[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
  VOTING WRONGS: OVERSIGHT OF THE JUSTICE DEPARTMENT'S VOTING RIGHTS 
                              ENFORCEMENT

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

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 18, 2012

                               __________

                           Serial No. 112-114

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                    TRENT FRANKS, Arizona, Chairman

                   MIKE PENCE, Indiana, Vice-Chairman

STEVE CHABOT, Ohio                   JERROLD NADLER, New York
J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT, 
                                     Virginia

                     Paul B. Taylor, Chief Counsel

                David Lachmann, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                             APRIL 18, 2012

                                                                   Page

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution...................................................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     2
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     5
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Ranking Member, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution........     6

                               WITNESSES

Cleta Mitchell, Partner, Foley & Lardner
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
M. Eric Eversole, Director, Military Voting Project
  Oral Testimony.................................................    25
  Prepared Statement.............................................    28
Wendy Weiser, Director of Democracy Program, New York University 
  School of Law
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39
J. Christian Adams, Attorney, Election Law Center, PLLC
  Oral Testimony.................................................    62
  Prepared Statement.............................................    64

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, Ranking 
  Member, Committee on the Judiciary, and Member, Subcommittee on 
  the Constitution...............................................    86
Material submitted by Wendy Weiser, Director of Democracy 
  Program, New York University School of Law.....................    95
Material submitted by the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Chairman, Subcommittee on the Constitution.....................    97
Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution...............   103

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Chairman, Subcommittee on the Constitution.....................   126
Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution...............   157
Response to Post-Hearing Questions from Cleta Mitchell, Partner, 
  Foley & Lardner................................................   175
Post-Hearing Questions submitted to M. Eric Eversole, Director, 
  Military Voting Project........................................   189
Response to Post-Hearing Questions from Wendy Weiser, Director of 
  Democracy Program, New York University School of Law...........   191
Response to Post-Hearing Questions from J. Christian Adams, 
  Attorney, Election Law Center, PLLC............................   200


