[Senate Hearing 112-945]
[From the U.S. Government Publishing Office]










                                                       S. Hrg. 112-945

  NEW STATE VOTING LAWS III: PROTECTING VOTING RIGHTS IN THE HEARTLAND

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

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                     CIVIL RIGHTS AND HUMAN RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 7, 2012

                               __________

                            CLEVELAND, OHIO

                               __________

                          Serial No. J-112-74

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
  
  
  
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
CHUCK SCHUMER, New York              ORRIN G. HATCH, Utah
DICK DURBIN, Illinois                JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

    Subcommittee on the Constitution, Civil Rights and Human Rights

                    DICK DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont            LINDSEY GRAHAM, South Carolina, 
SHELDON WHITEHOUSE, Rhode Island         Ranking Member
AL FRANKEN, Minnesota                JON KYL, Arizona
CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
                                     TOM COBURN, Oklahoma
                 Joseph Zogby, Democratic Chief Counsel
                  Walt Kuhn, Republican Chief Counsel
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                            C O N T E N T S

                              ----------                              

                         MAY 7, 2012, 9:32 A.M.

                     STATEMENT OF COMMITTEE MEMBER

                                                                   Page

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois.....     1
    prepared statement...........................................    75

                               WITNESSES

Witness List.....................................................    33
Arredondo, David G., Director, International Student Services, 
  Lorain County Community College, Elyria, Ohio..................    13
    prepared statement...........................................    37
Davis, Carrie L., Executive Director, League of Women Voters of 
  Ohio,
  Columbus, Ohio.................................................    15
    prepared statement...........................................    39
Fellows, Dale, Republican State Central Committeeman, Lake County 
  Republican Party, and Executive Committee Member, Willoughby 
  Hills, Ohio....................................................    17
    prepared statement...........................................    50
Fudge, Hon. Marcia L., a Representative in Congress from the 
  State of Ohio..................................................     7
    prepared statement...........................................    34
Moore, Gregory T., Campaign Director, Fair Elections Ohio, 
  Cleveland, Ohio................................................    18
    prepared statement...........................................    52
Tokaji, Daniel P., Professor of Law, The Ohio State University, 
  Moritz College of Law, Columbus, Ohio..........................    12
    prepared statement...........................................    63

                               QUESTIONS

Questions submitted to Dale Fellows by Chairman Durbin...........    83

                                ANSWERS

[Note: At the time of printing, the Committee had not received 
  responses from Dale Fellows.]

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Advancement Project, Donita Judge, Esq., Lead Voter Protection 
  Attorney for Ohio, statement...................................   159
American Civil Liberties Union (ACLU), Laughlin McDonald, 
  Director, ACLU Voting Rights Project, May 7, 2012, letter......    84
American Civil Liberties Union (ACLU), Attachment: Plaintiffs' 
  Motion for Preliminary Injunction in the case of Frank v. 
  Walker, April 23, 2012, legal document.........................    95
American Civil Liberties Union (ACLU) of Ohio, Christine Link, 
  Executive Director, and Mike Brickner, Director, Communications 
  and Public Policy, statement...................................    86
American Federation of Labor-Congress of Industrial Organizations 
  (AFL-CIO)--Ohio, Pierrette ``Petee'' Talley, Secretary 
  Treasurer, statement...........................................   164
Asian Services In Action, Inc. (ASIA), Deborah Wang, 
  Communications and Policy Consultant, statement................   166
Block, Rabbi Richard A., The Temple--Tifereth Israel, statement..   214
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio.......     4
    prepared statement...........................................    79
Brunner, Jennifer, Co-Chair, Fair Elections Ohio, and former 
  Secretary of State of Ohio, statement..........................   170
City of Dayton, Dayton, Ohio, Hon. Gary D. Leitzell, Mayor, Matt 
  Joseph, City Commissioner, Dean Lovelace, City Commissioner, 
  Nan Whaley, City Commissioner, and Joey D. Williams, City 
  Commissioner, statement........................................   168
Eisner, Adele, Election Integrity Activist, Cleveland, Ohio, 
  statement......................................................   150
Garson, Stuart I., Chair, Cuyahoga County Democratic Party, 
  statement......................................................   232
Heard, Hon. Tracy Maxwell, Ohio House of Representatives, 
  Minority Whip, statement.......................................   227
Lawyers' Committee for Civil Rights Under Law, Washington, DC, 
  statement......................................................   234
Leadership Conference on Civil and Human Rights, The, Wade 
  Henderson, President and Chief Executive Officer, statement....   247
Leiken, Hon. Earl, Mayor, City of Shaker Heights, statement......   183
Linking Employment, Abilities and Potential (LEAP), Deborah 
  Nebel, Director, Public Policy, statement......................   181
Miller, Rev. Stanley R., Shaffer Memorial United Methodist 
  Church, statement..............................................   218
National Action Network (NAN), Rev. Al Sharpton, President and 
  Founder, Rev. Dr. W. Franklyn Richardson, Chairman, and Tamika 
  Mallory, National Executive Director, statement................   184
Northeast Ohio Coalition for the Homeless (NEOCH), Brian Davis, 
  Director of Community Organizing, statement....................   188
Northeast Ohio Voter Advocates (NOVA), Norman Robbins, Research 
  Director, statement............................................   194
Nosanchuk, Rabbi Robert A., Anshe Chesed Fairmount Temple, 
  statement......................................................   215
Ohio Education Association (OEA), Patricia Frost-Brooks, 
  President, statement...........................................   202
Ohio Women with Disabilities Network (OWDN), Karla Lortz, 
  President, statement...........................................   204
Pipe Fitters Local Union 120, Terence M. McCafferty, Business 
  Manager/Financial Secretary-Treasurer, statement...............   206
Policy Matters Ohio, Pamela Rosado, Outreach Coordinator, and 
  Greater Cleveland Voter Coalition, statement...................   208
ProgressOhio, Columbus, Ohio, statement..........................   210
Project Vote, Washington, DC, statement..........................   212
Reece, Hon. Alicia, Ohio House of Representatives, statement.....   220
Stinziano, Hon. Michael, Ohio House of Representatives, statement   225
Turner, Hon. Nina, Ohio Senate, Minority Whip, statement.........   230
We Are Ohio, Courtney Johnson, Teacher, Ironton, Ohio, and Doug 
  Stern, Firefighter, Cincinnati, Ohio, statement................   251
Williams, Sandra, Ohio House of Representatives, letter to Hon. 
  Dick Durbin, a U.S. Senator from the State of Illinois, May 1, 
  2012...........................................................   253
 
  NEW STATE VOTING LAWS III: PROTECTING VOTING RIGHTS IN THE HEARTLAND

                              ----------                              


                          MONDAY, MAY 7, 2012

                      United States Senate,
     Subcommittee on the Constitution, Civil Rights
                                  and Human Rights,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:32 a.m., at 
the Carl B. Stokes United States Court House, 801 West Superior 
Avenue, Cleveland, Ohio, Hon. Dick Durbin, Chairman of the 
Subcommittee, presiding.
    Present: Senator Durbin.
    Also present: Senator Brown of Ohio.

             OPENING STATEMENT OF HON. DICK DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chairman Durbin. This hearing of the U.S. Senate Judiciary 
Subcommittee on the Constitution, Civil Rights, and Human 
Rights will come to order. The hearing today is entitled ``New 
State Voting Laws III: Protecting Voting Rights in the 
Heartland.''
    This hearing will assess the current state of voting laws 
recently passed throughout the country and examine the 
potential impact of HB 194, Ohio's new voting law.
    Good morning. My name is Dick Durbin. I am a United States 
Senator from Illinois, Chairman of this Subcommittee. For those 
who are attending their first congressional hearing, let me 
explain how we are going to proceed.
    I will deliver a brief opening statement and recognize my 
colleagues Senator Sherrod Brown and Congresswoman Marcia Fudge 
for their opening statements. We will then turn to our other 
witnesses for their opening statements, and after that, Senator 
Brown and I will have some questions for the witnesses.
    There is perhaps no right in America more essential to our 
democracy than the right to vote. Show me a person who cannot 
express their preference at the ballot box, and I will show you 
a person likely to be ignored by those in power. At its best, 
our great country is one with open and vigorous political 
debates, followed by fair and transparent elections where all 
eligible citizens have unobstructed access to the ballot box.
    I do not need to remind anyone in this room that our 
democracy has not always extended the right to vote fairly nor 
equally to all citizens. For generations, women, African 
Americans, and even those without property were denied the 
right to vote. Even after the right to vote was legally 
expanded, for close to a century there was a well-organized, 
sometimes violent, racist campaign that successfully prevented 
many African Americans from exercising the right to vote.
    It took six constitutional amendments, civil disobedience, 
bloodshed, and the loss of too many lives, but--over time--
America learned from our mistakes and guaranteed the right to 
vote, regardless of race, sex, class, income, physical ability, 
or State of residency.
    All of us who now celebrate that progress have a 
responsibility in our generation to remain vigilant in ensuring 
that America's hard-fought progress on voting rights is not 
reversed on our watch.
    That is why we are here today.
    Ohio's new law, HB 194, threatens to make it harder for 
tens of thousands of Ohioans to vote. Unfortunately, Ohio is 
only one of more than 30 States that, in the last 2 years, have 
introduced bills or enacted new laws to restrict access to the 
voting place.
    Last September, this Subcommittee held its first hearing to 
examine the rash of new voting laws passed in States which 
include Wisconsin, Texas, Kansas, Florida, Alabama, Tennessee, 
South Carolina, and right here in Ohio. These laws may have 
different provisions in each State, but together they threaten 
to disenfranchise millions of eligible voters in the next 
election. Let me give you some examples.
    States like Pennsylvania, Wisconsin, Texas, Alabama, 
Kansas, and South Carolina have passed restrictive photo ID 
laws. These States acknowledge that hundreds of thousands of 
their own residents--who are already registered to vote--do not 
currently have a photo ID that would satisfy the new ID 
requirements. Nationwide, the nonpartisan Brennan Center for 
Justice estimates that laws like these will prevent more than 5 
million people from voting in November.
    Other States, like Texas and Florida, are subjecting 
volunteers and nonpartisan organizations, such as the Boy 
Scouts and Rock the Vote, that register voters to onerous fines 
if they fail to comply with unnecessary administrative burdens. 
These volunteer organizations are the primary way that many 
African Americans, Latinos, low-income, first-time, and new 
resident voters register. New laws like those in Florida and 
Texas have led organizations like the League of Women Voters to 
suspend all voter registration activity.
    In January, our Subcommittee conducted its first field 
hearing in Tampa, Florida, to examine Florida's new voting law, 
which will lead to widespread disenfranchisement of tens of 
thousands of Floridians. We received testimony at that hearing 
from the League of Women Voters in Florida that under Florida's 
new restrictive voting laws, they will not participate in voter 
registration in this election.
    Ohio has joined Florida in rolling back early voting by 
eliminating about half of the early voting period. Across the 
country, early voting has become popular. People vote early 
because they may not be able to take time off work or they need 
child care or they may need assistance getting to the polls. In 
2008, the last Presidential election, 30 percent--almost a 
third--of all votes were cast before election day. Drastically 
reducing the early voting period will lead to longer lines on 
election day, and, sadly, many people will just not vote.
    I am pleased that the Department of Justice has already 
objected to the new laws in South Carolina and Texas and that 
it is challenging Florida's law in court, but we must remain 
vigilant.
    It is not a coincidence that these new voting laws swept 
the country after change in political control in many State 
houses and Governors' offices. The American Legislative 
Exchange Council (ALEC), a conservative advocacy group that is 
funded, in part, by the billionaire Koch brothers, has provided 
guidance to State legislators on voter ID legislation and 
encouraged its passage.
    One need look no further than one of ALEC's founders, Paul 
Weyrich, to understand why ALEC and other conservative 
activists are so aggressively pursuing these laws.
    In a moment of candor, Mr. Weyrich said to supporters, and 
I quote: ``I do not want everybody to vote . . . . As a matter 
of fact, our leverage in elections quite candidly goes up as 
the voting populace goes down.''
    If the goal is to drive down turnout by causing confusion 
and creating barriers to the ballot, then HB 194 is going to 
accomplish that goal in Ohio.
    Four of the most worrisome provisions of HB 194 include: 
cutting the early voting period in half, from 35 days to 17 
days; eliminating the weekend before election day from the 
early voting period; eliminating the requirement that poll 
workers direct voters to the correct precinct; preventing 
counties from mailing applications for absentee ballots to all 
registered voters.
    Unlike voters in some other States, Ohioans are fortunate: 
You have the last word on HB 194.
    Many of the groups and people here today gathered more than 
500,000 signatures to place a measure on the November ballot 
that would repeal HB 194.
    And the outcry from across Ohio that led to the ballot 
measure on HB 194 has persuaded the legislature to consider 
repealing it in full. Senator Brown and I call on the 
legislature to do just that.
    As we will learn from our witnesses today, HB 194 threatens 
to disenfranchise tens of thousands of voters if it is not 
fully repealed. In such an important State, a battleground 
State for both political parties, a State that may decide the 
next President of the United States, the election could be 
decided by a relatively small number of people. Every vote 
counts. Every vote should be counted.
    [The prepared statement of Chairman Dick Durbin appears as 
a submission for the record.]
    I am very pleased to be joined on the dais today by the 
senior Senator from Ohio, my friend Senator Sherrod Brown. 
Senator Brown has been concerned about the disenfranchising 
voting laws that have swept the country in the past 2 years, 
particularly in his home State of Ohio. As Ohio's former 
Secretary of State, he provided invaluable testimony and 
insight at the first congressional hearing on this issue, which 
I chaired in the Constitution Subcommittee. He urged the 
Constitution Subcommittee to come to Ohio to conduct this 
hearing and investigate HB 194, and I am pleased we could 
accommodate his request.
    Before I recognize him, I would like to say two things:
    First, under the rules of the Senate Judiciary Committee, 
the Ranking Republican Member of this Subcommittee, Senator 
Lindsey Graham of South Carolina, was given the freedom to 
choose two witnesses to appear here today and, of course, to 
attend. He could not because of a conflict in his schedule, but 
he chose the witnesses who will appear on behalf of his point 
of view, and they will be part of our witness panel.
    I also want to ask unanimous consent for Senator Brown to 
join me in participating in the hearing. Hearing no objection, 
I will now turn to Senator Brown.
    [Laughter.]
    Chairman Durbin. Senator, the floor is yours.

