[Senate Hearing 112-160]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 112-160



                               before the

                     CIVIL RIGHTS AND HUMAN RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION


                           SEPTEMBER 8, 2011


                          Serial No. J-112-39


         Printed for the use of the Committee on the Judiciary

71-326                    WASHINGTON : 2011
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                       COMMITTEE ON THE JUDICIARY

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


                   RICHARD DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont            LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island     JON KYL, Arizona
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
       Joseph Zogby, Democratic Chief Counsel and Staff Director
                  Walt Kuhn, Republican Chief Counsel

                            C O N T E N T S




Cornyn, Hon. John, a U.S. Senator from the State of Texas........     4
    prepared statement...........................................   137
Durbin, Hon. Richard, a U.S. Senator from the State of Maryland..     1
    prepared statement...........................................   143
Graham, Hon. Lindsey, a U.S. Senator from the State of South 
  Carolina.......................................................     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   204


Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio.......     7
Browne Dianis, Judith A., Co-Director, Advancement Project, 
  Washington, DC.................................................    17
Cleaver, Hon. Emanuel, a Representative in Congress from the 
  State of Missouri, and Chairman Congressional Black Caucus.....    12
Gonzalez, Hon. Charles, a Representative in Congress from the 
  State of Texas, and Chairman Congressional Hispanic Caucus.....    10
Levitt, Justin, Associate Professor of Law, Loyola Law School, 
  Los Angeles, California........................................    21
Nelson, Hon. Bill, a U.S. Senator from the State of Florida......     5
Rokita, Hon. Todd, a Representative in Congress from the State of 
  Indiana........................................................    14
von Spakovsky, Hans A., The Heritage Foundation, Washington, DC..    19

                       SUBMISSIONS FOR THE RECORD

AARP, Washington, DC, statement..................................    35
American Civil Liberties Union (ACLU), Laura W. Murphy, Director, 
  and Deborah J. Bagins, Senior Legislative Counsel, Washington, 
  DC, joint statement............................................    41
AFL-CIO, Washington, DC, statement...............................    56
Angela Peoples and Tobin Van Ostern, Campus Progress, Center for 
  American Progress Action Fund, Washington, DC, statement.......    62
Baker, Rob ``Biko'', Executive Director, League of Young Voters, 
  Brooklyn, New York, statement..................................    68
Brennan Center for Justice, New York University, School of Law, 
  New York, New York, statement and attachment...................    70
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio.......    98
Browne Dianis, Judith A., Co-Director, Advancement Project, 
  Washington, DC.................................................   102
Campbell, Melanie, President & CEO, National Coalition on Black 
  Civic Participation Convener, Black Women's Roundtable, 