  VOTING WRONGS: OVERSIGHT OF THE JUSTICE DEPARTMENT'S VOTING RIGHTS 
                              ENFORCEMENT

                              ----------                              


                       WEDNESDAY, APRIL 18, 2012

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 9:07 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Trent 
Franks (Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Chabot, King, Nadler, 
Conyers, Scott, and Quigley.
    Also Present: Representatives Smith.
    Staff Present: (Majority) Paul Taylor, Subcommittee Chief 
Counsel; Zachary Somers, Counsel; Dan Huff, Counsel; Sarah 
Vance, Clerk; (Minority) David Lachmann, Subcommittee Staff 
Director; and Veronica Eligan, Professional Staff Member.
    Mr. Franks. Good morning, and welcome to this Constitution 
Subcommittee hearing on Voting Wrongs: Oversight of the Justice 
Department's Voting Rights Enforcement.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    I want to welcome the panelists here and welcome all of you 
here this morning.
    Today, we examine what the Voting Section at the Department 
of Justice has been doing and what it has not been doing. As 
the 2012 Presidential election nears, the Voting Section must 
ensure that those military members who are defending our 
Republic have the opportunity to participate in it.
    There are approximately two million military voters, many 
in combat zones, many risking their lives on behalf of all of 
us, but with limited access to ballots. Accordingly, in 2009, 
Congress passed the Military and Overseas Voter Empowerment 
Act, MOVE, which requires States to mail absentee ballots to 
all military voters at least 45 days before a Federal election. 
The Military Voter Protection Project analysis shows that 
inadequate enforcement of the MOVE Act in the 2010 cycle 
disenfranchised thousands of service members. This year, DOJ 
must identify violations early, negotiate strong settlements 
that deter repeat offenses, and ensure military recruitment 
centers and bases offer opportunities to register or request 
ballots as required by law.
    In 2010, there were at least 14 States with counties that 
failed to meet the 45-day deadline. Nonprofit watchdogs 
discovered that DOJ failed to prosecute most of these 
illegalities, leaving insufficient time for corrective action 
that would fully protect thousands of military voters.
    Where DOJ sued violators for missing the 45-day deadline to 
mail the ballots, it settled for an extension of time for 
military voters to return them. But that does not solve the 
problem, because the absentee ballot must reach the voter by 
election day to count, no matter when it is returned. 
Therefore, DOJ's so-called solution systematically 
disenfranchises military voters.
    DOJ didn't require jurisdictions in violation to use 
Express Mail to send the ballots. While it costs more, DOJ does 
not hesitate to impose heavy costs on jurisdictions when it 
suits their ideological agenda, for example, by requiring 
bilingual ballots for voters who claim to speak English well. 
Similarly, the Justice Department seems unconcerned about low 
registration rates for military recruiting centers, even though 
it aggressively sued States which it thinks register an 
insufficient number of people at welfare offices.
    The Voting Section needs to make a first priority of 
protecting service members whose first priority is protecting 
all of us. Instead, the Voting Section is seeking headlines in 
opposing voter ID laws that an overwhelming majority of 
Americans support as necessary and non-discriminatory.
    In a 2008 case, the Supreme Court recognized, ``The 
electoral system cannot inspire public confidence if no 
safeguards exist to confirm the identity of voters.'' It hardly 
inspires public confidence that a White 20-something can obtain 
the ballot of the first Black Attorney General. Let me say that 
one more time. It hardly inspires the public confidence that a 
White 20-something can obtain the ballot of the first Black 
Attorney General. There is a little video here to illustrate 
that point.
    [Plays video.]
    Mr. Franks. Opposing voter ID is consistent with the Voting 
Section's pattern and practice of making strained legal 
arguments in areas it favors ideologically.
    A starker example of DOJ's uneven priorities is its 
selective enforcement of the National Voter Registration Act. 
DOJ is aggressively suing States for not registering sufficient 
voters at welfare offices, and at the same time it has not 
brought a single case under Section 8 of the law requiring 
States to maintain the accuracy of their voter lists, despite 
documented inaccuracies. The result is the identities of 
illegal or dead persons could be used to cancel out lawful 
votes.
    With that, I would now recognize the Ranking Member, Mr. 
Nadler, for his opening statement.
    Mr. Nadler. Thank you, Mr. Chairman.
    We are back again with another oversight hearing airing 
allegations, most of them demonstrably false, against the 
Department of Justice without inviting the Department of 
Justice to testify.
    I have served in the House since 1992 and never before this 
Congress have I ever seen anything quite like what has become 
standard practice in this Committee. We hold hearings on 
legislation stripping the District of Columbia of its basic 
home rule rights without the courtesy of allowing the Delegate 
from the district to testify. We have hearings on the 
Department of Justice and other executive branch agencies in 
which witnesses allege misconduct without inviting the 
Department or the Administration to testify or to rebut.
    I suppose I should be grateful that the minority is allowed 
a single witness. Evidently, some Republican Chairman believe 
that even this is optional.
    This conduct is unbecoming of this Committee and of this 
House. If we are going to turn these hearings into veritable 
able kangaroo courts, then we should drop the pretense that we 
are actually engaged in objective oversight or legitimate fact 
finding. And I hope that no one will insult our intelligence by 
telling us that the minority could have invited the 
Administration to testify as our one sole minority witness that 
we are allowed.
    I say this because the issue before us today, the right to 
vote in a free and fair election and the right to have our 
votes counted, is at the heart of our system of government. 
Indeed, it is a fundamental part of who we are as Americans. 
Without free and fair access to the ballot for all Americans, 
our democracy would be a sham.
    Devices to suppress voting, like restricting voter 
registration or selectively requiring photo IDs that are more 
commonly possessed by White voters and not by minority, young, 
or elderly voters, betrays our right to a republican form of 
government--small ``r''--as guaranteed by Article 4, Section 4 
of the Constitution.
    We are even going to have a rehash of long-discredited 
allegations about the New Black Panther Party case, one in 
which no voter has ever complained of having been intimidated. 
As Abigail Thernstrom, a Republican member of the Civil Rights 
Commission, put it succinctly, ``This doesn't have to do with 
the Black Panthers. This has to do with Republican fantasies 
about how they could use this issue to topple the 
Administration. My fellow conservatives on the Commission had 
this wild notion that they could bring Eric Holder down and 
really damage the President.''
    I think it is also important to keep in mind that 
widespread voter fraud is a talking point, not a demonstrated 
reality. One Republican witness has submitted a list of alleged 
voter fraud cases stretching back to the 1990's. What is 
striking about this list is that many of the cases have nothing 
to do with voter ID, such as alleged cases of vote buying or 
stealing ballots; that some States have only one case; and that 
some States are not even on the list. Very pervasive.
    It is especially interesting that the list makes no mention 
of voter suppression, when just recently former Maryland 
Governor Bob Ehrlich's campaign manager was convicted and 
sentenced for using fraudulent robocalls to suppress the vote 
in the African American community.
    I also see no mention of the recent unsuccessful effort by 
the Republican National Committee to get out from under a 1982 
consent decree in which the Republican National Committee 
agreed to stop engaging in various voter suppression tactics 
aimed at suppressing minority votes.
    The Third Circuit's decision, handed down just a few weeks 
ago, makes for interesting reading. In the 1982 consent degree 
the RNC agreed ``to refrain from undertaking any ballot 
security activities in polling places or election districts 
where the racial or ethnic composition of such districts is a 
factor in the decision to conduct or the actual conduct of such 
activities there and where the purpose or significant effect of 
such activities is to deter qualified voters from voting.''
    I hope that we will have the opportunity to discuss the 
issue of voter suppression and the pretextual and nonsensical 
allegations of voter fraud as an excuse for voter suppression 
which we see all over the country now.
    The Supreme Court has noted the rarity of in-person voter 
fraud, and I would point out that cases of ballot stuffing or 
other kinds of alleged fraud have nothing to do with voter ID. 
It is only in-person voter fraud that has anything to do with 
voter IDs. In Crawford versus Marion County Election Board, the 
Court found that ``there was no evidence of any in-person voter 
fraud actually occurring in Indiana at any time in its 
history.''
    There have, however, been instances of individuals who are 
duly qualified voters being turned away. Perhaps most 
notoriously, again in the State of Indiana, 12 nuns in their 
80's and 90's were denied their right to vote because they did 
not have drivers' licenses and had outdated passports. Sister 
Julie McGuire, who turned the nuns away, said they hadn't been 
given provisional ballots because it would be difficult to get 
the nuns to a motor vehicle branch for non-driver IDs in time 
for the 10-day window allowed for provisional IDs. Sister 
McGuire told the Associated Press, ``You have to remember that 
some of these ladies don't walk well. They are in wheelchairs 
or walkers or electric carts.'' They were all denied their 
right to vote.
    This Committee in our investigation of the U.S. Attorney 
firing scandal--I think it was about 4 or 5 years ago--and in 
another investigation by the IG and the Office of Professional 
Responsibility uncovered evidence showing that some of the U.S. 
Attorneys had been fired at the direction of high-level Bush 
White House officials because of complaints that the U.S. 
Attorneys did not pursue voter fraud prosecutions that they had 
determined to be meritless. So they were fired.
    In one case, in addition to White House personnel, evidence 
was uncovered that a Republican Senator and a Republican Member 
of this House had applied political pressure to get 
prosecutions initiated before the elections.
    I hope that as we receive testimony from Republican party 
attorneys alleging pervasive voter fraud, we can remember these 
facts.
    Mr. Chairman, it wasn't too many years ago that I had the 
privilege of working on a bipartisan basis with the Republican 
Chairman of this Committee to reauthorize the Voting Rights 
Act. It was a reflection of our belief that the right to vote 
must be inviolate and that there are still too many challenges 
to making that a reality for all Americans, especially members 
of minority communities. Chairman Sensenbrenner and Ranking 
