, the
accountability under the MOVE Act is still with the State. So
we would double back to the State and say, hey, you have got a
problem in this particular county, and then work
collaboratively to try to fix that problem.
Mr. Wilson. And what steps are being made proactively to
prepare for the election of 2012?
Mr. Perez. Well, again, we are reviewing all the data that
we are getting from the Election Assistance Commission. We are
reaching out. And I wrote down Lexington County because you
have got a lot of experience. I look forward to reaching out to
counties that have been doing it and doing it well for a long
time to get that boots on the ground perspective--I am a former
local elected official, so I have a lot of respect for people
out there in the front lines and their knowledge of the nuts
and bolts of basic administration. And so that is going to be--
that already is and will continue to be part of our outreach to
learn what went well, what can we improve, and then as
Congressman Gonzalez said earlier, I look forward to sharing
with you the lessons learned.
Mr. Perez. I hope to be able to do that as soon as
possible, because we obviously don't want to wait until we are
right on the verge of the 2012 election to implement the
lessons learned.
Mr. Wilson. And you have been front line on County Council
in Montgomery County. I am aware of that.
I was intrigued by Ms. Lofgren's point, to e-mail transmit
ballots to be mailed back. What other remedies could be made to
expedite the counting of military ballots before election--on
election day?
Mr. Perez. Well, again, the e-mailing, just to be clear,
applies to e-mailing the blank ballot, not e-mailing the ballot
back. That was a remedy that we used in Illinois. That is a
part of the--and my recollection of the report from the
Foundation showed that there is a fairly dramatic increase in
the use of that.
Again, the use of Express Mail has been part of the
remedies that we have put in place. Because, obviously, if you
can shorten the time, that is a huge step forward. So those are
the principal remedies.
And then obviously extending the ballot receipt date is the
most common remedy. And, again, some States already have laws
in place that extend that ballot receipt date in some
circumstances, including, I believe, Florida. And that can be
helpful, although there are some who have concerns about
extending the ballot receipt for the reason that you mentioned,
Mr. Chairman, about you should really get that ballot out 45
days before the election. So we recognize that tension, and we
don't want that fail-safe of those State laws to become an
excuse for noncompliance. We are very mindful of that.
So these are the various considerations we are working to
implement. And I can't wait to contact Lexington County
because, you know, once a local-elected official always a
local-elected official, and I look forward to----
Mr. Wilson. Absolutely. Thank you very much, and I share
the concern of the chairman. I believe the ballots need to be
back by election day. Thank you.
The Chairman. I thank the gentleman.
It is now my pleasure to recognize a former member of this
committee and the current ranking member of the Committee on
Armed Services Subcommittee on Military Personnel for 5
minutes.
Mrs. Davis. Thank you, Mr. Chairman, and I recognize that
perhaps you all miss me so you invited me back for your first
hearing. I appreciate that.
Thank you very much, Mr. Perez, for being here; and I
wanted to explore with you just a little bit some of the issues
that I think you have touched on in many ways. When we have 50
different States with different rules, laws, that have to be
complied with, which creates a certain amount of confusion, I
suspect, on your part, but on the part of our military members
as well, who are going online or are trying to figure out, you
know, how they do this, many members tell us, men and women in
uniform tell us that it is confusing to try and follow all of
this.
So I wanted to just think about what ways, perhaps, within
article 1, section 4 of the Constitution, of course, we can
comply with some more uniformity; and one of the issues is, of
course, the requirement of a notary signature.
Now, in the MOVE Act, we prohibited States from getting
that, but the reality is that it is still on the forms. And so,
for a lot of people, they are still worried if they can get
that notary signature.
In the services, a lot of our officers are notaries, but,
on the other hand, it is something that just, you know, people
look at and they go, oh, dear, how do I do that? It is a little
discouraging. I want to be sure I can find the right person,
especially overseas, of course, that is what our concerns are.
So what do you think we could possibly do about that?
And, in your opinion, is there any real benefit to this
notary signature? One of the statements within the law is that
it is not required that they have that, and many election
officials tell us they don't look at it anyway, but it is still
a requirement. Is it helpful and what role does it play?
Mr. Perez. Well, the issue of the notary was an issue that
we have been hearing about in the course of our post-election
outreach; and, again, the report from the Overseas Vote
Foundation noted the confusion that you have identified in your
question. My recollection of the MOVE Act, which I think is
embodied in your question, was that it eliminated the
requirement. And so, you know, one of the steps moving
forward----
Mrs. Davis. The problem is that they don't know that.
Mr. Perez. Right. One of the steps moving forward is to,
you know, figure out how we can communicate that and what
additional measures consistent, perhaps, with Congressman
Brady's carrot-and-stick framework can be put in place to make
sure that States appreciate that Congress really meant it when
it said that it was eliminating that requirement. Because that
is noted in the report of the foundation as a continuing
barrier, notwithstanding the very express intent of Congress.
Mrs. Davis. I wonder if you would feel free to comment on
does it provide--does that notary signature provide any more
security? What is your experience with this?
Mr. Perez. Well, I think that Congress has made the
judgment that it doesn't; and certainly there are other
provisions that we have in force where people have been able to
through attestation, exercise the right to vote.
And so there are other contexts in which that, attestation,
I am who I am has proven sufficient; and the evidence base, I
think, suggests that that sort of attestation provision has not
led to the concerns of fraud that underlie those who might want
a notary.
Mrs. Davis. Thank you. I appreciate that.
Are there any other areas that you have come across that
you think perhaps the committee should be exploring, again
within the bounds of the Constitution, that would make this
easier so that we don't have such a lack of uniformity, I
guess, throughout this process?
Mr. Perez. Well, we are--I mean, it is the challenge--and,
again, I spoke with the Secretaries of State last Friday, four
or 5 days ago, and I heard a similar comment that many of you
have noted which is that, yes, we understand we are accountable
under the MOVE Act, but you need to understand that we have
hundreds of jurisdictions doing this, and that is our system.
So part of what we are looking to do a better job of is to
learn about how we can better coordinate under those
parameters.
And this is not an issue that is limited to the MOVE Act.
It is an issue that is also in play in the motor voter context.
Because States are accountable for the effective implementation
of motor voter, but I often hear feedback from States that,
hey, you have got to go talk to that county election--not the
election official but the DMV or the social service agency.
So I think this is part of a broad conversation about how
we can best ensure coordination between the States on the one
hand and the local election officials with whom they work,
which is why we have been reaching out to all of the
stakeholders. Because I recognize that speaking to Secretaries
of State and only Secretaries of State is insufficient.
Speaking to local election officials and only local election
officials is similarly insufficient. We need to bring everyone
together.
Mrs. Davis. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Mr. Perez, I would just say, for those who may be listening
in and have not seen this issue or really studied this issue
before, elections are held at the local level. We have local
elected officials that have a great responsibility. We are not
coming in without proper constitutional authority. We are
talking about Federal elections, and we are talking about our
American military having an opportunity to be able to vote.
So I hope anybody is disabused of the notion that we don't
understand the proper role of local governments in here. But we
have an obligation to make sure that our military people and
others overseas--but I am specifically focusing on our
military--have a right to vote and to have that vote counted
and that when we exercise proper constitutional jurisdiction we
expect that to be carried out.
I think you have helped us with some suggestions of maybe
where we have to make further inquiry as to how we can improve
this bill. As you have heard, there are some questions that may
be submitted to you in writing, and we would ask that you
respond to those in a timely fashion.
With that, I thank you.
Mr. Perez. I certainly will.
Mr. Chairman, I did have an answer to Congressman Nugent's
question. He asked about the hardship.
The Chairman. Yes.