  Washington, DC, statement......................................   122
Cleaver, Hon. Emanuel, a Representative in Congress from the 
  State of Missouri, and Chairman Congressional Black Caucus, 
  statement......................................................   125
Coggs, Milele A., 6th District Alderwoman, Milwaukee, Wisconsin, 
  statement......................................................   130
Constitutional Accountability Center, David H. Gans, Director of 
  the Human Rights, Civil Rights Citizenship Program, Douglas 
  Kendall, Founder and President, Constitutional Accountability 
  Center, Washington, DC, statement..............................   133
Demos, New York, New York, statement.............................   138
Fair Elections Legal Network (FELN), Washington, DC, statement...   146
Gonzalez, Hon. Charles, a Representative in Congress from the 
  State of Texas, and Chairman Congressional Hispanic Caucus, 
  statement......................................................   153
Harris, Nikiya Q., Milwaukee County, Milwaukee, Wisconsin, 
  statement......................................................   165
Haygood, Ryan P., Director, Political Participation Group, NAACP 
  Legal Defense & Educational Fund, Inc., statement..............   167
Ingram, Janaye, DC Bureau Chief, National Action Network, 
  Washington, DC, statement......................................   180
Lawyers' Committee for Civil Rights Under Law, Washington, DC, 
  statement......................................................   182
Leadership Conference on Civil and Human Rights, Wade Henderson, 
  President & CEO, Washington, DC, statement.....................   198
Levitt, Justin, Associate Professor of Law, Loyola Law School, 
  Los Angeles, California, statement.............................   206
Lewis, John, a Representative in Congress from the State of 
  Georgia, statement.............................................   234
National Coalition for the Homeless, Neil Donovan, Executive 
  Director, Washington, DC, statement............................   237
National Law Center on Homelessness & Poverty, Washington, DC, 
  statement......................................................   240
New York Times, August 26, 2011, article.........................   245
Project Vote, Washington, DC, statement..........................   247
Republican National Lawyers Association, Washington, DC, 
  statement......................................................   256
Rock the Vote, Heather Smith, President, Washington, DC, 
  statement......................................................   257
Rokita, Hon. Todd, a Representative in Congress from the State of 
  Indiana........................................................   264
Sanchez, Victor George Jr., President, United States Student 
  Association, Washington, DC, statement.........................   268
Sentencing Project, Research and Advocacy for Reform, Washington, 
  DC, September 8, 2011, letter..................................   273
South Carolina Progressive Network, Brett Bursey, Executive 
  Director, Columbia, South Carolina, statement..................   275
von Spakovsky, Hans A., The Heritage Foundation, Washington, DC, 
  statement......................................................   280
Tokaji, Daniel P., Professor of Law, Ohio State University's 
  Moritz College of Law, Columbus, Ohio, statement...............   290