Member Conyers demonstrated what a genuine commitment to voting 
rights can accomplish when we put our minds to it.
    I also realize that the vote to reauthorize the Voting 
Rights Act was not unanimous and that some Members of this 
Committee did not vote for it. That is certainly a Member's 
prerogative, and I have to respect it. Nonetheless, I would 
hope that at some point we could return to that bipartisan 
consensus in favor of the right to vote. Without it, we cease 
to be the America that all of us believe in. I don't believe we 
can ever allow that to happen.
    I join the Chairman in welcoming our witnesses, and I look 
forward to the testimony.
    Mr. Chairman, I thank you, and I yield back.
    Mr. Franks. Thank you, Mr. Nadler.
    I now yield to the distinguished Chairman of the full 
Committee, Mr. Smith, for his opening statement.
    Mr. Smith. Thank you, Mr. Chairman.
    The foundation of our democracy rests on secure and fair 
elections. Unfortunately, voter fraud undermines the electoral 
process and can sway the ultimate outcome of elections. Illegal 
votes negate the votes of legal voters.
    Voter ID laws help ensure the integrity of our elections 
and protect the rights of lawful voters. So far, 16 States have 
photo ID requirements for casting a ballot.
    We must safeguard the integrity of our voting process in 
order to safeguard our democracy. But rather than support 
commonsense proposals to help protect our democratic process, 
the Justice Department's Voting Section wastes taxpayer dollars 
in fighting the very laws that promote fair and accurate 
elections.
    Photo identification is part of everyday American life. 
Citizens are required to show a valid form of identification to 
open a bank account, cash a check, drive a car, or board a 
plane. If valid identification is required for these daily 
tasks, then why is it not required to exercise one of our most 
valuable democratic rights? Voter ID opponents insist that 
voter fraud is not a serious problem, but voters disagree. The 
majority of Americans overwhelmingly support laws that require 
people to show photo identification before being allowed to 
vote.
    A recent Rasmussen poll survey found that 64 percent of 
likely U.S. voters agree that voter fraud is a serious problem, 
while just 24 percent disagree, and 73 percent of respondents 
believe that a photo ID requirement before voting does not 
result in any discrimination. In fact, the Supreme Court in a 
6-3 decision authored by liberal Justice John Paul Stevens 
rejected the argument that voter ID laws are discriminatory 
when it upheld Indiana's strict voter ID law in 2008.
    In upholding the Indiana law, the Court cited flagrant 
historical examples of in-person voter fraud as well as the 
State's administrative interest in carefully identifying who 
has voted. The Court also noted the State may have a legitimate 
interest in requiring photo ID for voters even without evidence 
of widespread fraud. The Court's opinion quoted the report from 
the bipartisan Commission on Federal Election Reform co-chaired 
by former President Jimmy Carter that stated, ``The electoral 
system cannot inspire public confidence if no safeguards exist 
to deter or detect fraud or to confirm the identity of 
voters.''
    Most forms of voter fraud are difficult to detect, 
especially if photo IDs are not required. That same Commission 
report found voter fraud does occur and could affect the 
outcome in a close election.
    Having lost in both the Federal courts and the Court of 
public opinion, you would think voter ID opponents would give 
up. But just last month the Obama administration announced it 
will challenge the Texas voter ID law which is based on the 
Indiana law and was overwhelmingly supported by Texas voters. 
The Justice Department also seeks to challenge a similar law in 
South Carolina.
    The Department claims that the laws are discriminatory 
because minorities are less likely to have the required IDs, 
but a closer look at the Department's math shows that their 
arguments simply don't add up. For example, in South Carolina, 
90 percent of Blacks have photo IDs, compared to 92 percent of 
Whites, so the Justice Department seeks to override a State law 
because of a difference of less than 2 percent.
    The Department's case against the Texas voter ID law is 
equally troubling. Assistant Attorney General for the Civil 
Rights Division, Tom Perez, claims that the disparity between 
photo ID possession by Whites and Hispanics is statistically 
significant. Data shows that 95 percent of White voters have 
photo ID, as do 93 percent of Hispanic voters. Once again, the 
disparity is only 2 percentage points. Even that slight 
difference may be within the margin of error since Texas, in 
gathering some of the data, had to guess who is Hispanic based 
on surname.
    Ironically, the Justice Department's own policy requires 
visitors to show valid photo ID before being allowed to enter 
its own buildings. If it takes valid identification to walk the 
halls of the Justice Department, maybe it should take at least 
that much to determine the outcome of our elections.
    If the Department wants to protect the rights of voters, 
they should work to ensure that States remove ineligible voters 
from their rolls as required by Federal law. The rights of all 
voters should be protected and respected by the Obama 
administration. The misplaced priorities of the Department of 
Justice wastes taxpayers' money and does little to protect the 
rights of legal voters.
    Thank you, Mr. Chairman. I yield back.
    Mr. Franks. Thank you, Mr. Chairman.
    Without objection, other Members' opening statements will 
be made part of the record.
    Mr. Conyers. Pardon me, Mr. Chairman.
    Mr. Franks. Please forgive me. The distinguished former 
Chairman is recognized.
    You snuck up on me, Mr. Chairman.
    Mr. Conyers. Thank you, Chairman Franks.
    There is a bit of irony connected with this hearing, isn't 
there? Here we have the great work of Dr. Martin Luther King in 
terms of breaking down the segregation in voting that was 
historic in the South. We have the incident of the Edmund 
Pettus Bridge in which people were marching to get the rights 
to vote and were brutally oppressed by law enforcement and 
other citizens that were not prepared to open up voting for 
everybody.
    Here, 3 years ago, we elected the first African American 
President as the 44th leader of this great country. Here we 
have an Attorney General Eric Holder, another distinguished 
lawyer of color, in charge of the Department of Justice. And 
now we come this morning to discuss how the Department of 
Justice is encouraging voter wrongs instead of continuing to 
work on making this a more open society.
    I am the only Member here that was present when the Voting 
Rights Act of 1965, which came out of this Committee, became 
law and has been continued on three different occasions. And it 
seems to me, based on the very complete contrast between 
Ranking Member Jerrold Nadler's comments and those of the 
Chairman, it seems to me that there ought to be room in this 
great Committee of the House Judiciary, which I joined when 
Emanuel Celler of New York was the chair, that we ought to be 
able to, without the formality of witnesses, try to get some of 
the facts straightened out here. This is not complex, and I 
propose that myself and Jerrold Nadler, Bobby Scott, and Mr. 
Quigley join with the Chairman of the Subcommittee and the 
Chairman of the full Committee to try to get some of these 
matters straight.
    Now, share with me the fact that during the previous 
Administration the Department of Justice utilized its 
infrastructure and politicized the hiring process that has come 
out in our own hearings here, overriding the objections of 
career attorneys in voting rights cases, firing United States 
Attorneys for not pushing politically motivated prosecutions, 
and pressuring States to purge voting rolls.
    We also found out that since the days of the former acting 
head of the Civil Rights Division, Brad Schlozman, who the 
Office of Professional Responsibility and the Office of the 
Inspector General both found ``violated Federal law in order to 
stock the division with his political equals'' the integrity, 
thank goodness, of the Civil Rights Division has since been 
restored.
    So what we need to do now is examine the unprecedented 
array of State restrictions on the right to vote. Thirty-four 
States have introduced legislation, fifteen State laws have 
been enacted that seriously impact voting in terms of limiting 
voting by requiring the presentation of photo ID, excluding 
common forms of identification, declaring proof of citizenship 
as a condition to vote, limiting or eliminating early voting 
opportunities, and stalling or eliminating registration 
efforts.
    So, Mr. Chairman, I think we have a huge responsibility on 
our hands; and I urge all of the Committee--all of the Members 
of the Committee on both sides of the aisle to join us in 
seeking the truth about what brings us here today.
    I thank the Chairman for the time.
    Mr. Franks. I thank the gentleman and apologize for 
overlooking him.
    So, without objection, other opening statements by other 
Members will be made part of the record.
    I would like now to introduce our witnesses.
    Cleta Mitchell is a partner at Foley & Lardner, LLP, and a 
member of the firm's political law practice. Ms. Mitchell is 
also the president of the Republican National Lawyers 
Association. She has more than 30 years experience in law 
politics and public policy, even though she is only 35. She 
advises candidates, campaigns, and individuals on State and 
Federal campaign finance law and election law.
    Mr. Eric Eversole is the Executive Director of the Military 
Voter Protection Project and formerly served as litigation 
attorney in the Department of Justice's Voting Section. He is a 
Navy JAG officer who served on active duty from 1999 until 
2001. Eric is an expert on military voting issues and has 
testified on numerous occasions before Congress.
    Wendy Weiser is the Director of the Democracy Program at 
NYU School of Law. She has authored a number of reports and 
papers on election reform and has provided legislative drafting 
assistance to Federal and State legislators and administrators 
across the country. She is also an adjunct professor of law at 
NYU School of Law. Professor Weiser is a graduate of the Yale 
Law School.
    J. Christian Adams is a former Justice Department Voting 
Rights Attorney and runs the online blog Election Law Center. 
He served 5 years as an attorney in the Voting Section of the 
Justice Department where he brought a wide range of election 
cases to protect racial minorities. Prior to that, he served as 
General Counsel to the South Carolina Secretary of State.
    I would just thank all of the witnesses for appearing 
before us today.
    Each of the witnesses' written statements, their entire 
written statements, will be entered into the record; and I 
would ask each of you to summarize his or her testimony in 5 
minutes or less.
    To help you stay within that time, there is a timing light 
on your table. When the light switches from green to yellow, 
you will have 1 minute to conclude your testimony. When it 
turns red, it signals that the witness's 5 minutes have 
expired.
    Before I recognize the witnesses, it is the tradition of 
this Subcommittee that they be sworn in, so if you would please 
stand.
    [Witnesses sworn.]
    Mr. Franks. Thank you. Be seated, please.
    Also, the witnesses, I would just warn you to please turn 
your microphone on before beginning to speak.
    I would now recognize our first witness, Ms. Mitchell, for 
5 minutes.