Mr. Perez. And my staff was able to confirm that that
actually is the responsibility of FVAP over at DOD. And I don't
believe that any regs have been issued, and I will--I think
they issued guidance on that issue, but I will confirm that.
But I wasn't sure of the answer to your question, but I
have been able to confirm that.
Mr. Nugent. Thank you.
The Chairman. So the chairman of the appropriate committee
on Armed Services will probably hold hearings on that, and
maybe he will let us sit in on those.
Mr. Perez. Thank you for your time, and thank you for your
courtesy.
Mr. Wilson. Absolutely.
The Chairman. Thank you.
Now I would like to welcome our second panel of witnesses
for their important testimony.
As I said earlier, all of our witnesses possess valuable,
real-world experience, knowledge that we desperately need as we
seek to marry real-world circumstances and technology with our
unwavering commitment to enfranchise our overseas
servicemembers and/or American citizens, and it will be
interesting to receive the benefit of their testimony with
their different areas of expertise and perspectives.
The Honorable Natalie Tennant is the 29th Secretary of
State of West Virginia. She is active in the National
Association of Secretaries of State and is currently co-chair
of the Voter Participation Committee.
Mr. J. Bradley King is the co-director within the Indiana
Secretary of State's office of the Indiana Election Division,
the State agency which assists voters, poll workers, and local
election officials throughout the State of Indiana.
Mr. David Stafford is the Supervisor of Elections from
Excambia County, Florida. He was elected as supervisor in 2004
and re-elected in 2008. He is a certified elections and
registration administrator, a member and president-elect of the
Florida State Association of Supervisors of Elections, and a
member of the National Association of Election Officials.
Mr. Richard Jones is the co-chair of the Alliance for
Military and Overseas Voting Rights. He served more than two
decades on Capitol Hill, focusing on veterans' affairs issues
and worked for American Veterans before joining the Alliance
for Military and Overseas Voting Rights.
Eric Eversole is the founder and executive director of the
Military Voter Protection Project. He is a U.S. Navy JAG
officer, who served on active duty from 1999 to 2001, currently
and continues to serve as a commander in the U.S. Navy Reserve.
As a civilian attorney, he worked in the voting section of the
Civil Rights Division of the Department of Justice and has been
a tireless advocate for military voters.
I thank each of you for being here and for your respective
service. I know that you will agree with me and the other
members of the panel in affirming the necessity and importance
of the MOVE Act, and I look forward to hearing how effective it
was in the 2010 elections from your perspective and how it can
be made even more effective in the future.
As I noted with Mr. Perez in the first panel, the committee
has received written testimony from each of you. At the
appropriate time, I will recognize each of you for 5 minutes to
present a summary of that submission.
To help you keep the time, we have a timing device near the
witness table. The device will emit a green light for 4 minutes
and will turn yellow when 1 minute remains; and when the light
turns red, that means your time has expired. We are not quite
as bad as they are over at the Supreme Court where, when I
argued my one case over there, I was instructed that when that
red light goes on, unless you are answering a question posed to
you by a member of the Court, you are to stop in mid-sentence
and mid-syllable, if possible. We will not require that today.
Let me tell you, when you are standing there, you realize
they are in charge. Here, we are in charge. But I would just
ask you, from my left to your right, to testify before us,
starting with Secretary Tennant and please try and keep within
the 5 minutes or close thereto.
STATEMENTS OF THE HONORABLE NATALIE E. TENNANT, SECRETARY OF
STATE, WEST VIRGINIA; J. BRADLEY KING, CO-DIRECTOR, ELECTION
DIVISION, INDIANA SECRETARY OF STATE; DAVID STAFFORD,
SUPERVISOR OF ELECTIONS, ESCAMBIA COUNTY, FLORIDA; RICK JONES,
CO-CHAIR, ALLIANCE FOR MILITARY AND OVERSEAS VOTING RIGHTS; AND
ERIC EVERSOLE, EXECUTIVE DIRECTOR, MILITARY VOTER PROTECTION
PROJECT
STATEMENT OF THE HONORABLE NATALIE E. TENNANT
Ms. Tennant. Thank you. Thank you, Chairman Lungren and
Ranking Member Brady and the members of the Committee on House
Administration for inviting me to testify at today's hearing on
Military and Overseas Voting: Effectiveness of the MOVE Act in
the 2010 Election.
My name is Natalie Tennant. I am the West Virginia
Secretary of State, and I am grateful for the opportunity to
speak to you today about our experience in West Virginia
related to the implementation of the Military and Overseas
Voter Empowerment Act, known as MOVE, that we have been talking
about. This topic is of great importance to election
administrators, to our uniformed servicemembers, their spouses
and dependents and to the United States citizens living and
working around the world.
This subject is especially very special for me and personal
to me as well, because I am the spouse of a United States
service member scheduled to be deployed to Afghanistan in just
a few months. My husband, Erik, will be leaving on April 8, and
we have a special election coming up on May 14. And before he
gets to Afghanistan, he has several different stops in between.
And so, of course, this is of special importance.
And we, the people of West Virginia, are also very proud
because we have a high number of citizens per capita who serve
in the military and serve our country as well who come from
West Virginia.
My written testimony today includes additional details
regarding the implementation of the MOVE Act in West Virginia.
But in summary for you here today, in order to comply with the
provisions of the Act, we needed to develop new legislation,
revise procedures, and adopt technical solutions.
We first reviewed the four key components of the UOCAVA
voter experience--I know that you have been hearing that word a
lot, UOCAVA, and it actually stands for Uniformed and Overseas
Citizens Absentee Voting Act of 1986--I am sure you all are
aware of--and those four experiences, though, voter
registration, absentee ballot application, blank ballot
transmission, and voted ballot return.
We adopted several legislative solutions, including moving
our ballot transmission date to 46 days instead of the 45 days
before the election, changing write-in candidate filing
deadlines to 49 days before the election, and requiring all
counties to provide electronic blank ballot transmission, among
other moves.
Operationally, we required very few changes--we were
required of very few changes to assure that we fully complied
with the first two voting components, and that was voter
registration and absentee ballot application. Well, then we
focused our efforts on the final two, blank ballot transmission
and voted ballot return.
We conducted two side-by-side pilot programs which, in
addition to traditional absentee voting methods, allowed us to
conduct a comprehensive analysis of absentee voting methods
available to our UOCAVA voters. And we in West Virginia
initiated a limited pilot in eight counties that tested the
effectiveness of online ballot marking and return. This was the
first pilot of its scope in the Nation, and we are very proud
that we led the country in that.
So a separate pilot was conducted in conjunction with the
U.S. Federal Voting Assistance Program, which is known as FVAP
that you hear us talking about, which did indeed focus on the
blank absentee ballot electronic delivery that you all have
talked about today. And the State worked with three industry
leaders on these projects, each of whom adhered to rigorous
standards promulgated by the State and who submitted their
systems to the user acceptance testing and logic and accuracy
testing before the systems were made available to the voters.
Through concerted and cooperative efforts by local county
clerks and their staff, our vendors and Federal agency partners
and the staff in my office, West Virginia met all requirements
of the MOVE Act. The conduct of the two pilots allowed the
State to test for functional effectiveness to determine true
environmental and logistical obstacles and to add appreciably
to the national dialogue on electronic voting options and their
feasibility.
Because of our relative population size and the number of
voters covered by UOCAVA and our willingness and ability to
innovate, West Virginia provides an optimal environment to
explore additional methods for absentee military and overseas
voters to receive and cast a ballot. I truly believe that we
achieved a high level of success with our efforts. We received
positive voter feedback and experienced a significant increase
in UOCAVA voter successful vote attempts.
We stand ready to work with all stakeholders to ensure that
the foundation of our democracy, the right to a meaningful
opportunity to cast a ballot, is afforded to all voters. We
consider this to be our solemn obligation, and we continue to
explore secure voting options through the use of technology and
the adoption of the best practices and will remain committed to
providing the best possible service to those who serve our
country.