                      THURSDAY, SEPTEMBER 8, 2011

                              United States Senate,
                          Subcommittee on the Constitution,
                            Civil Rights, and Human Rights,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:01 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chairman of the Subcommittee, presiding.
    Present: Senators Durbin, Franken, Coons, Graham, and 

                     THE STATE OF ILLINOIS

    Chairman Durbin. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Human Rights will come to 
order. Today's hearing will examine whether a number of new 
State voting laws imperil the right to vote.
    This year we have watched young people in places like Egypt 
and Tunisia take to the streets to fight for what we in America 
often take for granted: the right to elect our leaders. In our 
country, regardless of how big the disagreement, how intense 
the debate, we settle our political differences at the ballot 
box. We have enshrined the right to vote as one of the major 
rights that every American citizen has. But over the course of 
history, we know that that right has often been honored in the 
    Only in the last century did Americans win the right to 
directly elect their United States Senators. And for more than 
half of the life of our Republic, a majority of the adult 
population--the women of America--were not allowed to vote. 
Even after the franchise was legally expanded for close to a 
century, a well-organized, violent, often racist campaign 
successfully prevented many African-Americans from exercising 
their right to vote. Fortunately, our country over time 
corrected and learned from these mistakes.
    In fact, our Constitution has been amended more to expand 
and protect the right to vote than for any other issue. Six 
constitutional amendments--the 15th, 17th, 19th, 23rd, 24th, 
and 26th--ratified over the course of 100 years, underscore our 
Nation's commitment to ensure that all adult citizens enjoy 
free and full access to the ballot. Courageous Americans fought 
for these constitutional amendments in order to guarantee the 
right to vote for all citizens, regardless of their race, sex, 
class, income, or State of residency. We must be constantly 
vigilant against threats to those hard-fought victories.
    That is why earlier this year I held a hearing on what I 
consider a threat to our democracy posed by the Supreme Court's 
Citizens United decision and the flood of special interest cash 
into elections and the need to fundamentally reform the way we 
finance our campaigns.
    Today we are going to examine another potential threat to 
our democracy: recently passed State voting laws designed to 
restrict voting. I am deeply concerned by this coordinated, 
well-funded effort to pass laws that would have the impact of 
suppressing votes in States like Wisconsin, Texas, Florida, 
Indiana, Georgia, Alabama, Tennessee, and South Carolina.
    Regardless of the stated intention or goals, many analysts 
believe these laws will cause widespread voter suppression and 
disenfranchisement by making it more difficult for millions of 
disabled, young, minority, rural, elderly, homeless, and low-
income Americans to vote. Let us take a moment to consider some 
of the new restrictions on voting we will discuss today.
    Since the beginning of this year, seven States have passed 
laws requiring certain forms of photo identification prior to 
voting. At first blush, it might appear that ID requirements 
are reasonable. After all, who cannot produce an ID? Well, 
there is an old saying that applies here: The devil is in the 
    The way these laws are written, not just any ID will do. 
According to numerous studies, millions of Americans who are 
currently eligible to vote do not have an ID that would satisfy 
these new restrictive laws, and these individuals are 
disproportionately young, low-income, senior citizens, African 
Americans, and Latinos. It is unclear what, if any, efforts are 
being made to make sure that those who do not have the required 
IDs will be able to obtain them before the next election.
    Some States have also passed laws drastically reducing the 
early voting period. Early voting is primarily used by our 
fellow citizens who cannot get to the polls on election day for 
a variety of reasons. They may not have reliable 
transportation. They may work at a job that does not allow them 
to take time off. They may have trouble finding child care. If 
they are disabled or elderly, they may not be able to count on 
receiving the assistance they need to get to the polls on 
election day.
    For these reasons and many others, the number of people 
voting early has increased with each election. In 2008, for 
example, 30 percent of all votes were cast before election day, 
which causes one to ask: Why are some States reducing the early 
voting period when the number of early voters is clearly on the 
    Finally, there are two States--Florida, Senator Bill 
Nelson's State; and Texas--that have enacted laws that threaten 
to end voter registration drives by nonpartisan groups. The 
Florida law places onerous administrative burdens on volunteers 
who sign up to help their neighbors register to vote. If a 
volunteer fails to meet a series of administrative 
requirements, they could be prosecuted and fined. This law is 
so bad that for the first time ever the League of Women Voters, 
a highly respected, nonpartisan organization, indefinitely 
suspended all voter registration drives in Florida.
    These are just three examples of laws that could seriously 
impede voting rights in America. The proponents of these new 
restrictive State laws argue that they are all about reducing 
fraud. Yet, as Professor Levitt, a witness on our second panel, 
has demonstrated, the incidence of voter fraud in America is 
minimal, and the reported fraud is often anecdotal, 
unsubstantiated, and contrived.
    I am particularly concerned that the States where these 
laws were passed have not taken adequate measures to ensure 
that affected individuals will, in fact, have the ability to 
vote. That is why today I am sending a letter to the Governors 
in three of these States--Florida, Wisconsin, and Tennessee--
asking them to inform the Subcommittee of their plans for 
ensuring that the laws they have enacted will not 
disenfranchise the citizens of their State.
    Protecting the right of every citizen to vote and ensuring 
our elections are fair and transparent are not Democratic or 
Republican values. They are American values.
    Now I want to recognize the Ranking Member of the 
Subcommittee, Senator Graham, for his opening statement.