             TESTIMONY OF CLETA MITCHELL, PARTNER, 
                        FOLEY & LARDNER

    Ms. Mitchell. Thank you, Mr. Chairman.
    Mr. Chairman, Lamar Smith as well, Mr. Chairman, Mr. 
Conyers, thank you so much for hosting this hearing and holding 
this hearing, because it is an important issue. I have been 
before this Committee and this Subcommittee previously to talk 
about the issues that are pressing in this country with regard 
to voter integrity and open, fair, and honest elections.
    The Republican National Lawyers Association is an 
organization of attorneys nationwide who are dedicated to fair, 
open, and honest elections, and I am proud and honored to serve 
as its President.
    We are here today to talk about the fact that we have an 
Attorney General who, rather than acting as the chief law 
enforcement officer of this country who is responsible for 
enforcing more than 15 Federal laws that make various types of 
activity criminal activity in the area of elections, that 
rather than spending his time and the time of his Department of 
Justice working to ensure that our elections are indeed free of 
fraud and free of criminal activity, instead, this Attorney 
General is doing everything in his power to fight the State 
authorities who are trying to ensure the integrity of our 
elections.
    He has become, instead of being the chief law enforcement 
officer, a partisan political operative, carrying water for the 
Democratic National Committee, liberal interest groups, and the 
Obama reelection campaign. He attacks voter identification laws 
without regard to the law or the facts.
    It is amazing to me that this is yet another example where 
the Attorney General has decided that he is the arbiter of what 
the law is, not what the Supreme Court has said but what 
Attorney General Eric Holder and his political allies believe 
to be the law, and has ignored the fact that the United States 
Supreme Court has indeed ruled in the Crawford case that has 
been referenced earlier here this morning that, despite what 
the chairman of the Democratic National Committee and the 
Department of Justice Attorney General Eric Holder say, that 
voter ID laws are not a poll tax.
    The Supreme Court rejected that argument in the Crawford 
case, and indeed the Court said that a voter identification 
requirement is not a poll tax because there is a balance. And 
because the purpose of a voter identification, a photo 
identification, is to ensure and protect the integrity of the 
election, that whatever burden may exist is offset by the need 
to protect the integrity of the elections.
    The trial court in that case--the Federal trial court had 
found that, notwithstanding the arguments put forward by the 
plaintiffs that there were hundreds of thousands of people 
without photo identification, an argument that persists to this 
day but which is not true, in fact that fewer than 1 percent--
this was a finding by the Federal trial Court in the Crawford 
case, that fewer than 1 percent of Indiana voters would not 
have a photo ID. And the court found that since 99 percent of 
the voters would in fact have photo identification that it was 
not an impermissible burden to require that a photo ID be 
presented.
    The Attorney General further ignores the facts, and I could 
go on and on about the factual evidence that the Attorney 
General ignores, but let me give you a case study of just 2 
weeks ago in Tennessee.
    In Tennessee 2 weeks ago, there was an election which 
required, a Statewide election, where photo identification is 
required. There were 645,775 votes cast in that election. Of 
those people who appeared to vote, there were 266 who did not 
have photo ID or who did not present photo ID, and that 
included some people who came protesting the new photo ID 
requirement.
    Those people under the law had the right to go--they were 
able to cast ballots provisionally, were able to go and 
retrieve photo ID and present it within a period of time. One 
hundred and twelve of those 266 people did so and returned with 
photo ID, and their votes were counted. So out of 645,775 votes 
cast, there were 154 people who, for whatever reason, either 
did not return, and their votes were not counted. That is.023 
percent of those who participated in the election. It seems to 
me that is well within the finding of the Indiana Federal trial 
judge in the case that was upheld by the U.S. Supreme Court.
    The Attorney General further mystifyingly decided last week 
to quote the Republican National Lawyers Association as his 
source for the fact that no voter fraud exists. If Chairman 
Nadler will remember, when I last testified before this 
Committee in 2008 I asked and the Chairman allowed at the time 
for me to put into the record evidence of voter fraud cases 
from across the country. And since that time the Republican 
National Lawyers Association has on its Web site a voter fraud 
page where we post cases of voter fraud. I have attached that 
as part of the record, nine pages, 44 States. It is not 
intended to be exhaustive, but just since February the RNLA has 
written about 11 cases of voter fraud, all of which have been 
brought not by the Department of Justice but by State and local 
authorities.
    So the point is that I don't know why the Attorney General 
would cite RNLA as the source of no voter fraud. I guess 
believing is seeing.
    I would urge this Committee to please continue its 
oversight, to ask questions. I agree with Chairman Conyers, ask 
some questions of the Department of Justice and what it is 
doing to publicize its intent to prosecute election crimes in 
this election.
    I will just close with this one comment, a statement which 
is from the manual, the Department of Justice Manual on Federal 
Election Crimes Prosecution. And the manual states that in the 
United States, as in other democratic societies, it is through 
the ballot box that the will of the people is translated into 
government that serves rather than oppresses. Our 
constitutional system of representative government only works 
when the worth of the honest ballots is not diluted by invalid 
ballots procured by corruption.
    The RNLA couldn't agree more. We stand ready to assist this 
Committee in its oversight of the Department of Justice to 
ensure the protection and the integrity of our elections.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Mitchell follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               ATTACHMENT