Chairman and Ranking Member, thank you for allowing me to
be here.
[The statement of Ms. Tennant follows:]
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The Chairman. Thank you very much, Madam Secretary.
Now, Mr. King.
STATEMENT OF J. BRADLEY KING
Mr. King. Thank you, Mr. Chairman, committee members. My
name is Brad King. I am the co-director of the Indiana Election
Division. I would like to take a few moments to discuss
Indiana's success and difficulties with the implementation of
MOVE for the November, 2010, general election.
Even before MOVE was enacted, Indiana had taken legislative
steps to increase the participation of military and overseas
voters, including extended voter registration deadlines, the
use of fax and e-mail for the transmission and receipt of
ballots in some cases, and the extended deadline after the
election to receive ballots.
When MOVE was enacted in 2009, Indiana acted promptly to
implement State legislation that became effective on July 1 of
2010, after unanimous bipartisan support in both Houses of our
State legislature. As a result, no waiver or extension of
MOVE's deadlines was requested by Indiana.
We immediately began working with our local election
officials, in Indiana's case the circuit court clerks, to
provide them with information about their requirements and
responsibilities under MOVE, made a point to mention that any
time two or more clerks were gathered together in conferences
or meetings, in publications, Web training, any form that we
could imagine.
The county election administrators embraced the opportunity
to better serve military and overseas voters by transmitting
ballots by e-mail or by fax, but the 45-day absentee ballot
transmittal deadline proved a problem for just a few counties.
In 2010, the 45-day deadline fell on September 18. Shortly
before that date, the U.S. Department of Justice contacted the
Indiana Election Division for information regarding county
compliance with that deadline. We determined that 89 of
Indiana's 92 counties had complied at that point with the 45-
day transmittal law. Two small rural counties had not complied
and had mailed approximately seven ballots a couple of days
late.
St. Joseph County's situation was a bit more serious. St.
Joseph County is one of our largest counties in population. It
is where the City of South Bend and the University of Notre
Dame is located, and so we anticipated a fair number of votes,
civilian and military overseas ballots, coming from that
county. We were advised that the absentee ballots had not been
transmitted by September 18 by the county because they had not
been delivered to the county by the ballot printing vendor.
Ultimately, these ballots were mailed as late as September
28, meaning 10 days after the 45-day deadline. According to the
St. Joseph County Clerk, the number of ballots delayed was not
large. There were 47 that were requested; and, according to the
Clerk, all of these ballots were returned to the county by
October 14. So, as a result, there is no evidence that any
military or overseas voters were, in fact, disfranchised by the
ability of the county to transmit those ballots by the 45-day
deadline, but it does raise some troubling issues.
When the failure of the ballots to be delivered was
reported to the Election Division, I contacted the vendor and
was advised that the county could have its ballots tomorrow if
it wanted them; and I advised the vendor that, yes, the county
did want them and that we wanted the county to have them. And
so the vendor then worked to provide ballot proofs so that e-
mails could be sent out to individuals who had requested their
ballots in that format and paper ballots provided as soon as
possible. Although, as I said, it did take 10 days after the
deadline for that to be accomplished.
It was also difficult to identify specific county employees
who were responsible for the administration of MOVE's
requirements, and that delayed county progress in compliance
with the statute.
I should note that the county did take the matter seriously
when it was brought to their attention and used Express Mail to
send out ballots to those who had requested them in that
fashion.
Some lessons learned from the implementation of MOVE in
Indiana in November, 2010, would include recognizing the
important role that vendors play in the administration of
elections. In many counties in the United States the technical
complexity of election equipment requires county officials to
rely on vendors to prepare both the electronic versions of the
ballots and the paper absentee ballot system. It appears in the
case of St. Joseph County there was a disconnect. We can't
assume that vendors are going to be informed by their customers
regarding the requirements of Federal law.
Secondly, we need to continue to work with the local
election officials to make certain that there is a continuing
institutional knowledge regarding MOVE. We have turnover in
those offices, and a lesson learned in 2010 may mean nothing to
someone who serves beginning in 2013.
Finally, we need to talk to the voters to make sure that
military and overseas voters have clear expectations about
their rights under MOVE. If a military voter requests an e-
mailed ballot and does not receive it by day 44, the military
voter should be calling the county to ask why the delay.
There is very little that county election officials are
unwilling to do for military and overseas voters, but they can
do very little if they receive a call on election day asking
where is my ballot.
Thank you for the opportunity to address the committee
today.
[The statement of Mr. King follows:]
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The Chairman. Thank you very much.
Now Mr. Stafford.
STATEMENT OF DAVID STAFFORD
Mr. Stafford. Thank you, Chairman Lungren, Ranking Member
Brady, my fellow Floridian, Congressman Nugent, and members of
the committee. I appreciate the opportunity to be here today.
All five branches of the military have a presence in
Escambia County, Florida. Perhaps we are best known as the
``Cradle of Naval Aviation,'' the home of naval flight training
and the storied Blue Angels. And while we are celebrating the
centennial of naval aviation this year, we are also home to the
Center for Information Dominance, the Navy Hospital Pensacola,
and a host of other defense assets and infrastructure. In
short, we are a proud military community; and we embrace those
who serve.
We are privileged to have nearly 17,000 military and
overseas citizens and their dependents as active voters; and as
the son, brother, nephew, cousin, and friend to several current
and former military voters and as the grandson of a World War I
prisoner of war, this aspect of my job is very personal.
Florida has been at the forefront of military and overseas
voting for decades. In fact, we still operate under a 1982
consent decree entered by a United States District Judge, who,
ironically, is my father. The dispute centered on the 1980
general election in which Florida's election calendar resulted
in absentee ballots being mailed far too late.
Ultimately, the State and the Justice Department agreed
that absentee ballots received from eligible voters would be
counted up to 10 days beyond the general election; and, again,
we are still operating under that consent decree today.
Both Federal and State law progressed in the subsequent
decades. Florida altered its election calendar to provide for
more time to mail ballots and removed any notary and witness
requirements. Florida also led in the electronic transmission
of materials to overseas voters and permitted those voters to
return ballots via facsimile.
Congress also helped by expanding the use of the Federal
Write-In Absentee Ballot to stateside military voters and by
adjusting the absentee ballot request line for those FWABs. In
2008, my then colleague from Florida, Pat Hollarn, and her
deputy, who is now the supervisor there, Paul Lux, successfully
conducted the Okaloosa Distance Balloting Project, which
allowed overseas voters to cast a secure ballot via remote
kiosk. This all occurred prior to the passage of the MOVE Act.
As a result, Florida had very little to change to comply
with the MOVE Act. Among the changes, Florida extended to all
elections the 45-day mailing deadline, expanded electronic
transmission of ballots to all absent military voters,
implemented a notification and free-access tracking system,
allowed voters to choose their preferred method of ballot
delivery, and reduced from two to one the number of election
cycles for which absentee ballot requests could apply.
Now this last provision did cause a bit of concern among
some of my colleagues as some preferred to stay at the two
cycle for FPCA and other absentee ballot requests. But there is
not uniformity, there is not agreement among my colleagues on
that point.
And one of the disappointments for me personally in 2010
was Florida's decision not to pursue the FVAP grant for the
Ballot Delivery and Marking Wizard. I was pleased to learn
recently that FVAP intends to make those grants available to
local election officials like myself, and I fully intend to
pursue that. However, their online FPCA and the FWAB are also
good tools for voters.
I would also like to compliment the U.S. And military
postal services for implementing the Express Mail label for
returning military absentee ballot mail, which was effective
for those who took advantage.
