[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




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                   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:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    
    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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