                               __________

    Mr. Franks. Thank you, Ms. Mitchell.
    I would remind the panelists there that we would like to 
keep you within the 5-minute timeframe, if possible.
    I would now recognize Mr. Eversole for 5 minutes.

           TESTIMONY OF M. ERIC EVERSOLE, DIRECTOR, 
                    MILITARY VOTING PROJECT

    Mr. Eversole. Good morning, Chairman Franks and Members of 
the Subcommittee. Thank you for allowing me to testify today 
regarding the enforcement of military voter rights and in 
particular the enforcement of those rights by the Voting 
Section of the Department of Justice.
    As many of the Committee Members know, in 2009 Congress 
passed the most sweeping military voter reform in over 20 
years. That new law, the MOVE Act, promised to usher in a new 
era for military voters, one that would provide those voters 
with enough time to receive and return their ballots so that 
they would be counted on election day.
    But a law, no matter how well written, cannot deliver on 
its promise if the agency responsible for enforcing that law 
fails to do so or fails to do so in a timely or an effective 
manner. The agency with that responsibility, the Voting Section 
of the Department of Justice, has failed to uphold its end of 
the bargain.
    From day one after the MOVE Act was passed in 2009, the 
Voting Section showed an unwillingness to aggressively enforce 
the MOVE Act, to conduct meaningful investigations, or to bring 
actions in a timely manner. These failures were well-documented 
in 2010, and they continue to occur in 2012. The Voting 
Section's only response to these failures, one that rings 
hollow, is that it vigorously enforces the law because it 
brought 14 cases or reached agreements in 14 States to protect 
military voting rights.
    But numbers alone mean nothing. The questions that must be 
asked and answered is whether the military voter rights were 
actually protected in those agreements, were the cases brought 
in a timely manner, and did the agreements help ensure that 
service members would be able to have their voices heard on 
election day. On each count, the Voting Section failed in its 
responsibility.
    The first thing I would say about these 14 agreements is 
that at least five of them aren't agreements at all. Five of 
the cases are actually letters of compliance written from the 
State or the Territory saying that they got the Department of 
Justice's letter about complying with the law and that they 
agree to comply with the law. But that is not an agreement. No 
matter how you slice it, it is a smoke screen.
    But even in the cases where there weren't agreement, the 
other nine cases, it is important to look at the dates of those 
agreements. All of them are signed just a few weeks before the 
election, and when you settle a military voter case just a few 
weeks before the election when our service members are in all 
four corners of the world, you don't provide them with 
sufficient time and sufficient remedies to make sure that their 
rights are protected when violations occur. Justice delayed is 
justice denied.
    But, more importantly, if you look at each of these 
agreements, many of these agreements do not fully protect our 
men and women in uniform. Take the cases against New York and 
Illinois. In both States the Voting Section allowed local 
jurisdictions to mail absentee ballots to service members in 
overseas locations less than 30 days before the election, even 
though they are well aware of the fact that mail to forward 
deployed locations can take 30 or more days.
    The flawed nature of these agreements, especially in New 
York, became very clear after the election. Of the more than 
5,000 military ballots that were turned by New York in 2010, 30 
percent of those ballots were rejected in New York, 
notwithstanding the settlement agreement reached by the 
Department of Justice.
    Finally, and it can't be overemphasized, all of these 
agreements fail to address the source of the problem. That is, 
local election officials have not or will not comply with the 
law. When local election officials like the ones recently in 
Wisconsin fail to send out ballots or fail to answer simple 
questions about whether they mailed out ballots and there are 
no consequences for that refusal to comply with simple law, 
then those violations will continue to occur time and again.
    Ultimately, for our men and women in uniform to have any 
hope of having their voices heard on election day, then the 
Voting Section has to aggressively enforce the MOVE Act, has to 
do so in a timely manner, and has to ensure that the remedies 
fully protect their voting rights.
    Thanks again for the opportunity to testify today, and I 
look forward to any questions that the Committee Members have. 
Thank you.
    [The prepared statement of Mr. Eversole follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Franks. And I thank you, Mr. Eversole.
    Professor Weiser, you are recognized for 5 minutes.

 TESTIMONY OF WENDY WEISER, DIRECTOR OF DEMOCRACY PROGRAM, NEW 
                 YORK UNIVERSITY SCHOOL OF LAW

    Ms. Weiser. Thank you, Mr. Chairman and Members of the 
Subcommittee, for this opportunity to testify.
    This is a critical time for voting rights in America, and 
the Department of Justice has a critical role to play. I will 
make three points today.
    First, as Chairman Conyers noted, the past 2 years have 
seen a massive wave of new State laws making it harder for 
eligible American citizens to vote. Overall, 22 new State laws 
and two executive actions have been put in place in 17 States 
restricting voting. These range from requiring certain forms of 
photo identification to vote, to making it harder to register 
to vote, to cutting back on early voting, among other things. 
This is the biggest setback in voting rights in decades and an 
abrupt reversal of the longstanding trend in American history 
to expand access to the franchise. Millions will be affected, 
and some will be especially hard hit: minorities, the poor, 
people with disabilities, students and older Americans.
    Second, the Department of Justice has a critical role to 
play with respect to these new laws. Under the Voting Rights 
Act, States with a history of discriminating in voting must get 
pre-clearance from the Department or a Federal court before 
implementing changes to their voting laws. States have the 
burden to show that their new laws will not discriminate 
against minorities, and the Department must review the evidence 
and make a determination as to whether States have met that 
burden. And that is exactly what the Department has been doing 
with respect to these new voting restrictions: applying the 
law, nothing more, nothing less.
    It has appropriately found that Florida, Texas, and South 
Carolina have not met their burden of showing that their new 
laws won't discriminate against minorities. And the Brennan 
Center is in fact involved in those matters. The new law in 
Florida has made it so hard for civic groups to register fellow 
citizens to vote that the League of Women Voters and groups 
across the State have shut down their voter registration 
drives. And this especially hurts minorities, who register at 
voter registration drives at twice the rate of White citizens. 
Florida also cut back on Sunday early voting, which was used 
especially by African American and Hispanic churches.
    New strict photo ID laws in both Texas and South Carolina 
also disproportionately harm minorities. Texas' own data show 
that as many as 795,000 registered voters--that is not just 
eligible but registered voters--do not have State photo IDs, 
and Latino citizens are between 46 percent and 120 percent more 
likely than White voters to lack those IDs.
    A quick word on voter ID laws. There may be disagreements 
about voter ID as a policy matter, but everyone should agree 
that voter ID laws should not gratuitously disenfranchise 
voters. Unfortunately, that is what many of the new laws we are 
seeing this year do. They are far more restrictive than the ID 
laws of the past, limiting the forms of ID that will be 
accepted, cherry-picking the IDs that certain groups may not 
have, and eliminating exemptions and fail-safe protections for 
voters who don't have IDs.
    These aren't reasonable ID laws. They require IDs that 11 
percent of eligible Americans don't have, and those who 
participate in primaries are disproportionately among those who 
do have those IDs. And these laws don't have a way for people 
without IDs to verify their identities and to vote, as Virginia 
Governor Bob McDonnell just complained when he sent back a bill 
in that State last week.
    I should add that Section 5 of the Voting Rights Act is not 
the only law that these new restrictions may run afoul of. Just 
yesterday, for example, the Ninth Circuit Court of Appeals 
ruled 9-2 that a law in Arizona that requires proof of 
citizenship to register to vote violates the Federal Motor 
Voter Law.
    Third, in contrast to these controversial new voting laws, 
there is a commonsense bipartisan solution that would actually 
improve the integrity of our elections and public confidence: 
modernizing our ramshackle voter registration system. As Mr. 
Adams noted in his written testimony, the voter rolls are a 
mess. A Pew Study recently found that one in four eligible 
Americans are not registered to vote and that one in eight 
voter registration records have serious errors.
    Better enforcement of the NVRA, including Section 7 and 
Section 5, would certainly help, but the real problem is that 
in most of the country we still rely on an antiquated, error-
prone, paper-based voter registration system. Congress can help 
the States bring our voting system into the 21st century by 
passing a law to modernize voter registration across the 
country. This would add millions of eligible voters to the 
rolls, increase accuracy, reduce opportunities for fraud and 
abuse, and cut costs. It is a solution everyone can get behind.
    Thank you very much.
    [The prepared statement of Ms. Weiser follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Franks. Thank you, Professor Weiser.
    Mr. Adams, you are recognized for 5 minutes, sir.