Now while ballot delivery has improved significantly, we
still rely on mail return for the bulk of UOCAVA voters.
Although fax return is allowed in Florida, in my opinion it is
a dying technology and is difficult for many overseas voters to
access. Many UOCAVA voters don't understand why they can return
a ballot by fax but not by secure e-mail. Now we recognize
there are valid security concerns, but we have the best and
brightest minds in the world here in the United States,
including many in the ranks of our military and civilian
government. We can and must figure out a better way forward.
Now, I believe the best path is through pilot projects
similar to the Okaloosa Distance Balloting project. Through
additional FVAP grants and similar programs, innovative
solutions to some of these centuries-old problems can be found;
and these can be demonstrated, if necessary, through test
elections so any shortcomings can be identified outside an
actual live election.
We must also do more to build awareness of the existing
tools and procedures that help our military and overseas
voters. Through the use of Web sites, e-mail, social media, and
other innovative techniques, much of the information needed can
be communicated directly to the voter. FVAP, the Overseas Vote
Foundation, election officials, and others are already making
great strides on this front, but more must be done.
However, the voters share some responsibility themselves
for keeping us informed of any changes of address or status or
familiarizing themselves with procedures in their particular
home jurisdiction and for notifying us of any problems before
it is too late for us to respond. Far too many ballots are
returned undeliverable, which ultimately cancels their request.
And, in addition, as UOCAVA voters must now actively request
ballots for each election cycle, a concerted effort to
communicate this to voters is essential.
Our Web page includes an excerpt from President Truman's
1952 letter to Congress imploring Congress on behalf of those
in the Armed Forces to ``make sure they are able to enjoy the
rights they are being asked to fight to preserve.''
In closing, I applaud Congress for continuing to address
these concerns by passing the MOVE Act. I am very proud of
Florida's history of serving our military and overseas voters
and look forward to continued progress at the Federal, State
and local level. Thank you, Mr. Chairman.
[The statement of Mr. Stafford follows:]
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The Chairman. Thank you very much, Mr. Stafford.
Now Mr. Jones.
STATEMENT OF RICK JONES
Mr. Jones. Chairman Lungren, Ranking Member Brady, members
of the committee, it is a pleasure to be before so many of the
champions who have worked so hard to ensure that those who
protect us have their vote protected. It is a delight to be
here, sir, and represent the Alliance for Military and Overseas
Voting Rights.
I am a co-chairman of the Alliance, and a legislative
director for the National Association for Uniformed Services.
The Alliance formed in 2009 to advance several principles.
Among those principles: to provide adequate time for receipt,
completion, and return of an absentee ballot; to ensure States
work toward a more standardized procedure for registering and
allowing votes from overseas voters; and to work with Congress
and the States to expand and accelerate research in pilot
projects to find technological solutions that would help to
secure, make more efficient, and make more convenient the
process of voting. The election system as well should serve
both military voters overseas and civilians who live overseas.
The Alliance has worked for passage of MOVE, and we are
very pleased to see it move in the way it has over the past
year.
No piece of legislation is perfect. We firmly believe the
MOVE Act is a positive measure that has given us a strong
advance towards addressing all the principles that we hold as
core values.
As you know, Mr. Chairman, there are several key provisions
of this bill.
First of all among these is the acceptance of technology
for the distribution and delivery of blank ballots and for
ballot tracking systems to be put in place.
A second key provision of the MOVE Act is to allow e-mail
communication with voters and their home precincts.
Election transmission of blank ballots 45 days in advance
is perhaps the most key. It assures, in large part, that the
ballots can be secured, completed and returned by those who are
overseas and involved in sometimes very hazardous work with
their attention on many other issues.
The MOVE Act has moved in the right direction. We have
already discussed many of the DOJ concerns. DOJ could have
moved more aggressively in several areas. Their programs and
process could be improved. But we also know that the Act has
only been in place for only 1 year, and we hope that we have
learned a great deal out of the 1 year that we have worked on
this, so we are well prepared for the Presidential election in
2012.
One of the main goals of the Alliance is to see States
adopt laws to facilitate overseas voting and to provide
adequate time to receive, complete, and return those ballots.
As you are familiar, one of our Alliance members, the
Overseas Vote Foundation, recently held a summit; and during
that time they released a survey that they had taken on the
2010 election. You had mentioned some of these survey results
in your opening remarks.
More than four-fifths of voters, 82 percent, received the
ballot they had requested. Now that is a 5 percent increase
over 2008. Fewer voters reported receipt of a ballot too late
for successful return. Although one-third reported difficulty
in 2010, more than half reported problems in 2008, so that is
also moving in the right direction. All 50 States provided
electronic transmission of blank ballots. That is up from 20
States in 2008 and demonstrated a direct response to the MOVE
Act.
However, voters using electronic ballot, strangely, were
less likely to receive their ballot, it was reported, by this
OVF survey. Of the 18 percent of voters who did not receive
their ballot, nearly 22 had used the electronic method for
their request.
As the chairman knows, the Federal Voting Assistance
Program, a Pentagon program which helps manage the election
process for military personnel and other overseas voters,
reported last week that they had not yet gathered all the
information they need to assess fully the 2010 election. They
did, however, point out that one of the major failures is in
ballot return. For the general public, the ballot return on
absentee ballots runs at about 90 percent. For Uniformed and
Overseas Citizens Absentee Act voters, the ballot return falls
to about 67 percent. That is quite a drop.
And one of the things that we herald in the Act is the
Express Mail delivery of return ballots. Though anecdote is not
data, one story helps explain how comfort and confidence can be
found in the use of Express Mail. An absentee voter recently
reported that, prior to going overseas, he had worked directly
with the head registrar of the voting precinct and applied for
the absentee vote using her assistance. When overseas, the
voter completed the ballot, returned it by Express Mail,
tracked the ballot, and the voter was able to read confirmation
of receipt, and the receipt was signed by the very individual
he had worked with in applying for the ballot.
Now, that is a good confidence that the ballot had been
returned. So the Express Mail is a significant improvement
under the MOVE Act.
Sir, the fix remains timely access. As Harry S. Truman said
60 years ago, it is the least America can do to protect the
right to vote for those who serve in uniform to protect us.
Again, we thank you very much for this opportunity to
testify.
[The statement of Mr. Jones follows:]
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The Chairman. Thank you very much for your testimony.
Mr. Eversole.
STATEMENT OF ERIC EVERSOLE
Mr. Eversole. Thank you. Good morning, Mr. Chairman,
members of the committee. Thank you for allowing me to testify
regarding the implementation of the MOVE Act in the 2010
elections.
As we have heard today, the MOVE Act was a tremendous
undertaking for the States and for the local election
officials; and one thing is clear at this point. A vast, vast
majority of the States and local election officials did a
tremendous job in implementing the MOVE Act. They worked long
hours to make sure that our servicemembers would have a better
opportunity to vote, and some of the fruits of those efforts
are really evident in some of the data that is starting to come
back from the Election Assistance Commission.
I took a quick look at the data, and one thing that I
noticed very clearly from some of the early results is the
amount of ballots that are rejected for being returned late
significantly decreased. In other words, more ballots made it
back on time and more ballots were counted. So that is a big
win for our servicemembers.
There were, however, some significant disappointments
during the 2010 election; and at the top of the list is the
voting section in the Department of Justice and its efforts to
enforce the implementation of the MOVE Act.
Now, we have all heard time and again that the voting
section brought 14 cases or 14 actions in 2010. But that
number, without any context, doesn't have a lot of meaning. It
is somewhat like a football coach that keeps talking about the
fact that they scored 14 points in the big game, but what he
doesn't tell you is the fact that there were three or four
fumbles that cost them the game. And it is those fumbles that
we have to get to in order to ensure that we have greater
success in the 2012 elections that are quickly approaching.