                       OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman. Obviously, I have 
a different view on this. My State just passed a voter ID law, 
and I want to congratulate the legislature in South Carolina. 
In the future, if the Justice Department approves this program, 
you will have to have a driver's license or a DMV ID card. And 
what we have done in South Carolina is if you do not have a 
driver's license, you can go to a Department of Transportation 
facility and get an ID card that will allow you to vote and do 
anything else you need an ID for, and we will give you a ride 
there. A passport, a military ID, we are going to come up with 
a voter registration card, which I think is a really good idea, 
that is going to have a photo on it.
    You know, illegal immigration is something that bedevils 
the country, and the reason most people come here is to find 
work in America that they cannot find in their native country 
because of corruption and lack of employment. So I understand 
why people come. But from an employer's point of view, it is 
hard to verify employment. So I, along with Senator Schumer, 
have suggested that we take our Social Security cards and make 
them biometric, a photo, something that is tamper-proof so that 
when you get a job the employer will know you are who you say 
you are. When you get on an airplane, you have to have some 
form of ID because we want to make sure that you are who you 
say you are because of the threats we face. And when it comes 
to voting, I do not think it is too much of a stretch to say 
you have to prove that you are who you say you are, and we will 
find accommodating ways to get there.
    But I just have a different view. I think what South 
Carolina did makes eminent sense to me, and the law of the law, 
as I understand it, is the Indiana system has been upheld, and 
you will see more of this, Mr. Chairman, not less. Thirty 
States have some form of voter ID requirement. So I think this 
is the future of the country, something we should embrace at 
the Federal level, because elections do matter.
    Casting a vote should be as easy as possible. It should 
require some participation. And I would end with this thought: 
Democracy is a fragile thing. We all have to work to make sure 
it survives. If you want to control illegal immigration, are 
you willing to do your part? Would you be willing to take your 
Social Security card, which can be duplicated by midnight as a 
piece of paper, and turn it into a bioimetric document to help 
the country secure employment? Are you willing to show your ID 
card to get on a plane just because we are threatened by people 
in the world and we need to know who they are? And all the 
hijackers had five or six fake driver's licenses. So I think 
sanctifying the voting process in a way that makes sense to 
make sure that we are electing people based on registered 
voters is a goal that we should all be concerned about and want 
to achieve. And from a South Carolina perspective, I have no 
desire to suppress people from voting. I want as many people as 
possible to vote and all of them to vote for me. And I know 
that is not realistic. And if you do not vote for me, that is 
okay. I want you to be able to vote, but I want to make sure 
that we do it in a way that preserves the integrity of 
elections, not just mine but everyone else's.
    Thank you for the opportunity to speak.
    Senator Cornyn. Mr. Chairman, may I be recognized for a 
brief unanimous consent request?
    Chairman Durbin. Sure, the Senator from Texas.
    Senator Cornyn. And a brief statement.
    Chairman Durbin. Of course.


    Senator Cornyn. I appreciate the Chairman's consideration.
    Due to a conflict, I am not going to be able to stay for 
the hearing, but I do have a statement that I would ask 
unanimous consent be made part of the record. It speaks really 
to the voter ID issue that has already been previously 
discussed, but also I am glad to see Mr. von Spakovsky here who 
I think is going to talk about the bipartisan legislation that 
we enacted last year. Senator Schumer and I were among the 
principal cosponsors, enhancing the rights of military voters 
to vote absentee, which resulted in some significant changes 
across State laws to facilitate, but which we still have some 
challenges to meet.
    So with that, Mr. Chairman, thank you for allowing me that 
brief statement.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Senator Cornyn.
    Our first panel consists of colleagues from the Senate, and 
I see our colleague from the House, Congressman Gonzalez, who 
is welcome to join us at the table here as well. We will get 
the proper nameplate up for you in just a moment.
    Our first witness is Senator Bill Nelson of Florida, 
currently serving his second term. He served as Florida's State 
treasurer, insurance commissioner, and fire marshall; six terms 
in the U.S. House; three terms in the Florida State 
    Senator Nelson, the floor is yours.