          TESTIMONY OF J. CHRISTIAN ADAMS, ATTORNEY, 
                   ELECTION LAW CENTER, PLLC

    Mr. Adams. Thank you.
    Chairman Franks, Ranking Member Nadler, and Members of the 
Committee, thank you for this opportunity to testify.
    Free and fair elections are the cornerstones of our 
constitutional Republic. The Department of Justice has a long 
and admirable role in securing the right to vote free from 
racial discrimination. Ahead of the November, 2012, election, I 
can report on some encouraging developments regarding the 
Justice Department's enforcement of voting laws as well as 
several discouraging ones.
    An area where the Justice Department deserves some praise 
is in the relatively smooth redistricting process after the 
2010 census. Some of this is attributable, of course, to States 
going to court for approval instead of only to the Voting 
Section. This was a calculated strategy by the States. Because 
in the 1990 redistricting cycle, for example, the Justice 
Department was forced to pay out nearly $2 million in court-
imposed sanctions for lawyer misconduct during the 
redistricting process. Some of the lawyers and staff who worked 
on those cases which were the subject of sanctions are still at 
the Justice Department, and States have understandably sought 
to bypass the administrative process and go straight to Federal 
court.
    Unfortunately, there is some troubling behavior from the 
Justice Department. First, let me note that it is a false 
perception that the Obama administration has more vigorously 
protected minority voting rights than the Bush administration. 
The numbers prove otherwise. The current Justice Department is 
woefully lacking in enforcing Section 2 of the Voting Rights 
Act. Section 2 of the Act is the broad prohibition on racial 
discrimination in elections.
    While the Bush administration vigorously enforced Section 
2, enforcement under the Obama administration has flatlined. In 
fact, the current Administration has failed to initiate a 
single Section 2 investigation which resulted in an enforcement 
action since taking office.
    Loud critics of the Bush administration claim that 
enforcement of Section 2 during that time was lacking, when in 
truth it was vigorous. The Bush administration filed multiple 
Section 2 cases to protect national racial minorities. In fact, 
if you include all Section 2 cases to protect national racial 
minorities, the Bush administration filed 14 cases. Again, the 
Obama administration has filed exactly one, and that is a case 
against Lake Park, Florida, a matter which I brought which was 
launched during the Bush administration and filed in March of 
2009.
    In response to criticism for failing to enforce Section 2, 
this Justice Department has recently adopted a curious new 
public policy position saying that they have initiated a record 
number of Section 2 investigations. This is in fact a public 
relations sham, and I describe how in my written testimony.
    These investigations do not even reach the preliminary 
point of whether it is possible to draw a minority-majority 
district in most cases. Numbers can't lie. Not a single case 
has been filed by the Obama administration since the Lake Park 
case in March of 2009, a case which I brought and the Bush 
administration started.
    A couple of other points are important about voter ID to 
understand. The Department's use of Section 5 to block election 
integrity measures has now taken place in numerous examples. 
The first example was in 2009 when a Section 5 objection was 
entered to stop Georgia's law that required that only citizens 
be registering to vote. The most recent example, of course, is 
in South Carolina and Texas with voter ID.
    Under the interpretation by this Justice Department, unless 
the States can prove an absolute absence of the slightest trace 
of disparate statistical impact, then the DOJ will object to 
voter IDs in covered States. Mississippi and Virginia should 
take careful note. For example, in the South Carolina voter ID 
law, 90 percent of African Americans were shown to have photo 
ID and 91.6 percent of Whites.
    Justice refused to consider as determinative the practical 
safe harbors contained in the voter ID statutes. In South 
Carolina, for example, the State would provide free rides to 
State offices to obtain free voter ID. Voters would even be 
allowed to cast a ballot on Election Day if they didn't have ID 
if they filled out an affidavit saying they had a reasonable 
impediment to obtaining voter ID and swearing to their 
identity. The burden was on the State to prove the affidavit 
was false.
    I believe it is unlikely that the courts will permit such 
an unreasonable interpretation of Section 5 of the Voting 
Rights Act. If the courts do, however, then Congress must step 
in and examine whether Section 5 should be amended so the 
Justice Department cannot in these circumstances block 
implementation of State election laws designed to ensure 
election integrity.
    Thank you very much.
    [The prepared statement of Mr. Adams follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Franks. Thank you, Mr. Adams.
    I want to thank all of you for your testimony, and I will 
now begin the questioning by recognizing myself for 5 minutes.
    Mr. Eversole, there are approximately 2 million military 
voters; and hundreds of thousands of those, of course, have 
been deployed throughout combat zones across the world. And as 
they risk spilling their blood to defend their country, it is 
clear to me that their Justice Department is failing to ensure 
that they can exercise their right to vote.
    In 2010, only 4.6 percent of military voters were able to 
cast an absentee ballot that counted, and only 5.5 percent 
could do so in 2006. The total military voter turnout for 2010 
was just 11.6 percent. By contrast, the national voter 
participation rate in 2010 was 41.6 percent.
    So, Mr. Eversole, how is the Department of Justice failing 
to ensure the deployed members of the military can cast their 
legal vote for their commander in chief?
    Mr. Eversole. Thank you, Mr. Chairman.
    At the very beginning, they have to make sure to conduct 
timely investigations when those ballots are supposed to go 
out, 45 days before the election. You can't wait one or 2 weeks 
after that 45-day deadline to start your investigation and then 
take two or three more weeks to conduct the investigation and 
file an action, like they did a couple months ago or a month 
ago in Alabama 18 days before the election. When you settle 
cases 18 days before the election, that timeframe provides 
very, very limited remedies, if any at all, other than adding 
some days, and it prevents service members, especially those 
serving on the front lines, the ones who need the most time, an 
opportunity to get their ballots. So that is where it starts.
    Then once you have a case you have to make sure that your 
remedies actually protect the service members. The New York 
case was atrocious in 2010 where 30 percent of the service 
members, notwithstanding a Department settlement agreement, 
were still disenfranchised under the Department's agreement. 
Those voters were abandoned, and it has to do better on that 
end as well.
    Mr. Franks. Thank you, Mr. Eversole. It does seem to me 
like one bipartisan conclusion should be that those who are 
dying to protect this country and this Republic should see 
their constitutional right to vote protected by this Republic.
    Let me, if I could, go to you, Ms. Mitchell. You know, you 
formulated a pretty compelling argument the DOJ is aggressively 
trying to block State efforts to protect against election 
fraud, and it reminds me of DOJ's efforts to block State laws 
cracking down on illegal immigration, in a sense, because it 
almost seems that, instead of enforcing the law without fear or 
favor, the Obama Justice Department is spending a lot of time 
making sure laws it doesn't like do not get enforced by anyone. 
And the recent Rasmussen polls show that the overwhelming 
majority of Americans support voter ID laws as necessary and 
nondiscriminatory. Why do you think DOJ is insisting on 
fighting the American people on this issue?
    Ms. Mitchell. Well, Mr. Chairman, that is the $64,000 
question. I don't understand how it is possible for anyone to 
object to the simple practice of showing identification to 
demonstrate that you are who you say you are when you go vote. 
That polling place that we saw on that videotape is where I 
vote. It is across the street from where I live.
    I mean, I got from the District of Columbia my new voter 
registration card. It is on a piece of typing paper. One of our 
RNLA members lives in the District of Columbia, and she got 
five of them, five different names sent to her apartment. Now, 
if she were not an honest person, she could just walk in and 
pretend to be each one of those people.
    And what mystifies me is why anybody would oppose simple 
procedures that will protect the integrity of our election. And 
what is troubling is that the Justice Department, rather than 
taking steps as a law enforcement entity, an agency, and as our 
chief law enforcement officer Eric Holder should be out among 
the public saying we are going to publicize what their election 
crimes manual says, we are going to prosecute vigorously 
election crimes, they are not doing any of that.
    And it just strikes me that when you have the Pew 
Charitable Trust report to which Dr. Weiser referred where 24 
million--one of every eight--voter registrations is either--it 
says either no longer valid or significantly inaccurate, where 
you have 1.8 million deceased individuals listed as voters, you 
have 2.75 million people who have registered in more than one 
State, the simple act of producing an ID to say that you are an 
authentic, eligible voter under the law seems to me completely 
reasonable, and that is what the law of the land is. The 
Supreme Court has upheld that; and our Attorney General, our 
Justice Department should be enforcing that.
    Mr. Franks. Thank you, Ms. Mitchell.
    And I would now recognize the distinguished Ranking Member, 
Mr. Nadler, for 5 minutes.
    Mr. Nadler. Thank you.
    First, I never want to impugn the integrity of our 
witnesses, so I will presume that Mr. Eversole was not aware of 
what I am about to say. Because he told us that the Justice 
Department refused to enforce the law for military ballots in 
New York and let New York get away with 30 days when that 
wasn't enough time.
    The fact is the Justice Department sued the State of New 
York, resulting in a Federal court decision that ordered the 
primary in New York moved from September to June in order to 
enforce the 45-day law. It was the Republican majority in the 
State Senate that refused to move the State primary because 
Congress only has jurisdiction over Federal elections.
    So that we now have a primary in June for Congress and for 
U.S. Senate in order to comply with the 45-day law because the 
Justice Department brought suit, and the State lost in court, 
in Federal court, but we have a September primary for State 
elections because the Republican majority in the State, 
apparently not caring about enforcing the law on 45 days, 
refused to move the State primary to match the Federal primary. 
So we are going to waste $50 million.
    So don't tell me or this Committee or anybody else that 
the--at least in New York, that the Federal--the Justice 
Department hasn't enforced that provision. They brought suit 
against the State of New York, they won the lawsuit, and the 
Federal court ordered the primary moved from September to June 
for that reason. And since I am running in that June primary, I 
know the facts.