The fact is, and there is significant evidence of this, the
Department of Justice, the voting section, was very slow to
react to the MOVE Act.
Mr. Perez talks about the fact that they issued a letter in
April of 2010. Well, that is 6 months after the MOVE Act was
passed; and the damage there is the fact that many States had
already gone through their legislative cycles at that point. So
the possibility of getting real legislative reform by April of
2010 was significantly diminished.
Another thing that has been talked about was the guidance
to the States on the waiver procedures. Mr. Perez is correct.
FVAP has the responsibility to issue those waiver procedures,
but with the guidance of the Department of Justice, and that
guidance never came. There are several news reports that
indicate that the draft guidelines were sent to the Department
of Justice, and there never was a written response to those
guidelines. And the waivers weren't issued, and it had a
significant impact on States asking for waivers.
Wisconsin is a classic example. They ended up being sued by
the Department, but Wisconsin makes it pretty clear they would
have never asked for the waiver if they would have had clear
guidelines, and those guidelines were not issued.
And even when the Department brought cases, many of these
cases, like the one in Illinois, were brought 3 or 4 weeks
after the deadline for mailing out ballots. And, as a result of
that, those ballots were sent out 25 days before the election.
Another important fact there is that there is a substantial
body of evidence that says that if you mail ballots 25 days
before the election by First Class mail, a certain percentage
of those ballots will not make it to the troops on the front
lines.
At the very least, both in New York and Illinois, the
Department of Justice should have required express delivery.
They didn't. It is a failure. It cost votes.
But aside from the delay issues, there is a more
fundamental question that is very important that no one has
mentioned here today, and that is the insufficiency of some of
the agreements. I have talked about Illinois and New York, but
I want to talk about Maryland.
In Maryland, Maryland had applied for a waiver application
and decided better of it about a month before, or a month
before the deadline, and called the Department of Justice and
inquired whether they could simply send out a Federal-only
ballot and deprive the servicemembers of their State rights,
and the Department of Justice approved that.
So I don't--you know, and that is part of the problem here.
Now, my organization ultimately sued the State of Maryland
based on the advice that they got from the Department of
Justice. A Federal district court judge found that the State of
Maryland had violated their fundamental rights; and that
ultimately ensured, via the judge's court order, that 600
military and overseas voters would be able to vote but for the
actions of our organizations and the Federal court. But
certainly they would have been disenfranchised based on the
Department's efforts.
That really gets to really my last point, and one thing I
would ask the committee to quickly consider, because my time is
up.
Senator Barrasso and Senator Cornyn issued a bill yesterday
that creates a private right of action so that servicemembers
can defend their own rights in Federal court. Congress recently
passed, I think last year, a bill that gave servicemembers
expanded rights to bring cases in the servicemen--the SSCRA or
the Soldiers' and Sailors' Civil Relief Act, and there has been
some very positive----
But our servicemembers ought to have the ability to fight
for their own rights in Federal court and not have to rely upon
the Department of Justice to bring those cases.
Again, thank you for holding this hearing. I look forward
to your questions.
[The statement of Mr. Eversole follows:]
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The Chairman. Thank you very much.
We will now go to our round of questioning. I will start
with 5 minutes.
First of all, I want to thank those of you representing
West Virginia and Indiana and Florida. It appears, from what I
have heard read and what you have said, that an excellent
effort was made in those States to comply with the law. It
looks to me like we are going to have to have a follow-up
hearing on representatives from New York and Illinois to tell
us why it was so difficult.
The major sponsor of the bill on the Senate side is Senator
Schumer from New York. I find it--well, I find it difficult to
believe that the people in New York would not have understood
that that was something--and I have known Chuck Schumer for a
long time, and I have never known the press unable to find him
to be able to hear what he has to say. I am just surprised that
election officials there had such difficulty.
Let me ask you, Mr. King, I actually went to school at
Notre Dame in St. Joseph County, so I am surprised that that
was the county that seemed to have difficulty, and you had to
use a very sophisticated means of communication, called the
telephone, to talk to the vendor.
I mean, what happened there? Someone just asleep at the
switch? What occurred?
Mr. King. Yes. Thank you, Mr. Chairman.
It is puzzling because St. Joseph County has a large
professional, local election staff. It is clear that whether
this was the result of using a vendor, perhaps, for the first
general election, there had been a change in the ballot
printing vendor used. But it was clear, I think, that there was
confusion and ambiguity at both the county election office and
with the vendor regarding the importance of MOVE and the
importance of deadlines. We, in the election administration
world, live and die according to deadlines.
The Chairman. Would they pay attention to it if individual
members of the Armed Forces had the private right of action?
Mr. King. Yes, I believe they certainly would.
The Chairman. Does anybody object to that here?
Mr. Eversole, you have a bit of a contrary position here to
that of Mr. Perez, who has told us that they made it a priority
in his section. They had 20 litigators, I believe, assigned to
this. He talked about how they had contacted jurisdictions when
they knew there was a problem or thought there may be a
problem.
Do you find that lacking or was there lacking in follow-up
after initial contact? What I mean by that is you can make
initial contact--well, excuse me. He did say that they would
take in information they received from others to sort of follow
up or verify what they had heard from local election officials.
Do you find that to be the case or what more could he have done
or they should have done?
Mr. Eversole. Well, I think that one of the issues here is
the way they approach investigations which, quite frankly, is
different than any other way that they approach other voting
rights investigations.
In most cases, you call the county to find out if they have
complied with the law, because the county is the one that is
responsible for it. They certainly do that in language minority
cases. And so in the context of voting cases, the general
procedure, unless--and Mr. Perez's testimony, I think, was
pretty clear on this, that they contacted the counties on
occasion when they got advice that a particular county had
violated the MOVE Act.
But their other investigative technique, when they didn't
get a specific complaint, was to simply call the State. And the
result of this kind of contacting the State, who then has to
contact the counties, that is a roundabout way of getting the
information that you ultimately need and that delays a timely
resolution of it.
The Department of Justice has now been burned on this a
couple of times. In 2010, they were burned on it by Illinois.
There are plenty of e-mails saying that the Department of
Justice contacted the State. The State said we are good to go.
It never happened. The same thing, though, happened to the
Department of Justice in 2008 in the Virginia case, which it
didn't discover until 3 days before the election and after
Senator McCain or the McCain campaign had brought the lawsuit.
So there is a failure there. It has to be improved. They
have to call the counties.
The Chairman. Maybe we need to specify that in the
legislative language, and maybe we need to take a look at that.
Mr. Jones, in your written testimony you say, one out of
every four ballots requested by military personnel and other
Americans living overseas for the 2008 election may have gone
uncounted, according to findings being released to a Senate
hearing Wednesday. Can you elaborate on these findings?
Mr. Jones. The findings refer to 2008 which was a part of
the basis of your action and the actions of your fellow members
to pursue the MOVE Act.
We don't have an accurate count at the present as to how
many people who requested a ballot--we don't have the ratio
now, but we do know that perhaps as many as 370,000 military
voters did not have a ballot returned.
I spoke of the 67 percent failure of ballot return. We
don't know exactly the reason for that. It could be anything. I
mean, for example, Eisenhower didn't make his first vote until
he was running for President. So there may be a culture still
within the military of attending to military items and not
necessarily taking election action. They might have requested a
ballot and not returned it.
But we really don't know exactly what the problem is there,
but we do know the MOVE Act has taken us in the right
direction. It does offer a better door opening, and it does
offer a better opportunity to pass through that opening so
these folks can have a ballot counted if they choose to vote.
The Chairman. Thank you very much. My time has expired.
The ranking member is recognized.
Mr. Brady. Yes, Mr. Chairman, thank you.