            OPENING STATEMENT OF HON. SHERROD BROWN,
             A U.S. SENATOR FROM THE STATE OF OHIO

    Senator Brown. That is the way the Senate does things, by 
the way.
    Senator Durbin, thank you. It means so much to me and to 
all of us in this room and to hundreds of thousands of Ohioans 
that you are here. I know that Congresswoman Fudge, when she 
and I talked about this--and she and I have been involved in 
this issue for really ever since the legislature began to 
concern itself with HB 194 and other pieces of legislation, and 
I appreciate her involvement today and her urging Senator 
Durbin also to join us. I thank Judge Oliver for opening up 
this beautiful courtroom to us so that so many people could 
join us and be part of this.
    We will hear from witnesses today. I thank them for joining 
us, and as we hear from them, there have been numerous recent 
efforts, as we know, to erect needless barriers to voting in 
Ohio. These efforts under the guise of preventing fraud and 
cutting spending--those seem to be the two reasons we hear--are 
part of a cynical effort to impede access to the ballot. 
Specifically, HB 194, as Senator Durbin has said, dismantles a 
number of common-sense, effectiveness, and, I underscore, 
bipartisan measures that assist people with voting. More on 
that in a second.
    I am here today not only as Senator of a State often at the 
center of our national elections but also as a two-term, 8-year 
Secretary of State of Ohio charged with administering elections 
from 1983 to 1990. So I understand what goes into ensuring the 
fundamental right to vote. Inherent in that responsibility is 
ensuring that voting is accessible and free of intimidation and 
road blocks.
    As a State, over a period of decades, Ohio legislators 
undertook a bipartisan effort to help Ohioans vote more easily. 
When I was Secretary of State and I would go to the legislature 
about expanding access to registration and to the ballot, 
Democrats and Republicans more often than not worked together 
to make voting laws work for large numbers of people. When I 
was Secretary of State, we understood that civic-minded Ohioans 
had many priorities pulling them in many directions, so we 
sought to make voting and registration a bit easier.
    As Secretary of State, I asked businesses to help out 
Ohio's utility companies cooperate by including registration 
forms in utility bill statements. Driver's license bureaus 
registered people to vote as the old Ohio Bureau of Employment 
Services did. One company housed in the Chairman's State of 
Illinois, the McDonald's Corporation, at our request printed 1 
million tray liners with--voter registration form tray liners 
that were put in McDonald's restaurants all over Ohio. People 
could register to vote on their tray liners, so occasionally 
someone turned in registration forms with ketchup and mustard 
stains.
    [Laughter.]
    Senator Brown. We accepted them, and I assume some of them 
still exist in Boards of Elections around the State as official 
voter registration forms.
    Today, instead of protecting the right to vote, we have 
seen shameless attempts to undermine it. In those days before, 
there was a bipartisan recognition that democracy was stronger 
and more vibrant and more representative of all of us if we 
worked to expand access to the vote. We are being told that HB 
194 and laws like it which significantly reduce the number of 
early voting days and make it more difficult for Ohioans to 
exercise their right to vote, they say it will reduce costs and 
reduce the risk of fraud. The overwhelming evidence, however, 
indicates that voter fraud is virtually non-existent and that 
these new laws will make it harder and more costly for hundreds 
of thousands of Ohioans to exercise their right to vote.
    It is symbolically significant that Senator Durbin is 
holding his second field hearing in Ohio following the hearing 
that Senator Durbin did in Florida. During the 2004 
Presidential race, Ohio saw a bit of a rerun of Florida in 
2000, a dysfunctional election marred by electronic voting 
machines improperly tallying votes, and Ohioans waiting in line 
for hours in some cases.
    My wife and I went to Oberlin College, then in my 
congressional district, where voters, most of them young, 
waited for 6 hours to vote. At Kenyon College, an hour and a 
half south of here, not far from where I grew up, voters waited 
9 hours to vote. This was not a question of voter fraud, 
individual voter fraud, or individuals trying to game the 
system. This was not a question of an individual voting 
multiple times. People almost never, ever do that. Voters are 
not going to try to do that. There is nothing in it for a voter 
to try to vote five times and change an election.
    The clouds over the 2004 election in Ohio were caused by 
process, not by individual voters.
    I will say that again. The clouds over the 2004 election 
were caused by process, not by individual voters.
    Now, 7 years later, we see a continuation of the efforts to 
undo a model election system created by Republican and 
Democratic members of the legislature, a bill signed by a 
Republican Governor, as Ohio returns to the headlines again for 
the wrong reasons. The new election law undermines Ohio efforts 
to ensure that all votes are counted. The law dismantles those 
earlier laws I was talking about, voting laws passed by both 
parties and signed by then-Governor Taft several years ago.
    That is what is disturbing. There was consensus--there was 
consensus in Ohio about voting--and now there is an effort by 
one political party to undercut that consensus.
    HB 194 undermines an Ohioan's ability to vote in a number 
of ways. I will focus on two of them in the interest of time.
    First, the bill significantly reduces the early voting 
window. As Senator Durbin said, the bill no longer requires 
election workers--the second point--to redirect voters who 
arrive at the wrong precinct to the correct precinct. Let me 
address them in turn.
    In a seemingly innocuous manner, HB 194 eliminates early 
voting on Saturday, Sunday, and Monday prior to the election--
the three busiest days of early voting. This reduction was made 
despite the fact that in 2008, 19 percent of those who cast 
early ballots voted those early ballots on that weekend 
preceding the election. This significant reduction in early 
voting was made despite the fact that evidence overwhelmingly 
indicates that limiting early voting will cost money and 
disrupt efficiency. This reduction in early voting was made 
without any evidence of fraud and despite the fact that only a 
few years prior, both parties thought it was a good idea.
    HB 194 eliminates Sunday early voting. Make no mistake. 
Cutting Sunday voting was intentional and it was intended to 
suppress voting. On the Sunday before the election, 
particularly in communities of color, Ohioans who work long 
hours during the week go to the polls, fulfilling their civic 
and their spiritual obligations on the same day. There is no 
justification for this. For no good reason, now HB 194 limits 
Boards of Elections' options and increases their costs by 
mandating that they close shop on that Sunday when people are 
coming from church.
    By ending early voting, the lines outside polling stations 
will only get longer, and costs will only increase. This adds 
to frustration and surely it limits voting. Single parents, 
shift workers, and busy professionals who work during the week 
will have unnecessary additional pressures that may prevent 
them from being able to cast a vote. Exercising one's right to 
vote is a sacred duty. It should not be riddled with additional 
burdens making it harder.
    Another burden--and then I will close with this--posed by 
HB 194 is that it discourages poll workers from performing one 
of their most basic functions: helping voters find their right 
precinct. This piece of legislation no longer requires that 
poll workers assist the confused or elderly or disabled or 
young voter in getting to their correct precinct. In essence, 
Ohio law discourages neighbors from helping neighbors. This 
phenomenon is so common that it has a name: right church, wrong 
pew.
    Given the current consolidation of polling places and fewer 
voting locations, we know that to save money the State, 
probably rightly, has begun to consolidate polling places, and 
as a result, there is a great deal of confusion. In Akron, for 
instance, it is extremely likely that voters will increasingly 
come to the correct building to vote, but then they may end up 
in the incorrect precinct in that building. By removing the 
requirement that poll workers direct voters to their correct 
precinct, it has made it difficult for law-abiding Ohioans 
whose only crime is they were not sure which precinct number 
they were in--it makes it extremely difficult for them to cast 
their ballot.
    Mr. Chairman, I conclude with saying that this is a 
solution in search of a problem. It is a solution in search of 
a problem. It is not something we need to do. There was 
consensus in Ohio. The changes which were enacted after the 
2004 election, the problems then, they were corrected. The 
changes that were enacted in 2006, I repeat, by a Republican 
legislature with a Republican Governor, led to shorter lines, 
more clarity, and less frustration for voters. While none of 
the changes I have mentioned today make it impossible to vote, 
as a practical matter they install burdens to voting, burdens 
that simply have no good reason to exist. Ohio deserves better 
when it comes to protecting their fundamental constitutional 
right to cast a ballot.
    Thank you.
    [The prepared statement of Senator Sherrod Brown appears as 
a submission for the record.]
    Chairman Durbin. Thank you very much, Senator Brown.
    We invited the entire Ohio congressional delegation to join 
us today, and I am happy that we have with us our colleague 
Congresswoman Marcia Fudge. Since 2008, Congresswoman Fudge has 
represented Ohio's 11th District, which includes much of 
Cleveland and 22 suburbs. She was one of the first Members of 
Congress to speak out about the rash of new State voter 
suppression laws. She led more than 100 Members of Congress in 
urging the Justice Department to review all new State voting 
laws that have the potential to disenfranchise voters. 
Congresswoman Fudge has hosted national press conferences, 
educational briefings, and meetings with Department of Justice 
officials and worked with activists here in Ohio to place the 
referendum on the ballot on HB 194. She introduced the Voter 
Protection Hotline Act, which would establish a national 
hotline to provide voters with information and the opportunity 
to report intimidation and other deceptive practices.
    Congresswoman Fudge, thank you for hosting us in your 
district today, and the floor is yours.