                        STATE OF FLORIDA

    Senator Nelson. Thank you, Mr. Chairman and Senator Graham. 
The ID problem in my State of Florida is not a problem. We have 
a different problem, and it is simply not right when the laws 
are changed in a State to make it harder to vote. And that is 
what has happened in Florida. And of all places, you will 
recall the experience that we went through in 2000 when there 
were votes that were cast in error because of the construction 
of the ballot, when there were votes that were lost, when a lot 
of the military votes were either counted or not counted that 
did not comply with the law, and there had been substantial 
changes there.
    It was a painful experience, and because of that the State 
legislature set about on a series of reforms. They made it 
easier to vote, they made it easier to register to vote, and 
they made it easier that someone would have the confidence that 
their vote was going to be counted as they intended. That has 
suddenly been reversed in the State of Florida by the election 
law that has been passed and signed into law by the Governor.
    In the first place, Mr. Chairman, what you mentioned, the 
League of Women Voters, which has been registering people as a 
civic project for decades, under law in Florida that had been 
on the books for decades, to register a voter you want to get 
those names turned in to the supervisor of elections in that 
county on a timely basis. They had 10 days. That has been on 
the books for years. It has now been constricted to 48 hours 
with the person obtaining the signatures and turning them in 
subject to a fine of up to $1,000 if it is not turned in within 
48 hours.
    Now, what is that intended to do? It ends up doing exactly 
what the League of Women Voters has done, and they have said 
they are not going to take the chance that their members are 
going to have those kinds of fines. And, therefore, an 
organization which was constantly over the years trying to get 
people to participate in our democracy by registering voters is 
not going to.
    All right. Let me give you another example. Mr. Chairman, 
you talked about early voting. On the basis of the experience, 
the awful experience that we had in the Presidential election 
of 2000, it was in a State particularly that has a lot of 
senior citizens, want to make it easier to vote. By the way, 
early voting, the supervisors of election love it because 
everybody does not pile in on 1 day, but they can spread that 
out. And we have had early voting for 2 weeks. But what did the 
legislature do? They constricted that back to 8 days, and they 
put the fiction that, oh, the same number of hours of early 
voting are going to be as the previous law because at the 
option of the supervisor of election that they can extend from 
6 hours a day, they can go all the way up to 12 hours a day. 
But you know what? If they do, supervisors of election have to 
pay overtime pay, and what do you think has happened to the 
budgets of those statewide institutions, in this case each 
supervisor in each of Florida's 67 counties? They are not going 
to be able to afford it. And, therefore, the constriction of 
early voting has occurred.
    And, oh, another interesting thing happened, Mr. Chairman. 
The early voting used to go up through the Sunday before the 
Tuesday election. That has been changed. It now will only go up 
through the Saturday before the Tuesday election. Does it cause 
anyone to suspicion that there is a certain number of voters on 
Sunday after church that go to vote? Again, cutting back on the 
people's opportunity to express their will through a free and 
fair ballot access process.
    ``Ther is a provision in the new law that says if a voter 
moves from outside of the county or from outside of the state 
and they have not changed their voter registration address and 
they go to their new polloing location to vote, they must vote 
a provisional ballot. For 42 years, we allowed them to change 
their address at their polling location and then they could 
vote a regular ballot.''
    And, oh, by the way, what is the experience of provisional 
ballots? I would merely take you to the last Presidential 
election. The 2008 Presidential election in Florida, one-half 
of the provisional ballots when attempted to be counted were 
    Mr. Chairman, we ought to be encouraging people to vote and 
making it easier for them to register to vote, to have their 
vote counted as they are intended and to be able to vote.
    This matter is hopefully going to be under judicial review. 
Organizations such as the League of Women Voters, I am told, 
intend to file suit in court. There are also some Federal suits 
that are already in the courts. It is yet to be determined what 
the Department of Justice is going to do. Under the Voting 
Rights Act of 1965, there are still five counties on the watch 
list out of Florida's 67 that have to have pre-clearance with 
regard to the voting rights of those people being upheld. The 
Justice Department has already cleared those five counties with 
regard to non-controversial items. The question is: Will they 
examine it since the State of Florida did not appeal to the 
Justice Department on these controversial items of having your 
vote counted?
    Mr. Chairman, I certainly hope you will pick up this 
banner. And, Senator Graham, you and I want the same thing at 
the end of the day. We want more people to vote, and we want 
them to be able to have that vote counted like they intended.
    Thank you, Mr. Chairman.
    Chairman Durbin. Thanks, Senator Nelson. We appreciate your 
being here.
    Congressman Cleaver, come on up and join us here. We will 
pull up a chair to the table. We are honored that you would 
come across the Rotunda and join us.
    I would like to next introduce Senator Sherrod Brown, who 
has been a Member of the Senate since January of 2007, served 
seven terms in the House before, also two terms as Ohio 
Secretary of State, which is the chief election officer of the 
State; four terms in the Ohio General Assembly; and he taught 
at Ohio public schools and at The Ohio State University.
    Senator Brown. The Ohio State University.
    Chairman Durbin. Senator Brown.
    Senator Brown. I do not know why they say that, but they 
do, Mr. Chairman.