What I am confused about, Madam Secretary, how many
counties are in West Virginia?
Ms. Tennant. There are 55 counties in West Virginia.
Mr. Brady. Mr. King, how many in Indiana?
Mr. King. There are 92 counties, sir.
Mr. Brady. Mr. Stafford, in Florida?
Mr. Stafford. Sixty-seven.
Mr. Brady. I would bet that my math isn't good at all, but
we will say 250, close to it, what you just gave me. That means
like just in the three States that are here today there are
three different kinds of pieces of literature going out to our
servicemen and women that look different, would not actually
have different names on them, but, you know, different vendors
have put out ballots in different ways.
So that itself probably confuses them because--Madam
Secretary, your husband will be over there, and I hope, God
bless him, he gets back safely, but he will be next to somebody
else that will be comparing each other's notes and about
ballots. That confusion is hard enough to deal with, but my
problem is the timing.
I understand the back end. I understand it doesn't do any
good to vote for somebody before an election was certified. It
is too late. But the front end, why 45 days? I know when my
election is, I know when my primary is, and I know before my
primary when my general election is, and that is way before 45
days. Why are we not holding our men and women that are
supporting us and put in harm's way to the same standard that
we hold our regular citizens? I don't think they are regular
citizens. I think that they have a kind of special, you know,
consideration we need to give them.
But why the 45 days? I noted I have an election primary in
May, but I also know November 8 is my general election. That is
6 months. That is not 45 days. Why can't we work something
between the 6-month period to be able to ensure that they get
these ballots and give them more time to get them back to us?
Is there any reason why that--yes, sir.
Mr. Stafford. Two reasons, speaking on behalf of Florida.
One, you have got qualifying that occurs. You have to know who
is actually on the ballot before you can send the ballot to
those voters.
Mr. Brady. I know that is 6 months before a general
election.
Mr. Stafford. It depends from jurisdiction to jurisdiction,
from State to State.
Mr. Brady. I understand some primaries are shorter.
Mr. Stafford. Correct. And then you have--after the primary
election, you have to then redo your ballot to prepare your
ballot for the general election. Because, obviously, you are
not going know who your Senate--your Republican Senate
candidate and Democratic Senate candidate is until after the
primary election. So that takes time. Once the election is
certified, then ballot preparation begins all over again.
Mr. Brady. When is Florida's primary?
Mr. Stafford. It is the end of August. I don't have the
specific date in front of me.
Mr. Brady. August and your general is in November.
Mr. Stafford. Yes, sir.
Mr. Brady. So 45 days actually takes you right up to the
deadline, almost?
Mr. Stafford. We actually had to go in and they adjusted
the primary back a week to provide for more time for us to----
Mr. Brady. Is this the waiver you would need?
Mr. Stafford. No, sir, this was done prior----
Mr. Brady. And there are other States I am sure that fall
into that category, but the ones that don't--I am confused--I
am not confused. I am stuck on this 45 days. Why is this just
45 days when the State of Pennsylvania--I know 6 months, 6
times 3, 180 days, that, you know, I know who our people are.
Why couldn't we get it to our military people?
Ms. Tennant. If I----
Mr. Brady. I mean, if we know and States that do know, why
don't we mandate that they get it to them so at least you have
some--I don't know how many throughout the country are that
closed in on primaries as opposed to going to generals. I know
some are not. I know New York is. I know a lot of them are.
Yes, I am sorry. You were going to say something.
Ms. Tennant. Well, if I may add to the conversation,
because there are deadlines and requirements that lead up to an
election for a vendor to be able to print the ballots or
program the ballots, also.
In West Virginia, we have an August 1 deadline because we
also have independents that we have to allow access to the
ballot. As chief elections officer, that is a priority for me
in allowing others to get on the ballot. And they have until
August 1 to be able to get enough signatures to have access to
the ballot. So that is one requirement.
We in West Virginia also made it 46 days instead of 45
days. And if you are asking for suggestions on the MOVE Act,
you might want to move it to 46 days because 45 days before a
Tuesday election is a Saturday. According to West Virginia
State code, if something happens on a Saturday and is moved to
a Monday, so that is why we moved it to 46 days to have a
Friday as the deadline.
So it is a work in process, and it is part of the
regulation and deadlines and timelines that we have.
Mr. Brady. Okay. So to ask all of you--and I won't get an
answer. I think my time will probably run out. But if you can
get back to me. What could we do? I would like to know what you
think you could do to make this process work, because I am
offended that our men and women can't or don't have the right
or don't have the ability to have the right to vote.
And what can we do in legislation? And we have a chairman
that is ready and willing and able to put whatever he needs to
put in legislation and argue that point, and I am happy to
agree with him. What can we do to give it any kind of teeth to
make this absolutely work for our men and women that are in
harm's way?
My time is up, but if you can get back to me with that on
both of them and let me know what your ideas would be, I would
appreciate that. Thank you and thank you for your time here
today.
The Chairman. Again, if you could submit some responses to
that in addition to your testimony, we would certainly
appreciate it. There may be other members that will submit
specific written questions to you, and we would ask that you
respond to that in a timely fashion as well.
[The information follows:]
The Chairman. The gentleman from Florida.
Mr. Nugent. Ms. Tennant, thank you so much for the service
of your husband. I certainly know what it is like to have a
family member deployed.
In regards to online voting, could you explain that a
little more in regards to how you were able to keep the
security level up? Because, obviously, the District of Columbia
had a debacle in regards to online voting.
Ms. Tennant. We get that question a lot now, especially
with what happened in D.C.
The difference that we had, we used two well-known vendors,
Seytl USA. And Everyone Counts, Incorporated who do online
voting.
The difference between West Virginia's pilot program that
we used for our primary election, a special election that we
ended up having, and then for our general election was
different than the D.C. Board of Ethics and Elections because
they did an in-house program that they developed in house, and
they used open source technology, and then on the day of their
public testing they allowed folks to take a look at it and
request credentials to enter into the system and test that.
So theirs was open source. They opened it up to the public,
where we kept it secure, obviously, and, you know, continued to
secure it through encryption methods similar to what the
military might use, through unique personal identifiers,
through the one-on-one relationship that the voter had with the
county clerk and able to use the passwords, the encryption, the
personal identifier and those means to have ours secure and
still remind folks that it is a felony to attempt to interfere
with an election.
Mr. Nugent. I would hope, at least on our military that is
currently overseas and particularly those that are like in
Afghanistan or Iraq--you know, my son would go out on missions
15 days at a crack. You don't have access. And so, obviously,
if we could do online voting just for our military, through
DOD, that would be a huge--I would think a huge step in the
right direction of getting back a vote so it is there on time,
so it actually counts.
You know, Mr. Eversole, I appreciate your comments,
particularly as it relates to the Attorney General's office,
Mr. Perez. I felt that the answer I got as it related to the
regulation was somewhat misleading; and so I would like you to
expand upon that particular issue, particularly with regard to
DOD requesting guidance from DOJ and not getting it.
Mr. Eversole. You know, all I can tell you is, because I
obviously wasn't in the room, but numerous stories have been
published and in the papers about some of the difficulties that
DOD had with receiving timely guidance from the Department of
Justice and, in particular, the voting section.
In fact, notwithstanding what Mr. Perez said back in
February, some of his career attorneys spoke at the National
Association of Secretaries of States meeting. They specifically
told the States that they were in the process of issuing
guidance that never came, and there is a public record of this
in the minutes that is very telling.
But one of the other things that was very disconcerting,
because it set the tone, in my view, on compliance, was that
the voting section career attorney specifically got up after
the director of the Federal Voting Assistance Program and
disagreed publicly with his analysis of the law.