STATEMENT OF THE HONORABLE MARCIA L. FUDGE, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF OHIO

    Representative Fudge. Thank you very much.
    Thank you, Mr. Chairman, and I would also like to thank our 
senior Senator, Senator Sherrod Brown. I want to as well thank 
all of those who are in attendance today, especially our 
community leaders, our elected officials, our clergy, our civil 
rights community, and our labor community. Thank you very much 
for being here.
    And I want to thank you, Mr. Chairman, for holding this 
very timely and important field hearing today, in particular 
because this district is a district that will be most affected 
by the laws that are in effect today.
    Mr. Chairman, the people of Ohio have spoken. Last year, a 
coalition of voting rights advocates delivered more than 
300,000 valid signatures in opposition to House Bill 194. This 
action, as carried out by the people of Ohio, satisfied the 
requirement necessary to place a referendum on the November 
2012 ballot to repeal House Bill 194.
    According to its proponents, the bill ``makes numerous 
efforts to ensure the integrity of the elections process and to 
simplify the process.'' This statement could be no further from 
the truth.
    Ohio House Bill 194 represents a reversal of voting rights 
in the State of Ohio. It represents confusion and it represents 
disenfranchisement.
    If Ohio House Bill 194 officially becomes law, it would 
reduce access to voting by shortening the early voting period. 
It would decrease the responsibility of poll workers to direct 
confused voters to their correct precincts. This bill would 
make it more difficult for citizens to cast absentee ballots 
and complicate provisional voting. House Bill 194 even 
eliminates the incredibly popular and effective early voting on 
Sundays.
    After House Bill 194 was signed by the Ohio Governor, House 
Bill 224 was passed by both Houses of the Ohio General 
Assembly. House Bill 224 is a bill that aims to improve voting 
for our servicemen and -women and overseas voters--something 
that is wonderful and that we agree with. But, also, it amends 
parts of House Bill 194, and one of those amendments eliminates 
in-person voting the weekend before an election, thus adding to 
the problem facing Ohio voters.
    Recently, the Ohio General Assembly reached a crossroads of 
sorts. The legislature introduced Senate Bill 295 to repeal 
House Bill 194. There are two very significant problems with 
Senate Bill 295. First, it is an attempt to remove the 
referendum from the ballot and, thus, override the 
constitutional right of voters to decide the fate of House Bill 
194 in November. Second, this bill would not completely repeal 
House Bill 194. It would not fully restore early in-person 
voting because of a subsequent amendment made to House Bill 
194.
    Today many questions still remain. How will the Ohio 
Legislature untangle this mess? How will Ohio ensure that the 
confusion already created will not manifest itself before and 
on election day in November? What must be done to ensure that 
the constitutionally guaranteed right afforded by the 
referendum process is protected?
    Ohioans and every citizen across this Nation need to know 
there is a concerted effort underway to limit, suppress, and 
undo the uninhibited right to vote. This sophisticated, 
organized, and well-funded effort is sweeping across America. 
From Ohio to Wisconsin, down to Florida and across to Texas, 
the franchise is under attack.
    The plan is clear: Prevent certain predetermined segments 
of the population from exercising their right to vote. 
Students, the elderly, the disabled, minorities, and low-income 
voters are all targets.
    According to the Brennan Center for Justice, 41 States have 
introduced 176 restrictive voting bills since the beginning of 
2011. A total of 74 bills are pending in 24 States. The 
franchise is under attack.
    The tactics being used today are not new. What we called 
the poll tax 50 years ago is now voter photo ID laws. Instead 
of the physical threats of the 1950s and 1960s, meaning the 
billy clubs and the dogs, unnecessary and confusing laws are 
being used to prevent turnout in targeted communities.
    The Election Protection Coalition reported disturbing 
examples of recent deceptive tactics and voter intimidation. In 
Milwaukee, flyers were distributed telling voters they cannot 
vote if they have not paid their parking tickets. Reports of 
armed gunmen intimidating, mocking, and misinforming voters at 
heavily Latino precincts were reported in Arizona. And right 
here in Ohio, there were reports of flyers falsely providing 
that Republicans vote 1 day and Democrats vote the next day.
    Mr. Chairman, the franchise is under attack. Suppressive 
State laws only perpetuate these deceptive tactics. The men and 
women elected to represent voters are only adding to the 
confusion with bills like Ohio Senate Bill 295 and House Bills 
194 and 224.
    The right to vote is among the most important rights we 
enjoy as Americans. As said best by my friend Congressman John 
Lewis, This right is almost sacred. Because of its importance, 
because of the power behind the vote, it is the one right most 
often compromised. And for the same reasons, it is the right we 
cannot allow to be denied.
    Dr. Martin Luther King, Jr., once said, and I quote: ``The 
ultimate measure of man is not where he stands in moments of 
comfort and convenience, but where he stands at times of 
challenge and controversy.''
    We are living in a time of great challenge and controversy. 
The most vulnerable among us are once again under attack.
    Chairman Durbin and Senator Brown, again, I thank you for 
holding this hearing today. I thank you for your efforts to 
protect the franchise. I stand with you. And to those who would 
disenfranchise us, shame on you who would restrict our voting 
rights. We must continue to protect the right to vote.
    Mr. Chairman, I yield back the balance of my time.
    [The prepared statement of Representative Marcia L. Fudge 
appears as a submission for the record.]
    Chairman Durbin. Congresswoman Fudge, thank you for your 
testimony.
    I am going to ask you a question, the first question I 
asked at the field hearing in Florida. I related it to their 
law which we were taking a look at. I will ask it in the 
context of Ohio.
    Supporters of HB 194 argue that they are trying to suppress 
fraud, those who are trying to vote who are not eligible to 
vote. Critics of HB 194 say that, in fact, what they are doing 
is just suppressing the vote, that the fraud, if there is 
some--and there may be some in every election--is not addressed 
by the law itself.
    So I would like to ask you: Was there evidence of fraud in 
early voting, particularly on the weekend before the election, 
in your congressional district, in Ohio, that might give rise 
to this effort to reduce the opportunity for people to vote 
early across the State of Ohio?
    Representative Fudge. Quite simply, Mr. Chairman, the 
answer is no. There has been no fraud. I believe that the 
number is maybe four cases of fraud in the State of Ohio over 
the last 10 years. It is minuscule, if it exists at all. And 
there is some belief that there has been no reported incidences 
of fraud.
    Chairman Durbin. Let me ask you this question. I am trying 
to figure out how they could reason that failing to direct a 
voter to the proper precinct to vote will somehow lessen fraud. 
It clearly would lessen the vote if the person walks into a 
polling place and ends up at the wrong precinct table in a high 
school gymnasium, for example. So when it comes to directing 
people to the right precinct, as Senator Sherrod Brown said, 
the right church and the right pew, how can that possibly have 
anything to do with voter fraud?
    Representative Fudge. The only reason for something like 
that is, again, to continue to confuse the electorate and to 
stop people from voting, because the other thing it does, if a 
person wants to file a provisional ballot, they think they are 
at the wrong place, it also creates an additional problem with 
the provisional ballot. And so they have now in two different 
ways stopped a person from voting or that vote from counting.
    Chairman Durbin. Thank you.
    Senator Brown.
    Senator Brown. I have one question, Congresswoman Fudge. 
Thank you for joining us. It is along the lines of what Senator 
Durbin said.
    There is a week created, so-called the Golden Week, created 
by the Republican legislature in a bipartisan vote, signed by 
the Republican Governor, where voter registration overlaps, if 
you will, with early voting so that voters may actually 
register and vote at the same time, as they are allowed to in 
some States. Along the lines of Senator Durbin's question, have 
you seen any evidence in your travels around the State, but 
especially in your congressional district, of any even 
accusations of fraud during that week or any evidence of fraud?
    Representative Fudge. No, Senator, and let me just suggest 
to you this: I do not know of any single person who would take 
a piece of identification that is not valid in person to a 
polling place and try to vote. It is the most ridiculous and 
ludicrous thing I have ever heard.
    If there is any fraud, the fraud is in the absentee 
balloting, which is what they did not address because most 
people of means and most people who are not Democrats vote 
absentee. If there is going to be any fraud, it is before 
people come to the polls, because that is the point at which we 
cannot verify who is voting. But that is the one place that 
they did not even address. So they clearly cannot be trying to 
address fraud because they did not address the area where the 
fraud could occur.
    Senator Brown. Thank you.
    Thanks, Mr. Chairman.
    Chairman Durbin. Congresswoman Fudge, that is exactly the 
point that was made at the closing of the Florida hearing, that 
if the object is to lessen fraud, to reduce the number of 
ineligible voters who cast a ballot, why aren't these State 
legislatures addressing the absentee ballot provisions? Which, 
of course, could give rise to fraud as well as any other 
provision in the law.
    Thank you for your clear testimony and staying within the 
time limit. It is so rare on Capitol Hill.
    [Laughter.]
    Representative Fudge. I thank you. Thank you so very much, 
Mr. Chairman. Thank you for having me.
    Chairman Durbin. We appreciate it.
    Our second panel is going to consist of several witnesses, 
and I will introduce them as we are setting up the table here 
and ask them to step forward, if they would, please.
    By way of introduction, Daniel Tokaji is a distinguished 
professor of law at Ohio--at The Ohio State University--I have 
learned that--Moritz College of Law, and a leading authority on 
election law and voting rights. Professor Tokaji has published 
numerous articles in the Nation's most respected law reviews, 
co-authored the casebook ``Election Law.'' A graduate of 
Harvard College and Yale Law School, Professor Tokaji clerked 
for Judge Stephen Reinhardt of the U.S. Court of Appeals for 
the Ninth Circuit. He has litigated many civil rights and 
election law cases, including serving as counsel in cases that 
kept open ``Golden Week,'' as referred to by Senator Brown, for 
simultaneously registration and voting in Ohio's 2008 general 
election.
    After him, David Arredondo, the director of international 
student services at Lorain County Community College. Mr. 
Arredondo is the vice chairman of the Lorain County Republican 
Party Executive Committee and Lorain County chairman of the 
Romney for President Campaign. He has worked in education for 
30 years as an admissions adviser, administrator, writer, and 
adjunct professor. He is a radio news commentator and political 
pundit who appears on local radio shows, expressing opinions 
about various political issues and speaking on behalf of 
Republican candidates. He is a graduate of Miami University, 
where he was a Mexican Government scholar.
    Carrie Davis is executive director of the League of Women 
Voters of Ohio. Ms. Davis has been an outspoken advocate 
against changes to Ohio's election laws that could 
disenfranchise voters. She recently testified at hearings 
before the Ohio General Assembly urging legislators to vote 
against HB 194. Ms. Davis also served as counsel in a number of 
high-profile Ohio election law cases, including Project Vote v. 
Brunner and Boustani v. Blackwell. Prior to joining the League 
of Women Voters of Ohio, Ms. Davis served as staff counsel for 
the American Civil Liberties Union of Ohio, focusing on voting 
rights and good government. She graduated from Albion College 
and Case Western Reserve University School of Law.
    Dale Fellows is an executive committee member of the Lake 
County Republican Party and a member of the Republican State 
Central Committee. Among his extensive public and community 
service, Mr. Fellows previously served as Lake County 
Commissioner and has been a member of the Lake County Board of 
Elections for 18 years. He is president and co-owner of Morgan 
Litho, Inc. and Eagle Advertising. Mr. Fellows is a graduate of 
Kent State University and Lakeland Community College.
    I will note for the record that we received his testimony 
quite late last night, and we did not have the time to go 
through it in the kind of detail we would have liked to.
    Gregory Moore, Sr., is the campaign director for Fair 
Elections Ohio, a nonpartisan advocacy group that developed and 
implemented the statewide campaign to repeal HB 194. Among 
several other previous posts, Mr. Moore was executive director 
of the NAACP National Voter Fund, where he coordinated national 
programs designed to promote voter rights, election reform, 
voter education, and minority participation. During his tenure 
the organization registered 425,000 new voters. Mr. Moore 
founded the Ohio Voter Fund, a statewide organization promoting 
voting rights and civic education. He is no stranger to the 
Judiciary Committee. He served as chief of staff and 
legislative director for Congressman John Conyers of Michigan 
when Congressman Conyers was Chairman of the Judiciary 
Committee in the House of Representatives.
    Now, as is the practice and tradition of this Subcommittee, 
I will swear in the witnesses and ask you each to please stand 
and raise your right hand. Do you affirm that the testimony you 
are about to give before the Committee will be the truth, the 
whole truth, and nothing but the truth, so help you God?
    Mr. Arredondo. I do.
    Ms. Davis. I do.
    Mr. Fellows. I do.
    Mr. Moore. I do.
    Professor Tokaji. I do.
    Chairman Durbin. Thank you. Let the record reflect that all 
of the witnesses answered in the affirmative.
    Professor Tokaji, you are the first to testify.