                            OF OHIO

    Senator Brown. Thank you very much. It is a pleasure to be 
here. Ranking Member Senator Graham, Senator Franken, thank you 
also for joining us. I am pleased to sit with two of my former 
colleagues in the House, Charlie Gonzalez and Emanuel Cleaver, 
both leaders in many ways, and especially on voting issues, and 
I appreciate the work that they do.
    I testify, as Chairman Durbin said, not only as a Senator 
of a State often at the center of our National elections; I 
testify as an 8-year, 2-term former Secretary of State of Ohio 
charged with administering those elections from 1983 to 1990.
    I can remember in my re-election in 1990, my then-6- year-
old daughter, the election I actually lost running against a 
fellow by the name of Bob Taft, and my daughter, who was 6, 1 
day we are getting out of the car, and she said, ``Dad, let me 
make sure I understand now. You count the votes in this 
election.'' I said, ``Yeah.'' And she said, ``Well, what is the 
problem? ''
    Senator Brown. It did not work out quite so well. She has 
become a bit more cynical since then, Mr. Chairman.
    So I understand the burdens of the costs and resources in 
ensuring the fundamental right to vote is exercised. 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's legislators 
undertook a bipartisan--and I would underline bipartisan--
effort to help Ohioans vote more easily. When I was Secretary 
of State, we had major assistance and input from Republicans as 
we made voting laws work for huge numbers of people. As 
Secretary of State, I asked, and people cooperating, utility 
companies cooperated by including voter registration forms in 
utility bills. Driver's license bureaus registered people to 
vote. Various social service agencies, various local 
businesses, and one company housed in the Chairman's State, 
McDonald's Corporation, at our request printed 1 million tray 
liners that were put in McDonald's restaurants all over my 
State that people could register to vote on their tray liner so 
that occasionally someone turned in registration forms with 
ketchup and mustard stains, but accepted by--and still I assume 
some of them are still in boards of elections around the State.
    That was bipartisan in those days, but rather than 
protecting the right to vote, we are seeing brazen attempts 
around the country to undermine it. Today there is a 
concentrated campaign sweeping the Nation in far too many State 
legislatures across the country--Texas, Florida, and Ohio are 
three of the most notable--undercutting the very protections 
that I believe are enshrined in our Constitution and the Voting 
Rights Act of 1965.
    These new State voting laws are a result of an organized 
effort to limit voting rights. It does so in three primary 
ways: it implements strict voter ID laws; it requires showing 
limited forms of voter ID before voting. The Ohio Legislature--
I will get to a specific in Ohio in a moment--has decided to 
sort of bifurcate their efforts. One of their proposals, which 
has not yet become law but might this month, does not allow 
State university IDs to count, for instance, so it is 
restrictive in many ways that I think do not make much sense.
    Second, it significantly reduces early voting or the 
availability of absentee ballots, as Senator Nelson pointed out 
in Florida, and it limits voter registration efforts.
    This hearing will examine several of these laws and what I 
think is an ideological campaign underpinning them. I will 
focus on Ohio for a moment.
    During the 2004 Presidential election, Ohio saw in some 
sense a bit of a rerun of Florida 2000: a dysfunctional 
election marred by electronic voting machines improperly 
tallying votes and Ohioans waiting in line for as long as 
hours. I was at Oberlin College then in my Congressional 
district where young voters waited for 6 hours to vote. Kenyon 
College, just an hour south nor far from where I grew up, 
voters waited 9 hours to vote. This was not a question of voter 
fraud, of individuals trying to game the system. This was a 
question of an individual voting multiple times. 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 problems are 
elsewhere but not by the voters. The clouds over the 2004 
election in Ohio were all caused by process, not by individual 
    Now, 7 years later, after we were a national model, what 
the Republican and Democratic members of the legislature did 
and what I tried to do administratively as Secretary of State, 
partnering with all kinds of people and businesses, that 
national model is--Ohio is poised to return to the headlines 
again for the wrong reasons. The new election law, which was 
signed into law by Governor Kasich--it may be subject to a 
ballot challenge, so it may not take effect yet--does little to 
fix the problems of the process. It only exacerbates it. Among 
the most pernicious elements, again, this is a repeal of 
legislation that mostly a Republican legislature and a 
Republican Governor enacted in the decade before since I was 
there, but in the early part of the 21st century. So there was 
consensus--and that is what is disturbing. There was consensus 
in America about voting rights, and there was consensus in Ohio 