So, from the very get-go, you have the Department of
Justice providing input in a public setting that, quite
frankly, is contradictory or at least not the whole context
that Mr. Perez spoke about during his testimony. And that
discussion, in my view, at the National Association of
Secretaries of State, 4 months after the law was issued, where
they still hadn't agreed, set the tone for enforcement
throughout the rest of the 2010 elections.
Mr. Nugent. My concern at this point is as it relates to
redistricting, what is going to happen in the 2012 election. I
would open that up to any person.
And, Mr. Stafford from Florida, I certainly appreciate it.
My son did Ranger training in the swamp portion. He had great,
comments about the swamp in Eglin Air Force Base.
Mr. Stafford. Over at Eglin.
Mr. Nugent. Yes.
Mr. Stafford. You know, it is funny you just mentioned
that. I was just thinking about that very--where the Justice
Department again will play a very important role, particularly
in States like Florida where we are--we are not a pre-clearance
State, but since we have pre-clearance counties we are, in
essence, a pre-clearance State. So the Justice Department will
be involved in that aspect.
And there is a great concern, I can tell you, among the
State legislature there that ultimately our districts are going
to end up--congressional districts are going to end up in the
Federal court system and that is ultimately going to, you know,
be the final arbiter of what the districts look like. And that
process takes a tremendous amount of time. So that, as far as
calendar, Congressman Brady, can throw everything into the mix.
And then you are relying on Federal write-in absentee
ballots, things along those lines. So that something is that
definitely I would think would be on the committee's radar
screen looking forward.
The Chairman. The gentleman's time has expired.
The gentlewoman from California.
Ms. Lofgren. Thank you. Mr. Chairman.
I wanted to cycle back on the Internet voting issue,
because I come from Silicon Valley. I am, you know, into
technology, but I also understand the risk at times, and the
fact that a proprietary system is used, instead of open source,
really has nothing to do with the security issue.
I would like to ask unanimous consent to put in the record
a report that I received when I chaired the Election
Subcommittee from voter action that reviews some of the
technology issues on Internet voting.
Specifically, the Department of Defense 6 years ago
commissioned themselves, a panel of experts, to review this
possibility. Obviously, they want the troops to be able to
vote; and they determined that it was not possible to secure
the privacy, the security, or the accuracy of votes over the
Internet. And it is not the software; it is the architecture of
the Internet that they fingered.
The Government Accountability Office in 2007 did a study
and found that Internet voting is most vulnerable--this is a
quote--to privacy and security compromises and that available
safeguards may not adequately reduce the risk of compromise.
And then, in 2008, NIST, which is the gold standard in the
Federal Government for technology analysis, found that the
technology that is widely deployed today is not able to
mitigate many of the threats to casting ballots on the Web.
And then, in 2008, 30 leading computer science experts and
professors at major universities signed a statement asserting
that until serious, potentially insurmountable technology
challenges are overcome, permitting the Internet to be used for
public elections is an extraordinary and unnecessary risk to
democracy.
Ms. Lofgren. So this is pretty serious stuff that they have
talked about.
Now, I would hope--you know, the District of Columbia was
going to do an internet voting, and I think they are glad that
they asked a Web team to come in. Because when they had the
University of Michigan computer science team come in, they were
able to get into their system within 36 hours and change votes.
I mean, it was an experiment; they didn't actually affect the
election, but they were able to change votes and to change the
whole system. So this is really not something that is ready for
prime time.
And I would hope that any jurisdiction that is using
Internet voting brings in some Web teams to hack your system,
because the last thing we can afford as a Nation is suspicion
that the system itself is not yielding actual results. I just
think to undercut the confidence that Americans have in the
integrity of the system would be devastating. So that is me on
my high horse.
The Chairman. Without objection.
Ms. Lofgren. And I will submit this for the record.
[The information follows:]
Ms. Lofgren. I wanted to ask Mr. Jones a question.
I was interested in your testimony about the, referring to
the UOCAVA survey report where voters who use electronic
methods to request the ballot were actually less likely to
receive a ballot. Do we have any idea why that would be the
case?
Mr. Jones. Unfortunately, we don't. But that was a result
of the survey that was put out by OVF, which is one of our
partner organizations in the Alliance. In looking at the detail
of that survey, all we have essentially is the number of people
surveyed, the scientific portion of it, whether or not it has
some science to it. And it seems to check out on all those
sorts of regards. But this is just one of those surprising
elements that came out in that survey.
Ms. Lofgren. Well, I am just wondering if maybe after the
hearing, I know my time is almost expired, if any of the
witnesses have thoughts on how we could improve that. Because I
really do believe that using technology, at least to get the
ballot out there, is going to end up being a very important
element to getting timely information and access to our
servicemen and women. But this is a very disturbing finding.
Mr. Jones. Some of the other things that may help is that
the registration will be a single cycle registration for voting
in the future. And some of these registrants had registered two
cycles before so there may be a lot of movement.
Ms. Lofgren. We were working on an Internet registration
bill with the secretaries of state and registrars and voters to
try and facilitate, obviously for everybody, but that would be
particularly important for servicemen and women who might not
have registered before they left. So maybe that is also a part
that we could look at.
Mr. Jones. I couldn't agree with you more about the pilot
projects for live voting. I mean, the Food and Drug
Administration won't allow experiments on humans until they
have been proven to have worked on some other area. So these
pilot projects ought to be worked on other than real elections.
Ms. Lofgren. Well, I think so. And I will just close, Mr.
Chairman. Google is in my county, and they have some of the
smartest technology people and scientists and computer
scientists I have ever run into with strong encryption, and
they were unhappy that their system was hacked. And they made
some corrections subsequent to that. Technology is a wonderful
thing, but we need to also understand our vulnerabilities.
And I yield back, Mr. Chairman.
The Chairman. Thank you.
And I hope the members of the panel understand that in
addition to the testimony that you have submitted, we are eager
tor hear any other suggestions you might have that will help us
in our pursuit of perfecting this law.
The gentleman from South Carolina is recognized for 5
minutes.
Mr. Wilson. Thank you, Mr. Chairman.
And Ms. Tennant, I want to thank you for your husband's
service. I share your appreciation of persons in the military
service, as a veteran with four sons who are currently serving
in the military, three who served in the Middle East. Thank
you.
And then I share the concern of Congressman Nugent. There
are concerns about delay next year with redistricting. I--for
our election commissioners--I have absolute faith with
oversight by the chairman, but we are going to monitor
redistricting. You have new lines; Federal, county, municipal,
one man/one vote. You have the potential for split counties,
split precincts, total chaos, new voter registration cards,
litigation, and so there is going to have to be a lot of
planning, and so I wish you well. But we know that is coming
and so we need to be prepared so that that is not a reason for
delay of getting ballots out.
I want to thank Mr. Jones for being here and the military
alliance, or the Alliance for Military Voting. The National
Association for Uniformed Services has been a champion for
military families and servicemembers and veterans. With that,
Mr. Jones, you indicated that 370,000 ballots possibly were not
returned. Do you have remedies that could assist on this?
Mr. Jones. We are working with the Federal Voting
Assistance Program. The director is also very concerned about
this area, as are all of the members here. We do want that
corrected. We don't quite understand the failures there,
particularly as compared to the general public in absentee
balloting. We will be looking into it, sir.
Mr. Wilson. Well, again, we can count on your organization.
We appreciate it.
And Mr. Eversole, the information you brought is really
disturbing--that the guidelines were not provided with the
Federal Voting Assistance Program waiver delays. You identified
Wisconsin and Maryland. And thank you for bringing the lawsuit
successfully in Maryland. That was just so important. But in
particular, other States, Illinois, New York, what was the
problem in those two States?