STATEMENT OF DANIEL P. TOKAJI, PROFESSOR OF LAW, THE OHIO STATE 
               UNIVERSITY, MORITZ COLLEGE OF LAW,
                         COLUMBUS, OHIO

    Professor Tokaji. Thank you so much, Mr. Chairman, Senator 
Brown. I appreciate the opportunity to testify before you 
today. I am the Robert M. Duncan/Jones Day Designated Professor 
of Law at The Ohio State University's Moritz College of Law. I 
want to emphasize that the remarks I make today are on my own 
behalf and not on behalf of The Ohio State University.
    As this Subcommittee is aware, the voting rules around the 
country have engendered a great deal of attention around the 
country in the past decade, no more so than in Ohio. We have 
seen more than our share of voting controversies, particularly 
since 2004. And we have learned something, I think, from these 
controversies.
    We have learned that the right to vote is not something 
that can be taken for granted, that it is not merely a right 
but also a responsibility, and that the responsibility extends 
not merely to exercising our right to vote but to taking 
affirmative steps to protect that right. This is why I am so 
glad that this Subcommittee is paying attention to this issue 
and why I am so glad that you are here in Ohio today.
    We must never forget that democracy exists not for the 
benefit of elected officials or election officials, but for the 
benefit of all of us, we the people of this country. And we 
must take care to ensure that access and equality prevail when 
it comes to our voting rules.
    Now, I have provided very detailed written testimony about 
issues around the country and here in Ohio. I want to focus on 
just a couple of things, Mr. Chairman, in my testimony today.
    The first is this: We have had really serious problems with 
laws and practices that prevent people from exercising their 
right to vote in this State. Those of us who have been here for 
a while remember former Secretary of State Blackwell's order, 
which prohibited registration forms from being accepted unless 
they were on 80-pound paper weight.
    Now, since 2004, I think it is fair to say things have 
gotten better. We have seen some improvements. We have seen 
some degree of stability in our system. Unfortunately, HB 194 
and related changes in our voting system take us in the wrong 
direction.
    Now, I want to focus in the remainder of my testimony on 
three things that I view as particularly problematic. One has 
already been mentioned: the limitations on early voting, going 
from a total of 35 days to a total of just 12 days, limiting 
early voting on Saturdays, and eliminating it entirely on 
Sundays; and as you mentioned earlier, eliminating it on the 
last 3 days prior to election, this will affect somewhere in 
the neighborhood of 105,000 people.
    Why is it so significant, this elimination of early voting 
on Sundays? Well, research has shown that people of color, in 
particular African Americans and Latinos, are more likely to 
turn out to vote early on Sundays.
    Second, the issue that Senator Brown mentioned in his 
opening remarks, this one-word change in Ohio law, but a very 
significant one. Our present law requires that poll workers 
direct voters to the proper polling location if they appear at 
the wrong one. HB 194 would eliminate this requirement. Mr. 
Chairman, Senator Brown, this is essentially giving poll 
workers discretion to discriminate.
    Third, provisional ballots. We have a lot of provisional 
ballots. Most of them get counted, but a lot of them do not, 
approximately 40,000 in 2008. HB 194 will make this problem 
worse. Fortunately, we have a Federal consent decree in effect 
which requires that provisionals be counted if cast in the 
wrong precinct due to poll worker error. But that consent 
decree is now under attack in a lawsuit that has been filed, 
amazingly, by our State legislative leaders.
    For all the complexity of our voting laws--and I realize my 
time has expired--the bottom line here is quite simple: We 
should be making it easier for eligible citizens to vote, not 
more difficult. And, unfortunately, our legislative leaders in 
Ohio seem to be intent on taking us in exactly the opposite 
direction.
    Thank you.
    [The prepared statement of Prof. Daniel P. Tokaji appears 
as a submission for the record.]
    Chairman Durbin. Thank you very much.
    Mr. Arredondo.

  STATEMENT OF DAVID G. ARREDONDO, DIRECTOR OF INTERNATIONAL 
STUDENT SERVICES, LORAIN COUNTY COMMUNITY COLLEGE, ELYRIA, OHIO

    Mr. Arredondo. Senator Durbin, Senator Brown, good morning 
to everyone. Today I come before you to speak in favor of 
supporting fair and honest elections for all American citizens. 
It is our civic duty to ensure the integrity of our electoral 
process at the Federal and State levels. Voting is a privilege 
and a responsibility.
    Our current system is actually a composite of 50 systems 
that vary from State to State. Some require photo 
identification; others do not. Some allow for no-fault absentee 
voting; others do not. Some allow for early voting or Internet 
voting. Currently, 16 different States have enacted a photo ID 
mandate. Fifteen States, including Ohio, require voters to show 
some form of personal identification such as a utility bill or 
a bank statement.
    It would be helpful if we had a more uniform system of 
voting, especially when Federal elections like the election of 
a President are concerned. However, only Congress and the 
Senate can make such a change. In an effort to make voting 
easier and more accessible, Congress and State legislatures 
have lowered the bar for voter registration and the casting of 
ballots. Some proponents would have you believe that any law 
regulating elections is an attack on their constituents' 
rights. Using that logic, voting should be extended 
unconditionally, year-round, 24/7, to ensure that their 
candidates win. Fortunately, the vast majority of Americans do 
not agree with this premise.
    At one time, America did have a voting system that could be 
above suspicion of fraudulent registration and voting. But that 
system went out the door with the motor voter law of 1993, 
enacted by a Democratic majority Congress and signed by 
President Bill Clinton. Through motor voter, it is possible for 
foreign nationals to vote. I was recently made aware that a 
former foreign student of mine was registered to vote in Lorain 
County. This he was able to do when he happened to renew his 
driver's license and was offered the opportunity to register to 
vote. No proof of citizenship was required. Fortunately, he has 
never attempted to vote. American college students have the 
opportunity to hold multiple voting registrations in their home 
State as well as the State where they attend school. There is 
no way of cross-checking these.
    Allow me to share with you how it is possible to reform a 
one-time, pathologically corrupt voting system, that of 
Mexico's. By no means do I suggest that our electoral system is 
as corrupt as Mexico's was prior to 1996. I do, however, 
advocate a major reform of our current system.
    Following the widespread corruption of the 1988 
Presidential race, all major parties agreed to the formation of 
a nonpartisan, nongovernmental electoral commission that would 
conduct the voting process and ensure fair and honest 
elections. This resulted in the creation of the Federal 
Electoral Institute that set about the task of developing a 
system for Federal and State elections through hard-fought 
reforms enacted in 1992, 1993, and 1994. The first Presidential 
election under the new system in 2000 resulted in the election 
of the first non-Institutional Revolutionary Party candidate 
elected president since 1928 in probably the cleanest 
Presidential election in Mexican history up to that time.
    The electoral system created by Federal Electoral Institute 
is open and transparent. Every eligible Mexican citizen has a 
tamper-proof photo ID card with a thumbprint and an embossed 
hologram. All voters are required to vote in their 
neighborhoods. All elections are held on Sundays in Mexico. 
Mexico is a relatively poor country yet does not lower 
standards to allow for the poor to register and vote as is done 
in America. No excuses are made while setting a high standard 
for all with no discernible drop in voter participation. In 
1994, voter registration stood at 45 million. In 2009, 
registration was 72 million.
    Countries like Haiti and Iraq have adopted certain aspects 
of the Mexican electoral system to various degrees. The purple 
thumbs shown by Iraqi voters in their first free elections is a 
practice first employed in Mexico.
    In conclusion, Americans need elections that are above 
question and reproach and should not settle for a current 
system that casts doubt on the outcome, regardless of whether 
the result is close or not.
    Thank you.
    [The prepared statement of David G. Arredondo appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much.
    And now we recognize Ms. Carrie Davis, executive director 
of the League of Women Voters of Ohio.