about what works best, changes at the margin, but now there is 
a direct attack undermining so much of what I thought we all 
believed in in this country.
    This new law in Ohio shortened significantly the early 
voting window. It eliminates, as it does in Florida--you can 
see this pattern--early voting on the Saturday, Sunday, and 
Monday prior to the election, the three busiest days of early 
voting. I know that limiting--as Senator Nelson said, limiting 
early voting will only cost more money. The election system, 
the administrators in Ohio, very bipartisan, equal number of 
Republicans and Democrats, that is our State law, working in 
boards of elections, they like it this way because it spreads 
out the sort of bursting chaos of an election, and it saves 
money ultimately for the election system.
    Parents with children in tow, shift workers heading to 
work, busy professionals who have trouble--you know, it is not 
so hard for us, but, you know, a single parent taking a child, 
has got a kid in tow and has got to get home and fix dinner, 
they have to stand in line on election day for 2 or 3 hours. 
Some of them go home. Of course they do, because the most 
important thing in their life is their kid and feeding their 
kid and getting ready for school and doing all the things that 
people do in their regular lives.
    Ohio's new law also prevents counties from mailing absentee 
ballots to eligible voters. There was an agreement, which I am 
heartened by, between the Democratic county executive in 
Cuyahoga, our State's largest county, and the Republican 
Secretary of State, who has, frankly, been much more reasonable 
about all these reforms than some of his colleagues, former 
colleagues when he was Speaker of the House in the legislature. 
They have worked out some arrangements and some agreements 
there that will make this a little bit better.
    The absurdity of this bill, Mr. Chairman, in part is that 
it prevents poll workers by law from even assisting some voters 
when they are asking questions when they come in. I mean, how 
absurd is that? Any fraud is too much, but proposed voter ID 
solutions are worse than the cure. In Indiana, more nuns were 
banned from voting because as elderly residents of their 
convent they did not have photo IDs than there are cases of 
documented voter fraud in the State. Yet the conservative 
Roberts Court watered down voting rights in Crawford v. Marion 
County Board of Elections even with the unproven basis of voter 
    Though most Americans have Government-issued photo IDs, as 
Senator Graham suggested, studies as recently as May of this 
year show that as many as 11 percent of eligible voters 
nationwide do not. If they cannot find a birth certificate, can 
they get a Government-issued ID in Ohio? Not clear. Who pays 
the $10 for the voter ID? Why do we put this burden on people 
that have voted religiously and regularly year after year after 
year? And do many of them just give up? Perhaps some in the 
legislature hope they do, but it is not good for our country.
    If this law were to pass in my home State, nearly 890,000 
Ohioans over age 18--890,000 Ohioans over 18--who lack driver's 
licenses could be disenfranchised. This includes especially the 
elderly, especially people in rural communities, and a number 
of Ohioans on college campuses.
    Proponents assert that voter fraud is prevalent and needs 
to be addressed by sweeping elections reforms. In 2002 and 2004 
Ohio elections, there were only four instances of ineligible 
individuals voting or attempting to vote out of 9 million 
voters in those two elections. That is 0.00004 percent of 
voters. The nationally renowned bipartisan Brennan Center said 
the numbers are so staggeringly small that an individual has a 
better chance of being killed by lightning than the chance of 
an individual impersonating another at the polls. That sort of 
says it all.
    Mr. Chairman, I will conclude with just saying this was 
consensus in our country until a group of radical proposals 
came in my legislature and other legislatures across the 
country. In a nutshell, this is a solution in search of a 
problem. It is not something we need to do. The voting system 
has worked in this country, and it has gotten increasingly 
better from the days of the 1957 Civil Rights Act to the 1964 
Civil Rights Act to the 1965 Voting Rights Act. We know that we 
have made progress in this country. Why should we go back? It 
really is a solution in search of a problem.
    Thank you, Mr. Chairman.
    Chairman Durbin. Thank you very much, Senator Brown.
    Congressman Rokita, thank you for joining us, and we are 
going to find a seat for you at the table here as quickly as 
our staff can slide a chair over--in fact, Senator Brown's 
chair, all warmed up.
    Next up is Congressman Charles Gonzalez, serving your 
seventh term representing the 20th Congressional District of 
Texas and Chairman of the Congressional Hispanic Caucus. Prior 
to service in Congress, Representative Gonzalez was a Texas 
State court judge for more than a decade and a lawyer in 
private practice for 10 years.
    Thanks for coming across the Rotunda joining us today.
    Congressman Gonzalez.