Mr. Eversole. Well, in Illinois, they essentially gave the
counties a pass, because in the 57 counties that followed the
law, the military voters in those counties received 59 days to
receive and return their ballots. They got 45 days up front
under Federal law, and they got an additional 14 days after the
election to have those ballots returned. The Department of
Justice used that 14-day State law as an excuse for the
counties that didn't send out the ballots in a timely manner
and basically said, well, yeah, they didn't send it out in a
timely manner, so they sent it out 10 days late, but we will
just eat up 10 days of this State law so that you only get 50
days to receive and return your ballot.
So, again, there is an equal protection issue there because
some servicemembers in some counties are getting 59 days; in
other places in the same State, as a direct result of the local
election official's unwillingness to follow the law, those
servicemembers got substantially less. And you know, from a
practical perspective in Illinois, what kind of message does it
send if the local election official willingly violates the law
and there is no real remedy for the servicemembers?
I think Mr. Brady was talking about the carrot and the
stick. There was neither a carrot nor a stick in that context;
they simply got a pass.
In New York, the biggest problem there was the fact that
New York in many instances sent out ballots somewhere between
28 and 22 days before the election. As I tried to mention in my
testimony, there is pretty well established evidence that it
takes at least 30 days for a ballot to make it to a forward
operating location. And in fact, the Military Postal Service
Agency director testified at the Overseas Vote Foundation
conference, and he said that to get to some ships using express
mail delivery, it was taking more than 20 days. And so in a
situation like New York and in Illinois, they should have
required express delivery, especially if the person is located
in an overseas location and serving this country in a war zone,
and that didn't happen.
Mr. Wilson. And you indicated equal protection and also
prioritization. Congressman Schock brought to our attention
that the ballots were personally delivered to the Cook County
jail but were not provided to our military servicemen.
Mr. Jones----
Mr. Jones. My one comment, we had heard anecdotally that
one of the concerns in New York--of course, Mayor Bloomberg was
very upset with the process there. But one of the questions
was, do we comply with the law, the MOVE Act, or do we save
money by not issuing the ballot in a timely fashion? So there
is a compliance-versus-cost issue in some of these late
counties.
Mr. Wilson. Thank you again.
And I look forward to working with the chairman in regard
to possibly a private action.
The Chairman. Well, I would just say compliance and cost,
the cost of our military service is very dear.
I know you are not saying it, but we ought to extend every
effort that we can to make sure they have the right to vote.
And I will be working with the ranking member to see if we can
delve a little bit further into the question of what happened
in those two major States. The gentlelady from California, our
clean-up hitter to bring us on home.
Mrs. Davis. Thank you, Mr. Chairman.
I hope I can clean this up.
I appreciate it, and I know that the committee is very
concerned about it. The equal protection issue is very
important when it comes to voting, and I know the chairman
knows that I have been a strong advocate for this. As we look
at some of the differences and the things that we actually can
change under the Constitution that would work better, not just
for our servicemembers, but for all people who vote in this
country and want to vote in this country. We know that there
are circumstances when people are disenfranchised for no fault
of their own, and that is a problem.
I wanted to turn to the tracking issue for a minute because
Mr. Stafford and Mr. Jones both mentioned that. And we know
that in California, and again the chairman is well aware of
this, that all counties now have established absentee voting,
absentee ballot tracking systems. And the system is
inexpensive, it works very well and it really gives people a
great level of confidence, which might be why we have such a
large number of people who actually request a ballot, or even
permanent absentee ballot voters who return their ballots, and
then they contract them. They know when they arrived. They know
when they were counted. And that gives people really a whole
different feeling about their ability to vote. And so we think
that is important for our servicemembers as well.
That was built into the MOVE Act, but only in a limited
way. And so I wonder if you could speak to that a little bit.
The Voter Foundation Report that came out said only about 10
percent of local election officials reported using the tracking
system; only 10 to 20 percent of UOCAVA voters reported using
the system; and many said that they didn't even know that
tracking was possible. So what is it? I mean, why do election
officials not advocate as strongly as perhaps they could for
such a system.
In San Diego, when we started--it is a feature that
received 98,000 hits before our last election. So, clearly, it
works for people. Do we need more enforcement of the provision?
What would make a difference? And do you think that the
provision of the tracking system, the MOVE Act, could and
should be expanded to the civilian populations as well? Would
you comment?
Mr. Stafford. We do expand it to the civilian population in
Florida. I think perhaps the biggest detriment is there is just
a lack of awareness out there. Now, as I said in my testimony,
I think a much better job needs to be done to be able to
communicate to the voters what these tools are. For instance,
the ballot--talking about the delivery, I mean, there are these
ballot--I don't know if you all are familiar with the Wizard,
FVAP Wizard, and each State had its own ability to develop it
for their own particular state using money from FVAP.
And it basically is like a secure link. It goes to the
voters so there is not actually transmitted material. They go
up to this link. They put their information in, they get their
particular ballot, fill it out online, print it and send it
back. So the communicating to the voter is really instantaneous
once that information is prepared by the supervisor of
elections or the equivalent in their particular jurisdiction.
So I just, quite honestly, think it is a lack of awareness
of the tools that are out there. Because we saw, I think--I
don't know what the numbers look like, but we just didn't get a
great number of----
Mrs. Davis. Whose job is that?
Mr. Stafford. Well, I think it is everybody's job. I think
it is the chief election official in your particular State,
certainly it is the jurisdiction who owns that voter, if you
will, to be able to get that material; I think it is the
military's job. We have, as you all know, voting assistance
officers. We have some that do a fantastic job and others that
don't. And we understand that they are secondary or tertiary
duties for these folks that have many, many other things,
arguably more important, in their day-to-day business than
doing this. But again, with the speed of instantaneous
information and cost-free getting this information out, I think
everybody can and must do a better job. Because I think if we
got utilization, full utilization or fuller utilization of the
tools that are already available in many States and
jurisdictions, a lot of these problems would be addressed.
Mrs. Davis. Thank you.
If I may, Mr. Chairman, because I know that time is running
out. Just very quickly, and I will submit this for the record.
[The information follows:]
Mrs. Davis. I have a Marine fellow on my staff who had a
great suggestion where we would put--taking the military
member's LES, their Leave and Earnings Statement. They receive
that every month. They look at it, of course, because it is
their pay stub. And you could have some simple voting
information on that that would direct them and help them to be
reminded about their ability to vote absentee and to get that
information.
Because there still is, as I mentioned earlier, there still
is a tremendous amount of confusion about deadlines. And if
that deadline were on there and the fact that that person had
the ability to just move on and get that information within a
timeframe would be very, very helpful.
I don't know, Mr. King, did you want to add something real
quickly.
Mr. King. Thank you, Representative, yes. In terms of
information to voters, Indiana law provides that every absentee
voter receives a document called the Absentee Voter's Bill of
Rights, which sets forth important information for the voter
and their recourse if an absentee ballot is not delivered. And
it seems that would be a good mechanism to inform absentee
voters about the ability to check the status of their ballot.
Mrs. Davis. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
This concludes our hearing today. When I found out I was
going to have the pleasure of being chairman of this committee,
I announced that we were going to have this as our first
hearing because I thought there is nothing more important than
us protecting the rights of voters, particularly those serving
us around the world. And I want to thank my colleagues on both
sides of the aisle for their bipartisan spirit in which they
have dealt with this issue and the bipartisan spirit I think
that we will go forward on this to try and remedy some of the
shortcomings that we have found, and also find why maybe some
people didn't think we were serious when we enacted the law the
first time around. We will make sure that that seriousness is
duly noted.
As I mentioned before, the hearing record will remain open
for 5 legislative days so that members may submit any materials
they may wish to be included therein.
And again, you may receive some written questions from some
members, and we would ask your help in getting that back to us
as soon as possible. Thank you very, very much.
[Whereupon, at 12:50 p.m., the committee was adjourned.]
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