  STATEMENT OF CARRIE L. DAVIS, EXECUTIVE DIRECTOR, LEAGUE OF 
              WOMEN VOTERS OF OHIO, COLUMBUS, OHIO

    Ms. Davis. Good morning. Thank you, Chairman Durbin, 
Senator Graham, and also thank you to Ranking Member--or to 
Chairman Durbin, Senator Brown, and thanks also to Ranking 
Member Graham and Members of the Subcommittee for holding this 
field hearing today to help focus our Nation's attention on 
this problem of voter suppression legislation that is sweeping 
this country. I am honored to be here today on behalf of the 
League of Women Voters and the League of Women Voters of Ohio.
    As many are aware, the league was founded in 1920 by a 
group of suffragettes who had successfully fought for the right 
to vote, but recognized that that was only the start of the 
battle, not the end, and that we had to be vigilant to hold 
onto that right to vote and preserve it for every eligible 
voter.
    During the last year and a half, we have experienced an 
unprecedented attack on voting rights. As we have heard from 
many prior witnesses, there has been a wealth of bills 
introduced and in many cases passed around the country, and our 
sister leagues have felt the sting of these voter suppression 
bills from one end of the country to the other.
    Just two examples: In Wisconsin, they passed a strict voter 
ID bill and also made it difficult for organizations like the 
league to register new voters. In the State of Florida, they 
passed onerous new restrictions on organizations that want to 
conduct voter registration drives so that our sister leagues 
there would have faced potential penalties, including fines up 
to $5,000 and a third-class felony, for registering eligible 
voters.
    Not surprisingly, many of these battles over voting rights 
are happening in States where close vote counts will have a 
dramatic impact. And if the votes are close and there are 
disputes over implementation of these confusing new laws, there 
is a real risk that our Nation could face a repeat of disputed 
election results being tied up in lengthy and complicated 
litigation and throwing doubt on the legitimacy of the election 
results. In short, we do not want to return to the problems of 
2000 and 2004. We want to move forward, not backward.
    The League of Women Voters of Ohio and its many coalition 
partners have been actively engaged for the last 2 years in 
fighting off a wealth of attacks on voting rights in the State 
of Ohio that run the risk of returning us to the problems we 
saw in 2004. My written testimony details all the numerous 
bills dealing with, for example, restrictive voter ID, the many 
changes made in House Bill 194, the changes made a short 3 
weeks later in House Bill 224, and the current effort in Senate 
Bill 295 to repeal HB 194. And if you are confused already, you 
are in good company because many people across the State of 
Ohio are likewise confused about all these many changes. Yet 
what is strikingly absent from all of these many proposed bills 
is any provision for voter education or poll worker training 
and recruitment to help alleviate all the confusion caused and 
to make sure that we are able to run as smooth and effective an 
election this fall and in future years.
    Many nonpartisan organizations cautioned the Ohio 
Legislature against this legislation, including the League, the 
Miami Valley Voter Protection Coalition, Northeast Ohio Voter 
Advocates, the NAACP, Common Cause Ohio, the Coalition on 
Homelessness and Housing, the ACLU of Ohio, the Women with 
Disabilities Network, and numerous other State and national 
experts and academic experts who pointed out the flaws of this 
legislation.
    As we have heard from other witnesses, there would be 
significant cuts to the time period and availability of early 
and absentee voting. One thing that I would like to add is that 
this, in fact, carries more risks and goes back on progress. 
Because there was such a groundswell of interest by voters in 
voting early and absentee, many counties were able to 
consolidate precincts at a significant cost savings because 
they had fewer voters demanding to vote on election day and 
instead voting early.
    One of those election officials from Montgomery County 
testified on HB 194 and said, ``They consolidated precincts and 
saved money. If these cuts to early and absentee voting went 
through, they would have to either un-consolidate those 
precincts or face the risk of having the long lines that we saw 
in 2004. We do not need that. That is moving us in the wrong 
direction.''
    In addition, both HB 194 and a recent Secretary of State 
directive restrict the hands of counties to send out absentee 
ballot applications to all voters. This was hugely successful, 
and that option has now been taken away.
    There are also concerns about ``right church, wrong pew'' 
and voters no longer being required to be directed to the 
proper precinct.
    In short, gentlemen and Senators and guests who are here 
today, House Bill 194 moves us in the wrong direction. It 
includes many provisions that, if they were to go into effect, 
would harm Ohio elections. If Ohio legislators really want to 
help improve the system, instead of imposing onerous new 
restrictions, they need to focus on improved voter education, 
poll worker recruitment, and poll worker training to make sure 
that the rules we have are implemented fairly and that all 
voters have a chance to have their ballot cast and counted.
    [The prepared statement of Carrie L. Davis appears as a 
submission for the record.]
    Chairman Durbin. Thank you.
    Mr. Fellows, the floor is yours.

      STATEMENT OF DALE FELLOWS, REPUBLICAN STATE CENTRAL 
   COMMITTEEMAN, LAKE COUNTY REPUBLICAN PARTY, AND EXECUTIVE 
            COMMITTEE MEMBER, WILLOUGHBY HILLS, OHIO

    Mr. Fellows. Thank you, Chairman Durbin and Senator Brown. 
It is good to see Senator Brown again. I was sworn in by 
Senator Brown the first time I took office as an elections 
official in the State, so I have a fondness for the Senator for 
that reason.
    I will apologize for the lateness of my testimony. I was 
actually on a family vacation when I was contacted in the 
middle of the week: ``Would you like to do this?'' I said, 
``Okay, sure.''
    Chairman Durbin. That is a legitimate excuse.
    Mr. Fellows. So I was trying to carve out some time to send 
it. I apologize for that.
    I also have to apologize and hope you will indulge me on 
this. I was under the impression we were going to talk about 
the voter ID law in Ohio, so I had my testimony geared toward 
that. I did not realize we were going to talk about HB 194. So 
if you would indulge me, I will talk about HB 194, and it might 
be a little disjointed because I did hear some of the comments 
today, and I know a little bit about it, being immediate past 
president of the Association of Election Officials here in Ohio 
that dealt with this. We worked on this for 3 years with 
Secretary Brunner and then Secretary Jon Husted.
    There is in that bill, as a matter of fact, over 100-some 
changes to the elections law, as my colleagues in the elections 
world have noted, and only a few that are actually 
controversial, if you will. And the whole thing will be 
repealed and is on hold now because of the repeal. And those 
bills go back, again, to HB 260 and Senate Bill 8.
    Let me address some of the things that were mentioned. The 
eligibility and voters' rights, amen, absolutely amen on 
voters' rights. But it is also the voter's right that does not 
disenfranchise that voter that made a legitimate vote. When 
voter ID laws were first implemented, I was shocked at how many 
people came to me and said, ``It is about time we have some 
voter ID laws in Ohio,'' because they felt that people were 
voting who were not actually eligible. There is, of course, 
instances of voter fraud and attempts to defraud the system in 
Ohio, and I can give you all sorts of instances of that.
    But let us talk about cutting the early voting period at a 
cost in that. That was an initiative by the bipartisan Ohio 
elections officials back in 2010 to stop the in-house voting as 
of after Friday or Saturday of the election because we have to 
conduct an election. Most counties cannot afford the resources, 
both monetarily and people-wise, because most counties in Ohio 
are very small and they may only have two people that actually 
work those elections. The same with working on Saturdays and 
Sundays when you only have a staff of two people, the director 
and deputy director.
    Correcting the voting location, it is not a requirement 
that they do not it. They can do it. Our poll workers are asked 
to do that. But it was a liability issue, too, if they happen 
to be drawn into court, as they have been over the years.
    The task force, as I mentioned, was the one that we--and I 
go back to our bipartisan election officials association. If 
there is somebody that should write those laws, maybe it should 
be us because most of those things in there were our 
initiatives that would better the system in Ohio.
    I also challenge everyone here, those on the panel who have 
not already done it and anyone else, to volunteer as an 
election day poll worker. Walk in the shoes of an election day 
board member, Board of Elections worker, because, one, we need 
you, we need those volunteers.
    When I hear about suppressing the vote, again, this is 
going to be something that I did not know we were going to talk 
about, but let me talk to you about that. The long lines on 
election day in 2008 were actually before the election, not on 
the election. We had 4-hour lines in our little county of Lake 
County. We had tons of hype throughout the State about the 
election and everybody getting out to vote, and, in fact, the 
final results were less than 17,000 more voters in the 
Presidential election between the two primary elections--or 
candidates from 2004 where there was no early, as we call it--
people call it ``early voting'' versus 2008 out of over 5 
million in each of those elections.
    The voting period, cutting the--deleting the voting period 
for in-house, I talked about that. The cost of cutting--I mean, 
it is--anyway, I apologize for being a little bit disjointed 
because I was not prepared to talk about this, but let me end 
with one comment.
    Voting is a right, a privilege, and a responsibility that 
we should all take very seriously. It is the essence of our 
democracy. I believe, Senator Durbin, you said that in your 
opening comments. Election officials, legislators, and voters 
should fight every day to protect that right, that privilege, 
and that responsibility with all the fervor we can muster. And 
we must help protect every voter's rights as well as never 
compromise the integrity of the system so that there is the 
utmost confidence that every election is fair and honest. Voter 
ID laws can and should accomplish just that.
    Once again, Mr. Chairman, Senator Brown, and other Members 
of the Committee who are not here, it has been an honor and a 
privilege to present this testimony today, and I look forward 
to any questions and comments you may have of me.
    [The prepared statement of Dale Fellows appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Mr. Fellows.
    I would now like to recognize Mr. Moore. You have the 
floor.