    Thank you.
    Ms. Weiser--Professor Weiser, I am sorry--no, that wasn't a 
question. It was a statement of fact. I will give him a 
question to answer if none of this will count toward the 5 
minutes.
    Mr. Franks. You have got it.
    Mr. Nadler. Thank you. Mr. Eversole?
    Mr. Eversole. Well, you know, 1,700 ballots were rejected 
in New York, so they brought an action in 2010. 1,700--more 
than 1,700, I think it was 1,789 military voters were denied 
their ballot, notwithstanding the settlement agreement that the 
Department of Justice brought. Those ballots were thrown in the 
trash.
    Mr. Nadler. In your testimony, you didn't bother mentioning 
the Justice Department then sued the State of New York.
    Mr. Eversole. You are right. They did recently sue the 
State of New York. That is a factual matter. But, again, they 
allowed for a remedy here that does not require----
    Mr. Nadler. So the remedy--so the truth is, then--so the 
truth would be, I think you and I would agree, although I don't 
know the facts about the first step, but assuming what you are 
saying is true, the facts would be that for the 2010 election 
they did not act adequately, but they corrected it for the 2012 
election, brought suit, did not reach a consent decree, won the 
lawsuit, and moved--and the court ordered the primary moved. 
You didn't bother mentioning this to the Committee.
    Mr. Eversole. Well, and that is a fair point. But the point 
I would also make that I think needs to be made very clearly is 
that they did not protect those military voters in the State 
race, and there is a 2010 decision in the district of Maryland 
that says that when you deprive a service member of their State 
rights, their State right to vote, that that is a 
constitutional violation.
    Mr. Nadler. Well, except that the fact is that they--that 
the Justice Department, I believe, argued for that in the 
Federal court, and the Federal court ruled otherwise. The 
Federal court said that they had no jurisdiction to order the 
State to move the State primary.
    Mr. Eversole. Okay.
    Mr. Franks. Mr. Nadler, you are back on the clock here.
    Mr. Nadler. Thank you.
    Ms. Weiser.
    Mr. Franks. He did mention in his testimony exactly as you 
have said.
    Mr. Nadler. I am sorry?
    Mr. Franks. It is in his written testimony exactly as you 
have said.
    Mr. Nadler. Okay.
    Professor Weiser, Ms. Mitchell said that the Attorney 
General's cases against voter ID laws lack merit on the law. Is 
that correct?
    Ms. Weiser. Absolutely not.
    I should start by noting that the Crawford case that has 
been mentioned a number of times has no bearing on the Voting 
Rights Act cases that the Department is currently involved in. 
That was a constitutional action against Indiana's voter ID law 
before the law had ever been put in place, and it did not 
involve allegations of discrimination on the basis of race.
    Right now, under the Voting Rights Act, what the Department 
is required to look at is whether or not the States have met 
their burden of showing that these laws will not harm 
minorities. The evidence that the States themselves put forward 
show that minorities will, in fact, be disproportionately 
harmed by these laws and that tens and in some cases hundreds 
of thousands of minority voters who are already registered to 
vote won't be able to vote under the laws in place.
    Mr. Nadler. Now, Ms. Weiser, there is, I believe, in Texas 
or in some States the voter ID laws prevent use of the State-
issued student ID for college that is necessary to get the in-
State tuition rate. So, in other words, to protect their own 
fisc I presume that they are pretty serious about making sure 
they give a State ID card and a State University ID card only 
to a State resident.
    Ms. Weiser. Uh-huh.
    Mr. Nadler. And this is specifically precluded from being 
used as a voter ID, but gun-carrying registrations are allowed. 
Is there any justification in terms of accuracy? In other 
words, is it harder to get a gun card than--do you have to 
prove your residency more to get a gun registration than you do 
to get an in-State student voter? Is there any possible 
justification for this, other than the fact you don't like 
student voters and you like hunters?
    Ms. Weiser. There are certainly different requirements for 
obtaining student IDs and for obtaining the concealed handgun 
licenses. Both of them, though, are fairly rigorous, and both 
of them require--look at a variety of pieces of evidence. So 
there really is no justification for this kind of cherry-
picking.
    Most earlier photo ID laws that have been passed in the 
past recognize all forms of State-issued photo IDs, including 
student--State-issued student photo IDs, State-issued 
employment IDs. These kind of IDs are now being excluded by the 
laws that we are seeing this year and for no good reason.
    Mr. Nadler. Has there any reason been stated?
    Ms. Weiser. I am not aware of any good reason that has been 
stated.
    Mr. Nadler. Thank you.
    Could you finally--before my time runs out, could you 
elaborate on how voter ID laws disenfranchise certain classes 
of voters?
    Ms. Weiser. Yes. Pardon me?
    Mr. Nadler. Could you elaborate on how these voter ID laws 
disenfranchise certain classes of voters?
    Ms. Weiser. Certainly.
    The evidence is and all--study after study shows that 
minorities, young people, low-income people are far less likely 
to have the kinds of State-issued photo IDs required by these 
laws. This has been confirmed repeatedly. And even in the few 
elections where photo ID laws have already been put in place, 
there have been a number of people who have been denied the 
right to vote, some even mentioned by Ms. Mitchell today. But 
there have been thousands of provisional ballots cast across 
the country by people who did not have a photo ID at the polls 
and countless more people who didn't show up because they 
couldn't meet those requirements, and I would be certainly 
happy to provide more information to the Committee on that.
    Mr. Nadler. Thank you.
    Mr. Franks. I now recognize Mr. King for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    I apologize, I slipped in here a little bit late after you 
had opened your opening remarks, and I missed that video, and I 
would ask if they could run that video again, at least for my 
benefit.
    Mr. Franks. Absolutely.
    Mr. Conyers. Mr. Chairman, I will not object.
    Mr. Franks. The Chairman appreciates that.
    It is the gentleman's time, I believe, anyway.
    [Played video]
    Mr. King. Thank you, Mr. Chairman. I thank staff for 
queuing that up for me again.
    I am shocked that the Attorney General isn't shocked. I am 
shocked that the Attorney General hasn't offered a response to 
this in a meaningful way.
    I sit in this Committee, and I have a friendly relationship 
with the former Chairman of the Judiciary Committee. And I 
remember and he will remember me presenting an acorn to him 
about 2007 asking for hearings on ACORN, and we had a good 
discussion on that. We had private meetings working that to try 
to get that done.
    I remember the gentleman from New York, Mr. Nadler, say 
before this Committee that he thought it would be a good idea 
to investigate ACORN and walk that back some subsequent to that 
time. But it would have been a good time to investigate ACORN.
    It took a James O'Keefe to get this ACORN issue brought 
before America, and I carry this acorn in my pocket every day 
to remember what happens to the foundation of American liberty 
when you have corrupt elections, when you have elections and 
votes that are being disenfranchised by fraudulent votes.
    Mr. Nadler. Mr. Chairman, point of personal privilege.
    Mr. King. We can suspend the clock.
    Mr. Franks. We will suspend. Please, sir.
    Mr. Nadler. I don't believe I ever at any time said that I 
thought it would be a good idea to hold a hearing on ACORN. I 
did not, and I do not think that. I said at the time, if memory 
serves, that I would be happy to hold a hearing if credible 
evidence were developed that would justify that, but I never 
said it would be a good idea to hold a hearing on ACORN.
    Mr. Franks. Has the gentleman reconsidered since?
    Mr. Nadler. I have not.
    Mr. Franks. Okay, just wanted to make sure.
    Mr. King. I think I am reclaiming my time that I didn't 
lose, and I will acknowledge the clarity that is in the memory 
of Mr. Nadler. However, it gave me a high degree of optimism 
that we would do the investigation that we needed to do and 
should have done. And at that point if there had been a follow-
through on the part of the then majority we would have had a 
bipartisan approach to cleaning up corruption in elections.
    We did not get that. Instead, we got a waived vote on the 
floor of the House and the Senate that shut off all funding to 
ACORN itself, and so that has to be a part of the thought 
process that we are looking at at corrupt elections. And they 
admitted to over 400,000 false or fraudulent voter 
registrations, and there have been multiple prosecutions for 
fraud, as Ms. Mitchell said. And so I would turn my----
    Maybe I do have a couple other narratives quickly. And that 
is I went to Massachusetts for Scott Brown's election, 3 days, 
and I went into the voting booth or into the voting area in a 
Vietnamese region in Boston. And there a fellow came up that 
did not speak English. They asked him who he was, and they 
couldn't understand the name that he was giving. They turned 
the voting rolls around and said, which one are you? He picked 
one and went in and voted. That is just a snapshot of what goes 
on in the polls in America.
    We have had the witness or the Secretary of State of New 
Mexico before this Committee, and when I asked her--this is 
several years ago--when I asked her, if I am working the voting 
area in New Mexico and I am a registered voter and I decide I 
am going to vote when I leave my shift and someone walks in and 
says they are Steve King, can I stop them? Can I challenge 
them? Answer, no.
    So on down to Venezuela, if you want to go vote for Hugo 
Chavez, you have to show a picture ID.
    In my short time that I have remaining, I would like to 
direct my question to Ms. Mitchell. In the States you have 
listed in your testimony, the 10 States--it starts with Iowa 
and it ends with Florida--can you tell me whether it is the 
Attorney General or the Secretary of State that is moving these 
actions for voter fraud and what the political affiliation 
would be of those who are advocating cleaning up the voter 
fraud that is taking place in America?
    Ms. Mitchell. No, Mr. King, I don't know the partisan 
affiliation. But what I can tell you is that they are State and 
local authorities, both election officials and local law 
enforcement or district attorney. There is not a single 
instance where the Department of Justice is assisting in the 
prosecution. And that is one of the things that is disturbing 
to me, is that it is convenient, isn't it, to announce that--to 
not prosecute these cases of voter fraud or election crimes and 
then to announce there are none. That to me is quite 
convenient, and I think that is what this Committee needs to 
ensure does not continue to happen.
    Mr. King. I thank the witnesses, and I yield back the 
balance of my time.
    Mr. Franks. Thank you, Mr. King; and I will not overlook 
you this time, Mr. Conyers. You are recognized for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    May I have unanimous consent to put in the Election 
Protection--You Have the Right to Vote document?
    Mr. Franks. Without objection.
    Mr. Conyers. Thank you.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
    