    STATEMENT OF GREGORY T. MOORE, CAMPAIGN DIRECTOR, FAIR 
                ELECTIONS OHIO, CLEVELAND, OHIO

    Mr. Moore. Thank you, Mr. Chairman, Chairman Durbin, 
Senator Sherrod Brown, who I have known for several years, and 
Congresswoman Fudge, we have worked together over the years. My 
name is Greg Moore. I am the campaign director of Fair 
Elections Ohio. I am also here representing the many coalitions 
who came together to put together the campaign which gathered 
over 500,000, half a million, signatures from across the State. 
We are also joined by the co-chair of Fair Elections Ohio, who 
I must acknowledge, Reverend Otis Moss, Jr. There are also 
several members of our allies and friends in organized labor 
and within the clergy who are here. Those clergy who helped us 
get those signatures were the bulk of the volunteer effort, and 
it demonstrates how important the issue of the weekend voting 
is to them. And many of them are in this room, and I want to 
say thank you to all of them, particularly Bishop Clark and 
Bishop Perry and many others who have been working throughout 
the years in support of voting rights.
    We are at a crossroads right now, Mr. Chairman, because 
there are a couple things happening, and my comments and 
prepared testimony goes into great detail about this. We have a 
ballot initiative that is pending on the November ballot. We 
have a piece of legislation, SB 295, that seeks to repeal it. 
But we also have provisions in that bill that take away those 
rights of the voters who have been standing in long lines over 
the years.
    Mr. Fellows mentioned those long lines. Those lines were, 
in fact, on Sunday and on Saturday in 2008, and that is why we 
are fighting so hard for that provision to stay there.
    The members of the Ohio Legislative Black Caucus, chaired 
by Representative Sandra Williams, have been working with us 
and members of both chambers, including Senate Minority Leader 
Eric Kearney, who is one of our committee petition members, and 
Senator Nina Turner, to try and fashion whatever legislation 
there is pending now into something that would represent a full 
repeal of HB 194. But, of course, we have not reached that 
point yet.
    So I am here basically to lend my voice to all those voter 
rights activists in this room who fought so hard to put this on 
the ballot.
    The key to all of this is that many of us are quarreling 
over whether or not the Republican majority has the authority 
to remove this issue from the ballot, and that is certainly 
something we can continue to debate and may even have to go 
through litigation to resolve. But the fact remains that it 
represents one of the few instances, if not the only instance 
in the U.S., where the legislature is in full retreat and 
seeking to repeal voter suppression legislation. In fact, there 
are very few cases where we are able to stop the law from 
becoming implemented.
    In fact, in 2011, we had only 6\1/2\ weeks to collect the 
231,000 plus signatures. Had we not collected those signatures 
by September 29th, all these provisions of HB 194 would have 
taken effect on September 30, 2011. And the election that we 
just had to repeal Senate Bill 5 (Issue No. 2 on the ballot) 
would have been impacted. I would even venture to guess it may 
not have even been the same outcome.
    So we have been able to stop the law from becoming 
impactful both for that election and to have stopped it from 
taking effect for this important 2012 election. In addition to 
that, people circulating petitions now for the repeal of our 
redistricting laws are operating under the current existing 
laws that, again, would have been rolled back had we not 
stopped this effort.
    Now, by all accounts, we will have a vote tomorrow in the 
House of the Ohio Legislature that would determine whether or 
not SB 295 becomes the law. What we are saying--and time goes 
by so quickly--is that today it no longer appears to be a 
question of whether 194 will be repealed. It is now, rather, a 
question of how and a question of when. This speaks to the 
power of the citizens' veto, which we were able to move to the 
highest level just as our friends in organized labor were able 
to do in 2011. In 2012, the citizens' veto is still standing 
strong. And so tomorrow the House of Representatives will be 
taking this issue up. They can restore the provisions of 194--
they can restore the provisions that brings the law back to the 
way they were before 194 was enacted. There will be allies in 
the House offering amendments to 295 that will seek to restore 
the 3-day weekend. We want to take this opportunity to urge the 
legislature--in fact, this may be our final appeal to the 
legislature publicly--to please listen to the voices of the 
people of Ohio, 500,000 people or more have signed the 
petition, the people have spoken. We have seen the law. They 
want it repealed, not partially but fully. They want it 
repealed not next month but tomorrow. And they want it all 
repealed now, or we will repeal it ourselves on November 6th.
    Thank you.
    [The prepared statement of Gregory T. Moore appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Mr. Moore.
    I am going to ask the panel, all of you, a collective 
question. Anyone can respond if they wish.
    As I mentioned with Congresswoman Fudge, the first question 
I ask at each of these hearings is that the critics of the new 
law in Ohio argue that it is designed to suppress the vote of 
people who would otherwise vote--the poor, minorities, elderly, 
disabled, and the like. The supporters of the law say, no, it 
is designed to suppress voter fraud.
    So what history of voter fraud do you have in Ohio that 
would be addressed by HB 194?
    Mr. Fellows. Senator, if we were to talk to pretty much 
most counties in the State, you will have some kind of 
situation that may have occurred. Certainly prior to having 
voter ID laws, you had folks who would come----
    Chairman Durbin. Excuse me, sir. We have got to stick with 
the law, not voter ID.
    Mr. Fellows. Oh, I am sorry.
    Chairman Durbin. It is about early----
    Mr. Fellows. It is 194.
    Chairman Durbin. So what I am trying to say is beyond 
anecdotal evidence and things that people may talk about on 
talk radio, I would like to get into the real----
    Mr. Fellows. I do not want to talk about that----
    Chairman Durbin. The real examples of, for example, 
prosecutions for voter fraud in Ohio relative to early voting 
periods that led the legislature to say, ``We are going to 
restrict these early voting periods.'' So is there a history of 
that that you can point to? How many prosecutions have you had 
for voter fraud in Ohio during the early voting period out of 
the millions of votes that have been cast? Does anybody have 
any idea?
    Professor Tokaji. I do not have a precise number, Mr. 
Chairman, but it is no more than a handful. And the reality of 
the situation, contrary to the myth, is that voter fraud is 
extremely rare in this State and in this country. At the time 
that the ID bill was being debated, I went and I looked for any 
cases I could find of the kind of fraud that the voter ID bill 
would prevent, voter impersonation fraud----
    Chairman Durbin. Mr. Arredondo, do you have examples of----
    Professor Tokaji [continuing]. And I could find not a 
single instance of in-person impersonation.
    Chairman Durbin. Any examples of prosecutions for voter 
fraud?
    Mr. Arredondo. I do know that in Lorain County in the past 
there have been a few cases of voter fraud, and the county 
prosecutor has chosen not to prosecute them. I am also aware 
that in other counties throughout Ohio there have been a small 
similar situation of voter fraud, and the prosecution has 
refused to prosecute them.
    Something else that----
    Chairman Durbin. Excuse me, but I am going to hold you to 
that for a second because I have some other questions. The 
point I am getting to here, in this hearing and others, if you 
are going to change the law that allowed 105,000 Ohio citizens 
to vote in the weekend before the election, you clearly need a 
motive. If the motive is to suppress the fraud that is going on 
during that weekend, case made. But if you cannot even point to 
a prosecution of more than a handful of people, then I think it 
argues that it is about suppressing the vote rather than 
suppressing fraud.
    Mr. Arredondo, I have a question to ask you. You speak 
glowingly about Mexican electoral reform, and one of the things 
that you pointed to was that in Mexico you were allowed to vote 
on Sunday. So if it is a good idea for Mexicans to vote on 
Sunday, why is it a bad idea for people in Ohio to vote on 
Sunday?
    Mr. Arredondo. Well, first of all, let me point out that 
there is no such thing as absentee or early voting in Mexico. 
Everybody votes on the same day, which happens to be Sunday. I 
would be in favor of such a change in our electoral system for 
that kind of a process.
    Chairman Durbin. Why do you think Sunday is a better day to 
vote?
    Mr. Arredondo. Well, first of all, it is not a work day so 
we do not give people an excuse to say, ``I am sorry. I am 
working Monday through Friday. Saturday would be fine, Sunday 
would be fine.''
    Chairman Durbin. That is the point of early voting on 
Sunday before the election, which is being eliminated by HB 
194.
    The second point that you raise is about the motor voter 
law that was passed during President Clinton's administration 
and approved by Congress, and you use an example, you say 
foreign nationals are allowed to vote under motor voter law. I 
am sure you have read that law, and you talked about a student 
who was given an invitation to vote. Any person under the motor 
voter law who wishes to vote has to attest under penalty of 
perjury that they are American citizens, and the penalty is not 
only a fine but up to 5 years in prison. So it may not be a 
casual decision to just go ahead and be a foreign national and 
vote under the motor voter law. Would you agree with that?
    Mr. Arredondo. I do, but in the case of my student, in 
talking with him, he was oblivious to what it was that he was 
signing.
    Chairman Durbin. He would have been handed an attestation, 
and on the attestation he would have been asked if he was an 
American citizen. If he signed that and lied about it, he was 
subjected to a potential of 5 years in prison.
    Mr. Arredondo. We understand that, yes.
    Chairman Durbin. So to suggest that we have loosened the 
laws and made it casual, 5 years in a Federal prison is a 
pretty serious penalty.
    Mr. Arredondo. Myself, I would prefer that someone prove 
that they are an American citizen with a birth certificate or 
with a naturalization paper.
    Chairman Durbin. I would say to you that the laws as they 
exist establish these attestations before one can be allowed to 
vote, and if there was an abuse of this, I would suppose there 
would be a few prosecutions you could point to in the State of 
Ohio. Can you?
    Mr. Arredondo. As I said, prosecutions tend to be very, 
very lax on voter fraud. May I--one thing about the early 
voting, may I answer?
    Chairman Durbin. Of course.
    Mr. Arredondo. Because you were bringing up particularly 
the weekend before. As my colleague Mr. Fellows pointed out 
before, these laws, whether they are done at the Federal or 
State level, really should involve those who are part of the 
system, that is to say, our poll workers, our registrars, and 
they will tell you that the weekend before the election is one 
that is so frenzied and one that occupies them with much detail 
of deploying voting machines and setting up the process so that 
it is done in an absolutely flawless manner, and that they 
would prefer to have those 3 days in order to make sure that 
election day is run without any difficulty.
    Chairman Durbin. Mr. Arredondo, let me just say this: I 
understand that it is extra work. Early voting is extra work. 
By eliminating the opportunity for early voting on the weekend 
before, you are now going to move more of those voters to 
election day. Mr. Fellows talked about some sympathy for these 
election officials. I have it. That is a hard job. In Illinois, 
it is a 12-hour run of responsibility. And they do not get paid 
a heck of a lot of money to do it. But now, by eliminating the 
early voting opportunity, you are shifting more burden to the 
actual election day. They may be lucky in some places to get 
out in 12 hours.
    Senator Brown.
    Mr. Fellows. Mr. Durbin, could I address that real quick? I 
am sorry.
    Chairman Durbin. Of course, please.
    Mr. Fellows. One of the things is election fraud is hard to 
prosecute because usually you cannot catch the person that has 
done it. But when the voter comes into the polls and wants to 
vote and their vote has already been cast and they are told, 
``You cannot now vote,'' what do you do with that person? You 
cannot even catch that person. And that is documented in our 
laws. And what I say to those things is thanking elections 
officials and professionals for the fact that these do not 
happen so often.
    But to your point about election day, your folks on 
election day, that election weekend, in 2008 our professional 
staff was up 42 out of 48 straight hours. I am not even sure 
that that is legal under the Federal labor laws. And we were 
not unusual. There were some that never slept for 48--because 
you have got to administrate that law. And we were there in our 
little county of Lake County until 10 o'clock with voters 
because you want them all to vote the day before the election. 
Then we had to run our lists to let folks know at the polling 
locations, the 157 presiding judges, who had voted already so 
that--because we always on election day have people come in who 
have applied for or taken an absentee vote or voted in-house 
and then come to the polls, forgetting that they had already 
voted, or had said, ``Oh, well, I did not vote my mail-in 
ballot, so I can just come to vote.'' Well, we do not know if 
you have already voted that or not.
    So those lists have to go to the presiding judge, so we had 
to use deputy sheriffs to deliver these to 157 people when they 
had to be down at the polls at 6 a.m.
    Chairman Durbin. There is no argument here. The people----
    Mr. Fellows. Right. That is the process.
    Chairman Durbin. The people working the election offices 
and the polling places really put in the hours, and we thank 
them for it. We can never compensate them enough for that. The 
question, though, is whether or not we want to deny an 
opportunity to vote for those who have similar hardships and 
inconveniences. And the Ohio law, unfortunately, restricts that 
opportunity in early voting.
    I am going to turn it over to Senator Brown. We will come 
back for a second round of questions.
    Senator Brown. Thank you, Chairman Durbin.
    Mr. Fellows, thank you for your advertising for more poll 
workers.
    Mr. Fellows. Yes.
    Senator Brown. That was an ongoing problem. Unlike 
Illinois, where they only work 12 hours, the harder-working 
people of Ohio work 13 hours at the polls, from 6:30 a.m. to 
7:30 p.m., I believe still, right? And we all appreciate that. 
We also know there is a continuing shortage of poll workers. It 
is hard to get people to do that for the little bit of pay and 
the long hours, and to my mind, that is another argument for 
Sunday voting, that we can get more people into the polling 
place earlier.
    I will start with you, Professor Tokaji. In 2004, there 
were serious problems. The legislature fixed those problems in 
2006. The legislature, bipartisan, reacted to the problems of 
2004 election day, which probably everybody in this room is 
familiar with. In 2010, there was an election, and the 
legislature responded by tightening and changing dramatically 
election laws. Did something happen in 2010 that caused the 
legislature to do that? I do not mean the outcome of the 
election, but were there problems in the machinery and 
efficiency and fairness of the election? Were there fraudulent 
activities in 2010 that caused the legislature to need to do 
this?
    Professor Tokaji. Not at all. In fact, I would say that at 
least here in Ohio, 2010 was the least eventful election that 
we have had in a long time from the standpoint of election 
administration problems. And this is largely because we in the 
State--and that means voters, poll workers, and election 
officials--have largely gotten accustomed to, we have absorbed 
the many changes in our election system that have occurred in 
the past decade.
    So we have now got this level of stability which would be 
disrupted by HB 194, and going back to part of your question, 
there is really no explanation for what has happened here and 
in other States other than changes in the composition of State 
legislative bodies.
    Senator Brown. As an observer in 2004 of the elections, one 
of the biggest concerns I had was sort of the changing rules 
and directives that the Secretary of State sent out, to the 
point where I and, I assume, many, many others were confused on 
election day what exactly the laws were. You know, there were 
poll watchers. There were lawyers that came in from out of 
State on both sides to watch and make sure all this was done 
right. You know, I fear that is happening right now with the 
uncertainty that Ms. Davis has talked about.
    Mr. Arredondo, one question for you. You talked about 
lowering the bar for voters and your concerns about fraud. What 
does 194 do to resolve the issue of lowering the bar, as you 
describe it? Can you give me two or three specifics how it 
resolves the issue of our lowering the bar and letting voters 
in?
    Mr. Fellows. HB 194 specifically does not do anything that 
is going to really address that other than the--well, it is 
going to eliminate the Golden Week, and certainly it is going 
to give relief to election workers who, as I pointed out 
before, are compelled to provide service above and beyond the 
call of duty in order to prepare for a well-run election on 
election day. So this is--and not the least of which, 194 is 
designed to save for our counties money that have been strapped 
for increased costs on added days of voting, particularly on 
weekends.
    Senator Brown. When poll workers direct confused voters to 
the correct precinct, is that lowering the bar?
    Mr. Arredondo. You know, first of all, I am not a member of 
the Ohio Legislature, and I am not so sure that I understand 
all of the ramifications of 194, particularly the one about not 
being able to direct voters to proper precincts. That one is 
really beyond my, you know, imagination.
    Senator Brown. Does Sunday voting lower the bar?
    Mr. Arredondo. I am sorry?
    Senator Brown. Does Sunday voting lower the bar?
    Mr. Arredondo. As I said before, I would like to see a 
uniform day of voting that we could all vote on the same day, 
as is done in Mexico. If that happens to be Sunday, I would 
like that to happen.
    Senator Brown. So there should be no early voting at all?
    Mr. Arredondo. I am sorry?
    Senator Brown. Would you prefer we had Sunday voting one 
Sunday in November, presumably, and no absentee, no early 
voting at all?
    Mr. Arredondo. That is correct.
    Senator Brown. That is what you would prefer.
    Mr. Arredondo. We pointed out before that--and I believe 
either you or Senator Durbin mentioned that absentee voting 
certainly opens up the door to fraud.
    Senator Brown. Except none of you on this panel could 
really point to anybody prosecuted for voting--I mean, it just 
strains credibility to think that some person out there is 
going to vote--is going to start voting early in the morning, 
vote in Cuyahoga County, then go to Medina, then go to 
Richland, then go to Morrow, then go to Huron County, cast six 
votes to try to change an election when the chances of getting 
caught exist--I do not know how high they are--and the chances 
of going to prison if you do get caught are very high and your 
chances of changing an election with those six votes that day 
are almost infinitesimal.
    Mr. Arredondo. Let me answer that one of the easiest ways 
to cause fraud by absentee is by college students who are from 
out of State who have the opportunity to register in their home 
State as well as the State where they are attending school. And 
you mentioned Oberlin before as a case in point.
    There are, I believe, 7,000 to 8,000 registered voters in 
the city of Oberlin, yet the population of Oberlin is probably 
about 8,000. So this is evidence of the fact that there are a 
number of students who no longer live in Oberlin who have gone 
elsewhere and are still able to ask for an absentee ballot in 
Lorain County and one in wherever they are now residing. And 
there is no way that we have any kind of a monitoring of that 
kind of a process.
    Senator Brown. I do not agree with that. There are plenty 
of ways, if you are a local election official in that county--
and I believe you actually live in Oberlin, right?
    Mr. Arredondo. I am in Lorain.
    Senator Brown. Okay. You live in Lorain. I am sorry.
    Ms. Davis, do you want to address that?
    Ms. Davis. Yes, thank you, Senator Brown. The question that 
both of you have asked about the number of prosecutions for 
fraud in Ohio was asked during all the legislative hearings in 
both the Ohio House and the Ohio Senate on House Bill 194 and 
all the other bills that have been introduced on election 
issues in the last year and a half. No one there was able to 
answer that question either because we have not had this rash 
of prosecutions in the State of Ohio for voter fraud, although 
we do know where the investigations for fraud are happening. 
And just to give you one example from the 2008 election dealing 
with this so-called Golden Week, where we have the start of 
early voting 35 days before election day and the close of 
registration 30 days before, so we have this 5-day window.
    In 2008, there was a lot of excitement about this overlap 
period. It was litigated in the Federal court for the Northern 
District, the Southern District of Ohio, and the Ohio Supreme 
Court, all of whom concluded that under Ohio law that has to be 
followed. It is not unconstitutional. It does not violate any 
laws. That is perfectly to do. And just in the spirit of full 
disclosure, I was counsel, direct counsel on one of those cases 
and amicus counsel on the other two. That overlap week was 
upheld by numerous courts.
    But we do know where the investigations were occurring, and 
just one example of that in 2008, in Greene County, which is in 
the southern portion of Ohio, and also happens to include a 
number of Ohio's historically black colleges, there a public 
records request was made of the Greene County Board of 
Elections for the number of voters who registered during that 
time and requested an absentee ballot. And due to public 
pressure from all the people questioning why that county and 
why those college communities, that public records request was 
withdrawn. But we know just anecdotally from instances like 
that where the investigations are happening, even though it was 
perfectly lawful, as decided by three courts for people to 
register and request an absentee ballot during that time.
    Chairman Durbin. Ms. Davis, I was going to followup on that 
question, too, because it gets back to the basic point here. 
Anyone who falsifies their application for an absentee ballot 
is subject in most States to a criminal penalty. Is that the 
case here?
    Ms. Davis. Chairman Durbin, yes, that is true. Under 
Section 3599 of the Ohio Revised Code, if you were to falsify 
any of those election documents, it is, in fact, a crime, and 
they can be prosecuted and punished.
    Chairman Durbin. Going back to Senator Brown's point, to 
think that you would hopscotch from county to county, vote at 
your college and then vote back home, and run the risk of going 
to prison every time you did, seems incredible. And I would 
just go on to say that I am not surprised to hear that when 
your legislature asked the same question, where is the voter 
fraud, no one could produce the evidence. It draws you to the 
other conclusion. If it is not about suppressing fraud, it is 
about suppressing votes.
    Mr. Moore, I want to bring you into this conversation. We 
are talking about 105,000 people who voted, or did in one of 
the last elections in Ohio in the early voting. So 105,000 
ballots, what impact could that have on elections that you have 
witnessed in your time?
    Mr. Moore. Well, we do know in 2004 the election was 
decided by the failure to count a lot of those ballots that 
were provisional. So we know that if you have the last weekend 
voting and a lot of those people are coming in that have not 
voted for a while, you could get a number of provisionals 
during that time period. So that 93,000 plus would be an 
extremely important number of people to leave out of the 
equation, especially when this election in Ohio was decided 
only by less than 100,000 votes, literally, in 2004.
    Chairman Durbin. Professor Tokaji made an earlier point 
about the likelihood that minority voters would vote on the 
closing weekend, ``souls to the polls'' efforts and the like. 
So could you testify for the record, if you know, what impact 
this has on the minority vote in terms of eliminating the last 
weekend?
    Mr. Moore. Yes, Senator. I think the problems that we have 
around this issue of the lines is mostly an urban problem and a 
college campus problem, because that is where there are large 
concentrations of voters trying to fit into a small limited 
number of precincts. And when there is a high demand for 
voting, the lines are longer, and there are more people who are 
trying to get access.
    It is very difficult for a student to try to vote when he 
or she has class or a working mother to try to vote when they 
have day-care issues. So that would have a major impact on the 
ability of people to be bale to vote in this election.
    If I could just say one more thing, Mr. Chairman, I worked 
for 5 years on the motor voter bill, 4 years as an advocate and 
1 year as legislative director to Congressman John Conyers, 
Jr., the Ranking Member on the House Judiciary Committee. It 
took us a long time to get that provision together, so I do not 
want anybody to leave this room thinking that the motor voter 
bill, the National Voter Registration Act, created any 
opportunity for people to vote fraudulently. It only creates an 
opportunity for people to register. All the voting happens much 
longer after they have done that.
    A final point that was in my statement which I did not get 
to say: If we use the same logic of shutting down the last 
weekend (the last 3 days), it would be like shutting down 
department stores the last 3 days before Christmas because too 
many people are shopping. It just would make no sense at all 
because you would basically stop the shopping at the highest 
point of demand. And so giving us those 3 days is not just an 
academic argument. The demand is highest right before the 
election, and so to close the doors down and put a padlock on 
the right to vote during those 3 days, after you've given them 
35 days before, is voter suppression because it suppresses the 
ability of people, especially those 100,000 you mentioned, to 
actually vote.
    Chairman Durbin. You could probably get away with that 
because shopping is a privilege and not a right.
    [Laughter.]
    Chairman Durbin. Professor Tokaji, let me ask you, could 
you respond to Mr. Fellows' point on this directing to the 
proper precinct issue? And he raised a question of the 
liability of a poll worker. And as I understand the change in 
the law, first there was mandatory language that said the 
polling official shall direct the person to the right precinct.
    Professor Tokaji. Right.
    Chairman Durbin. Now the language is permissive and it 
opens up a possibility raised by one of the witnesses here that 
a poll worker would pick and choose those that he would direct 
to the right precinct for whatever reason. But the question 
raised by Mr. Fellows whether the poll worker assumed some 
liability under the law, and I think he said may be sued for 
failing to direct a voter to the correct precinct. First, do 
you know if that has ever happened?
    Professor Tokaji. No, and I also teach Federal courts law, 
and I would say that that poll worker would almost surely enjoy 
qualified immunity. The only exception I could imagine is let 
us say a poll worker intentionally was refusing to direct 
African Americans to the proper precinct but was directing 
white voters, for example. If a poll worker was intentionally 
doing that, then conceivably they might be, but you would have 
to have that level of conduct for anyone to be personally 
liable. And, in fact, by eliminating this requirement, it is 
opening the door to new litigation of the kind that 
materialized in Florida back in 2010--in 2000, rather.
    Chairman Durbin. I will ask Ms. Davis, who apparently has 
witnessed some of the testimony about HB 194. Was there 
evidence that poll workers were being sued for failing to 
direct people to the right precinct?
    Ms. Davis. Mr. Chairman, to my knowledge, there has not 
been situations where poll workers individually were sued, but 
there may have been occasions where they were called as 
witnesses to testify in cases where a county board of elections 
was sued. And this goes to reinforce the point of why this 
change in the law is so irrational. Right now, poll workers are 
required to direct voters to the proper precinct, and if they 
are not in the proper precinct, then those votes do not count. 
HB 194 makes that discretionary, which actually increases the 
legal problems of equal protection. There is unbridled 
discretion of the poll worker to pick and choose if they want 
to help someone or not, so that raises the possibility of more 
litigation.
    But what would actually be helpful, instead of making it 
discretionary, if they want to reduce the chances of 
litigation, improve poll worker training, give those poll 
workers the tools they need to help direct voters to the right 
precinct. That would be a solution that would actually solve a 
problem rather than----
    Chairman Durbin. Mr. Fellows, let me give you the last 
word.
    Mr. Fellows. Thank you. I appreciate it. I apologize if I--
I do not think I used the word ``sued'' in there because--I 
hope I did not because that is not--they have been dragged into 
court.
    Chairman Durbin. You said it is a liability issue, they 
have been drawn into court over the years.
    Mr. Fellows. That is correct. That is exactly what I meant. 
They have been drawn into court numerous times. Hamilton County 
was the big one.
    Chairman Durbin. As witnesses?
    Mr. Fellows. Yes, correct. And then what it does is it 