    
    
    
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    Mr. Conyers. Now, we have a serious set of problems about 
voting, and we need to do as much about it as possible. But it 
is hard for me to imagine that the Attorney General of the 
United States, the chief law enforcement officer, Eric Holder, 
is somehow laying down on the job about getting people 
registered and able to vote more easily and to have--to ensure 
that their votes are counted.
    What we are in need of in this Committee is to have a 
hearing that examines the number of laws that significantly 
impact access to voting, and that is the presentation of voter 
ID, and I am going to ask our attorney, Ms. Weiser, to expand 
on why some of these forms of identification are, in fact, 
restrictive.
    Second, that we don't have any massive fraud problems. We 
have no record of people voting in great numbers who should not 
be voting. And then there is this old scheme going on in many 
States to eliminate early voting opportunities, same day 
registration, and even registering people to vote. I think 
these are the kind of problems that this Committee could do 
much more with, and I am going to ask the Chairman and the 
Ranking Member to join me and Chairman Smith in additional 
hearings in this area.
    I would like now to yield to our distinguished witness.
    Ms. Weiser. Thank you. Thank you, Mr. Chairman.
    As I noted, the ID laws that we have seen passed this year 
are far more restrictive than the ones we have seen in the 
past, and they ask for IDs that 11 percent of Americans, 
largely minorities, younger voters, older voters, people with 
disabilities, the poor, do not have. The fact that 73 percent 
of Americans might think this is a good idea is not surprising, 
when 89 percent of them actually have these forms of IDs, but 
we do not allocate--but this kind of support is not a good 
enough reason to exclude the 11 percent of people who do not 
have those IDs. That is not what constitutional rights or the 
Voting Rights Act are for.
    And I should note that, despite what has been said, the 
reason, the justification put forward for these laws is one 
that is actually nonexistent. The kind of voter fraud that 
these laws address, in-person impersonation fraud, has been 
shown investigation after investigation, study after study to 
be virtually nonexistent. An American is more likely to be hit 
by lightning than to commit this kind of voter fraud.
    And it is not because people have not been looking or 
because the Department of Justice has not made this enough of a 
priority. From 2002 through 2005, this was, in fact, a top 
priority of the Department of Justice to investigate and 
prosecute voter fraud. And what they came up with is 38 
possible cases and only one that involved in-person 
impersonation fraud over hundreds of millions of votes cast. So 
this is really something that we already have good laws in 
place that prevent this.
    Mr. Conyers. Professor, do you have any view of Crawford v. 
Marion that we need to clear up in this discussion before the 
Subcommittee today?
    Ms. Weiser. Well, certainly I should add that the Crawford 
case did not hold that voter ID laws generally are 
constitutional or that they are not discriminatory. What the 
Crawford court said is that the Indiana law on the record, the 
very limited record before it, before the law had ever been put 
in place, could not be invalidated on its face. The plaintiffs 
had to come back if they wanted to and actually show that the 
law, as applied in real life, would actually discriminate or 
would actually disenfranchise eligible voters before the Court 
would actually consider that kind of challenge. So it actually 
made no pronouncement about the legality under the Constitution 
or any other law of voter ID laws in particular as applied in 
the real world.
    Mr. Conyers. Thank you. And thank you, Mr. Chairman.
    Mr. Franks. Thank you, Mr. Conyers.
    I would now recognize Mr. Scott for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Ms. Weiser, following up on that, there appears to be a 
difference in challenges whether you are a noncovered State in 
a constitutional challenge in free clearance under section 5. 
In the Crawford case that you have indicated there was no 
evidence of a discriminatory effect, and if you don't know one 
way or the other, what happens to a constitutional challenge?
    Ms. Weiser. In a constitutional case, you need to actually 
prove--you need to prove the discriminatory intent. In the 
Voting Rights Act, the burden is on the State.
    Mr. Scott. And if there is no--if you don't know one way or 
the other, you lose the constitutional challenge?
    Ms. Weiser. That is correct.
    Mr. Scott. But the State does not carry its burden to show 
that it is not discriminatory, so it cannot be precleared if 
nobody knows. Is that right?
    Ms. Weiser. That is right.
    Mr. Scott. And the covered States, the covered--isn't it 
true that the covered States are covered the old-fashioned way, 
they earned it?
    Ms. Weiser. Certainly they covered--this Congress amassed a 
very extensive record in 2006 demonstrating that the States 
that are covered under section 5 of the Voting Rights Act still 
have a problem of discriminating against minorities in voting 
and still merit coverage under that law.
    Mr. Scott. Thank you.
    Ms. Mitchell, you mentioned somebody that got multiple 
voter cards, presumably because people didn't bother to change 
address, and they all got sent to the same person. Are you 
suggesting that we need procedures to protect against somebody 
showing up multiple times in the same precinct, claiming to be 
different people in the same precinct? Is that something we 
need to concentrate on?
    Ms. Mitchell. I think whatever steps we can take to ensure 
the integrity of the election is appropriate.
    Mr. Scott. You are not suggesting that somebody showing up 
multiple times in the same precinct is a problem?
    Ms. Mitchell. You think that that can't happen? I 
absolutely believe it can happen. These polling places are 
chaotic.
    Mr. Scott. Okay. Somebody showing up multiple times in the 
same precinct is a problem that needs a focus.
    Can you tell me the process, Ms. Mitchell, of obtaining an 
ID sufficient to comply with voter ID laws, what the process is 
if you don't have an ID?
    Ms. Mitchell. If you do not have an ID, it varies from 
State to State. But I can tell you that in most of these 
States, generally speaking, certainly in the case of South 
Carolina and in the case of the Virginia law that is pending at 
the moment, in most of these cases, there are alternatives. You 
can cast provisional ballots. The States will issue free IDs, 
will provide transportation to obtain the IDs.
    Mr. Scott. Okay. What is the process? What documents do you 
need?
    Ms. Mitchell. To be able to get an ID? I do not know the 
answer to that question. You go and have your photograph taken 
at a----
    Mr. Scott. Are you a lawyer?
    Ms. Mitchell. I am, but that varies from State to State.
    Mr. Scott. Okay.
    Ms. Mitchell. So which jurisdiction are you asking about?
    Mr. Scott. Well, maybe that is the point. If you don't have 
an ID, you don't even know where to--a lawyer doesn't even 
know, can't even articulate where you would start.
    Ms. Mitchell. Well, different States would have different 
requirements. For instance, if you move into the District of 
Columbia--when I moved into the District of Columbia, you can 
present a utility bill, you can present a copy of a--you can 
show your check, a checkbook that has your name on it, you can 
show a lot of different kinds of information.
    Mr. Scott. But that is not a photo--that is not with your 
photo ID.
    Ms. Mitchell. No, that is in order to obtain your photo ID.
    Mr. Scott. You can get a photo ID sufficient with a utility 
bill?
    Ms. Mitchell. In most jurisdictions, yes.
    Mr. Scott. Okay. How do you prove your citizenship?
    Ms. Mitchell. Well, the Federal law requires that you have 
to have a birth certificate or a passport. And, actually, it is 
the Federal law today, as enacted by Congress in 1986, that in 
order to get a job every employer in this country is supposed 
to require two forms of proof of citizenship.
    Mr. Scott. Ms. Weiser, can you explain how long it takes to 
get some of these documents and some of the problems? Like if 
you were adopted or if you are old and no hospital records are 
available and if your name doesn't agree with the birth 
certificate, like you were married or divorced or something, 
what kind of complications can occur and how long it can take 
to get an ID?
    Ms. Weiser. Certainly. Ms. Mitchell is correct that the 
requirements for obtaining photo ID do vary State by State, but 
in virtually every State a birth certificate is required, and 
that is something that certainly has caused a lot of problems 
for many potential voters seeking to get IDs.
    There was a highly publicized case of a 96-year-old woman, 
Dorothy--I forget her last name--from Tennessee who did not 
have a copy of her birth certificate and was unable to obtain 
photo ID in order to vote, and she had been voting for 70 
years. This is something that many individuals get caught up in 
a catch-22 of needing a birth certificate to get a photo ID, 
and of needing a photo ID in order to get a birth certificate 
issued, as one example.
    Many States certainly do not have expedited procedures for 
people to get photo IDs. There is a lot of processing that goes 
into that, and that could also create a lot of snafus for 
people seeking to vote, as another example.
    Mr. Scott. How long can this take?
    Ms. Weiser. I don't know the range of time, but I am happy 
to provide that in writing after.
    [The information referred to follows:]

    
    
                               __________

    Ms. Weiser. And I should also add that the documents that 
are required to obtain photo IDs that are supposedly free now 
in the States that are requiring them typically cost money and 
typically are not made available for free, with the single 
exception of the Kansas birth certificate, which now can be 
made available for free. And so these IDs will also create 
financial burdens for those seeking to obtain them simply for 
voting.
    Mr. Scott. And so it doesn't prevent you from voting, it 
just puts a little barrier. So you can't identify a single 
person who was denied the right to vote. But if you are trying 
to register--if a thousand people are trying to register, a lot 
of them are just not going to get their paperwork in on time to 
be able to register and show up to vote; is that true? Some of 
them----
    Ms. Weiser. That certainly sounds accurate. But there are 
also many people who, no matter how hard they try, are still 
unable to obtain photo IDs, even those who think about it 
months and months in advance of the election. So, for some 
people, it is actually an absolute barrier as well.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Franks. And thank you, Mr. Scott.
    Without objection, the Chair would submit for the record an 
article by Hans von Spakovsky, Every Single One: The 
Politicized Hiring of Eric Holder's Voting Section. I commend 
it to your reading.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Franks. And without objection all Members will have 5--
--
    Mr. Nadler. Mr. Chairman.
    Mr. Franks. Please.
    Mr. Nadler. I ask to be recognized for two unanimous 
consent requests.
    Mr. Franks. Please.
    Mr. Nadler. First, Mr. Chairman, I ask unanimous consent to 
place in the record the recent Third Circuit Court of Appeals 
decision in RNC versus DNC rejecting the RNC's motion to get 
out from under the 1982 consent decree barring the RNC's--that 
is Republican National Committee's--historic practice of voter 
intimidation and disenfranchisement. The court said the 
continuation of the consent decree was still necessary. I ask 
unanimous consent this be placed in the record.
    Mr. Franks. Without objection.
    Mr. Nadler. Thank you.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Nadler. I also ask unanimous consent to say that I 
have, since speaking earlier, read Mr. Eversole's prepared 
testimony, and in his prepared testimony he does reference the 
2012 decision of the court, the Federal court in New York, so 
what I took to be his misleading testimony was--it was 
misleading but only by omission of what was in the written 
record. So I want to acknowledge that he was in his written 
testimony completely honest and complete.
    Mr. Eversole. Thank you.
    Mr. Franks. Thank you, Mr. Nadler.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses which we will forward and ask the witnesses to 
respond as promptly as they can so that their answers may be 
made part of the record.
    Professor Weiser, we will be forwarding you questions from 
my office related to the claims of 11 percent of the people. We 
don't know if that includes incapacitated people, incarcerated 
people, former felons, those 60 percent who decide not to vote 
at all. So we will be forwarding that.
    And without objection all Members will have 5 legislative 
days within which to submit any additional materials for 
inclusion in the record.
    With that, again, I thank the witnesses sincerely for 
coming, thank the Members and observers, and this hearing is 
now adjourned.
    [Whereupon, at 10:30 a.m., the Subcommittee was adjourned.]


                            A P P E N D I X

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               Material Submitted for the Hearing Record

 Material submitted by the Honorable Trent Franks, a Representative in 
 Congress from the State of Arizona, and Chairman, Subcommittee on the 
                              Constitution















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Material submitted by the Honorable Jerrold Nadler, a Representative in 
 Congress from the State of New York, and Ranking Member, Subcommittee 
                          on the Constitution

































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   Response to Post-Hearing Questions from Cleta Mitchell, Partner, 
                            Foley & Lardner































                                

    Post-Hearing Questions submitted to M. Eric Eversole, Director, 
                        Military Voting Project





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                                  Note

July 31, 2012: In reply to follow-up requests to respond to the 
post-hearing questions for the record, Mr. Eversole opted to 
decline to respond to these questions.

                                

         Response to Post-Hearing Questions from Wendy Weiser, 
    Director of Democracy Program, New York University School of Law




















                                

 Response to Post-Hearing Questions from J. Christian Adams, Attorney, 
                       Election Law Center, PLLC





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                                  Note

July 31, 2012: In reply to questions for the hearing record, 
Mr. Adams' responses would be identical to those of Ms. 
Mitchell's. Please refer to Ms. Mitchell's responses and the 
attachments submitted with her response.

                                 
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