makes us--we had a situation in my community, too, where they 
got--then we cannot find poll workers. No one wants to be 
dragged into court just to work for 1 day a year. So it was 
not--that was one of the issues that it just intimidates people 
from----
    Chairman Durbin. Does it happen frequently?
    Mr. Fellows. It keeps--what?
    Chairman Durbin. Did it happen frequently?
    Mr. Fellows. Not frequently, but it happened large-scale in 
Hamilton County, and that is when, again, the Association of 
Elections Officials, the bipartisan group, asked the 
legislature to do this. If we go back to 2010 to that task 
force report on numerous things about absentee voting, I think 
that that would solve a lot of the issues, because it was a 
bipartisan approach. Senator Brown is well aware of that 
organization.
    I do want to ask just real quick, mailing absentee 
applications has been resolved. It is going to be mailed 
throughout the State of Ohio this year.
    Chairman Durbin. That was a decision by your Republican 
Secretary of State?
    Mr. Fellows. Correct. And one of the issues that we have as 
elections officials is inconsistency in the process when we are 
talking about voting or having polls open on Saturdays and 
Sundays. As I mentioned, most of the counties in Ohio are very 
small. They cannot afford the staff to do that. Their staff may 
be only two. And now you have situations where you have multi-
county districts, congressional district, State Senate 
district, appeals court districts, et cetera, that cross county 
lines. So now you have one set of voters having rules and open 
polls because those counties can afford it, but you have others 
that cannot afford it. So now you have disenfranchised certain 
voters by doing that inconsistency. And that was one of the 
major issues with that.
    With the poll worker, I think we addressed the poll worker 
thing.
    And then when we go back to--I know you are very large on 
empirical data, and rightly so. There is no empirical data that 
shows between 2004 when we had the old style, where you had to 
have a reason to vote absentee, like you had to be a senior or 
out of the county, to where in 2008 you had the early voting, 
the empirical data shows that the total voter turnout was 
infinitesimal.
    Chairman Durbin. Thank you. Before I turn this over to 
Senator Brown, I have reflected on an earlier statement I would 
like to correct so I can return safely to my home State of 
Illinois. Our polls are open from 6 in the morning until 7 in 
the evening, so it is a 13-hour day. The poll workers are there 
early and stay late, so it was not 12 hours.
    [Laughter.]
    Mr. Fellows. God bless the poll workers of our country.
    Chairman Durbin. Senator Brown.
    Senator Brown. But our poll workers actually work harder 
during the 13 hours----
    [Laughter.]
    Senator Brown. Thank you.
    Mr. Fellows, the numbers between 2004 and 2008, we could 
argue this, are not quite infinitesimal. In 2004, 5.6 million 
voters voted; in 2008, 5.7. A hundred thousand is not----
    Mr. Fellows. No, no, no. I do not know which numbers you 
have, but from the Secretary of State's office, the total vote 
count was about, I want to say, a 52,000- to 57,000-vote 
difference. That is total voters. But if you just go to who 
voted for the two major political parties, the candidates, it 
would have been Senator Kerry and George W. Bush in 2004 and 
McCain and Barack Obama in 2008. The difference was less than 
17,000 votes difference out of over 5 million votes.
    Senator Brown. But the issue is how many--okay, I will not 
belabor this. The issue is how many people actually voted, but 
that is not a big concern.
    One of the things, Mr. Fellows, that you were known for, I 
remember when I was Secretary of State, and that many of your 
colleagues are is a strong view of--strong advocates for local 
control in elections. And while we have State rules, we also 
want local elections officials to be empowered to do what they 
have to do to do this job fairly and efficiently. You had 
mentioned this for a moment the first time in the hearing about 
the local boards of elections have--prior to this new law had 
the discretion whether they wanted to mail absentee ballots--
applications to anybody--to their whole county.
    Mr. Fellows. Correct.
    Senator Brown. To all eligible voters--all registered 
voters in their counties. The legislature took away that 
discretion by HB 194. I know that Secretary Husted, to his 
credit, has done the right thing and is going to open that up 
this year. Well, really he has got to follow the law of the 
fact that 194 is on the ballot to be challenged. But why do you 
want--why does this bill and do you support this bill wanting 
to take away that local control? Because no longer can you at 
the Lake County Board or Mr. Arredondo at the Lorain County 
Board decide I want to--we have the money and we think it makes 
sense for us locally to make that decision? We are not--the law 
never told them they had to do it. Some counties did it, some 
did not. Why should we take away that local----
    Mr. Fellows. Just so you know, I do not necessarily support 
everything in HB 194. What I support very adamantly is all the 
things that we as elections officials ask the legislature to 
do. We actually--our task force said to mail absentee 
applications to everybody in the State. It became a monetary 
issue, a cost issue to do it. But what we do call for, as all 
elections officials do because of my point on the multi-county 
district, is consistency. We cannot just have that--that 
autonomy would be great if the elections in all the district 
were contained into our own little counties and it did not 
affect anything else. But when we have so many districts that 
go outside of our county into neighboring counties and then we 
could not afford----
    Senator Brown. You would be including the congressional 
district that now goes from Cleveland to Toledo, for instance?
    [Laughter.]
    Mr. Fellows. Yes, that could be--or the ones that used to 
go down south all the way to the river district. But, yes, I 
mean, we--but there is more than just congressional. I mean, 
there is State Senate, there is appeals courts. It goes on and 
on, as you know. And so we as elections officials absolutely 
would love to see absentee applications go out to everybody, 
and that was our stance on it.
    Senator Brown. It was the right stance.
    Mr. Moore, do you want to comment?
    Mr. Moore. Just for clarification, Senator Brown, what we 
are asking for is for the law to be restored to the way it was 
before 194 was passed. Under that system, counties had the 
discretion to extend the early voting period to fit the needs 
of their county. So if you have a county with a lot of long 
lines, a big urban community, and there is a known demand for 
more ballots and smaller precincts, I think it is proper to 
allow those counties to make that decision, because what 
happens in Belmont County may not--the rules in Belmont County 
may not be the same ones you need to have in Cuyahoga County 
where you have a much larger population, and that is when it 
goes back to Senator Durbin's question. Minorities are 
impacted, young people are impacted, people who live in cities 
are more adversely impacted by this.
    So all we are saying is leave it to the discretion of the 
counties to fit the needs of that county, but not try to impose 
something that might work for Belmont County on Cuyahoga 
County, which draws abundant numbers. This throws us back in 
long lines, puts us back out in the rain. Let us restore the 
law back the way it was and give us the right to cast our vote 
without----
    Senator Brown. Thank you.
    Professor Tokaji, Ms. Davis mentioned the Golden Week, and 
it has been discussed from time to time during all this. Some 
saw the Golden Week as an opportunity for rampant fraud. You 
called the Golden Week once one of the best features of Ohio's 
system. Tell me why you said that, and reassure all of us in 
this room, reassure this Subcommittee, if you would, what 
systems are in place to make sure that this, for all intents 
and purposes, 5, 6 days of election day registration, that it 
is fairly done, efficiently done, and people's right to vote is 
protected, but we are protecting against fraud at the same 
time?
    Professor Tokaji. So as a matter of Ohio law, as you 
mentioned earlier, a law that passed a Republican State 
legislature and was signed by Governor Taft, we have no-excuse 
absentee voting, which means anyone is entitled to vote 
absentee, and that includes early voting.
    This is actually more secure than voting on election day 
because you have plenty of time to check whether the individual 
is, in fact, registered and eligible to vote before the ballot 
actually gets counted. It cannot as a matter of constitutional 
law get counted until election day. And the reason I said I 
think it is one of the best features of Ohio law is if we look 
at the data from around the country on the reforms that 
actually improve turnout, allowing one-stop shopping, allowing 
voters simultaneously to register and cast their ballots is the 
one reform that across jurisdictions over a long period of time 
has been shown to result in substantial increases in turnout. 
We need more eligible people voting, not fewer.
    Senator Brown. So you are arguing that--this is a very 
important point, I think, to make. You are arguing that if you 
go in on October--what are the dates of the Golden Week this 
year?
    Mr. Fellows. Early and absentee starts October 2nd this 
year.
    Senator Brown. Okay. So for those 5 days, 5, 6 days, if 
Carrie Davis goes in--you live in Franklin County.
    Ms. Davis. Yes.
    Senator Brown. If Carrie Davis goes into her Franklin 
County Board of Elections and votes during--where I assume she 
is probably already registered, but if she is not, she goes and 
registers and votes that day, one of those days, the 
protections against fraud are actually better aimed at her, if 
you will, than they are if Carrie Davis registers prior to that 
and goes to vote back in her Columbus precinct on election day.
    Professor Tokaji. That is precisely right, because you have 
plenty of time--at least 30 days before the ballot will 
actually be counted where you can actually check to make sure 
the person----
    Senator Brown. The ballot will be in an envelope with her 
name on it, and if somebody challenges it and she can be shown 
not to be a legitimate voter, they will set that ballot aside 
for challenge, but it will never be counted unless--it may not 
ever be counted because she might not have been a real voter.
    Professor Tokaji. Yes, which almost never happens. And, by 
the way, I can count on no hands the number of incidents of 
fraud associated with this 5-day period, the so-called Golden 
Week.
    Senator Brown. Okay. Thank you, Mr. Chairman.
    Chairman Durbin. I want to thank this panel. I want to 
thank Professor Tokaji, Mr. Arredondo, Ms. Davis, Mr. Fellows, 
and Mr. Moore for joining us here. I know it is a personal 
sacrifice. I am glad that we did not completely mess up your 
family vacation, Mr. Fellows. Thank you very much for being 
here, all of you, as part of this hearing.
    This is not the last of these hearings. Unfortunately, we 
have a lot of other States facing the same basic question. I 
will continue to ask the same question of each panel: What is 
the incidence and experience of voter fraud that gave rise to 
the change in State law? We now have the answer in Ohio and the 
answer in Florida, and the answer is there is no evidence of 
fraud that gave rise to this change in the law. But we do know 
what the law will do. It will reduce the likelihood of voting 
for some Americans. It will make it inconvenient and a hardship 
when, in fact, we should make it as easy as legally possible 
for every American to vote. We are a stronger democracy when 
more people participate in this democracy. And we owe it to 
those who fought for these rights over the years and to the men 
and women in uniform today who still fight for those values 
that we should never, ever take for granted.
    And for those who say, ``Well, it will not affect me; I get 
off on election day, and it is no big problem,'' it does affect 
you because it affects this country that we live in, the values 
of the country that we live in, and the very basic concept of 
whether or not the right to vote for every American is worth 
fighting for, whether it is on a battlefield or in a hearing 
before a legislative committee.
    So I thank you for being here and being part of the record 
that we have made today. You are not alone in your interest in 
this issue. We have statements from dozens of organizations, 
including the former Ohio Secretary of State Jennifer Brunner, 
Northeast Ohio Voter Advocates, Ohio Women with Disabilities 
Network, Project Vote, ACLU of Ohio, Advancement Project, AFL-
CIO of Ohio, Mayor Earl Leiken of Shaker Heights, the National 
Action Network, Northeast Ohio Coalition for the Homeless, Ohio 
Education Association, Pipefitters Union, Rabbis Richard Block 
and Robert Nosanchuk, Reverend Stanley Miller, State 
Representative Michael Stinziano, Stuart Garson of the Cuyahoga 
County Democrats, the Lawyers' Committee for Civil Rights, the 
Leadership Conference on Civil and Human Rights, the Citizens 
Alliance for Secure Elections, and the Harvard Community 
Centers, and without objection, their statements will be 
entered into the record, and I thank them.
    [The information appears as submissions for the record.]
    Chairman Durbin. For the witnesses who are here today, 
there is a possibility that you will be sent written questions 
by way of followup, and I hope that you can respond on a timely 
basis.
    I want to thank Senator Brown for inviting me here today, 
inviting the Committee, and if there are no further comments 
from our panel or colleagues, I thank our witnesses and 
everyone in attendance for their interest in this important 
issue.
    This hearing stands adjourned.
    [Whereupon, at 11:15 a.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record
              
              
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          Prepared Statement of Representative Marcia L. Fudge

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                Prepared Statement of David G. Arredondo

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                 Prepared Statement of Carrie L. Davis


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                   Prepared Statement of Dale Fellows

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                 Prepared Statement of Gregory T. Moore


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              Prepared Statement of Prof. Daniel P. Tokaji

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               Prepared Statement of Chairman Dick Durbin

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              Prepared Statement of Senator Sherrod Brown


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         Questions submitted to Dale Fellows by Chairman Durbin

    [Note: At the time of printing, the Committee had not received 
                     responses from Dale Fellows.]


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                Miscellaneous Submissions for the Record


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