    Representative Gonzalez. Thank you, Chairman Durbin, 
Ranking Member Graham, and, of course, Senator Franken as a 
member of the Subcommittee. Thank you very much for this 
opportunity to testify about a very troubling trend that is 
occurring in many of our States.
    We have seen a consolidated effort by States across the 
country to enact laws which will deny thousands if not millions 
of Americans of the constitutionally protected right to vote. 
While I will be speaking chiefly about the impact of Texas's 
new law, the same effects will be seen in many other States 
since these laws have been linked to the model bill of a single 
partisan group seeking political advantage at any cost.
    Texas holds biannual legislative sessions, which means few 
surprises. Yet Governor Perry declared voter ID a legislative 
emergency, calling it necessary to combat rampant voter fraud.
    Now, that is a common claim, but it is made without a shred 
of evidence. We have all heard stories of dead people voting, 
but when they are investigated, we find them alive and, well, 
quite a bit surprised. I would refer you to some cases, but I 
cannot because even the Texas Attorney General in 2006 in his 
press released, which was entitled ``Let's stamp out vote fraud 
in Texas,'' could not name a single case of fraud that would 
have been stopped by voter ID.
    The law stops no actual problem. It just creates a burden 
that State and local governments will struggle to meet in spite 
of millions of Federal dollars in EAC grants, the very 
commission that is attempting to be eliminated on the House 
    Now, those localities and States are going to need it. The 
list of acceptable forms of ID is so short that not even an ID 
from the Veterans Administration will be accepted in the State 
of Texas. Your Senate ID won't count. My House of 
Representatives voting card with my identification and my 
picture will not count. The most common ID is a driver's 
license, but 30 to 40 percent of Texas voters do not have one.
    So DPS, the Department of Public Safety, will have to 
handle hundreds of thousands of applications in just 35 days as 
this law takes effect, and we have a March 6th primary, 
including weekends and holidays when the offices will be, 
presumably, closed.
    The State legislature provided zero dollars to handle the 
influx. They have no plans for special lines, extra staffing, 
or extended hours. Tens of thousands of Texans live more than 
100 miles from the nearest Department of Motor Vehicles, 
because in Texas 100 miles is not that far. But if you are 
elderly and have a hard time getting around, or if you are a 
minority and cannot take time off from work, it is a problem. 
And the wait at one San Antonio Department of Motor Vehicle 
office was nearly 90 minutes. This will not be a smooth 
    The Department of Motor Vehicles will mail the applications 
to the Department of Public Safety headquarters in Austin, 
Texas. The current turnaround time is 2 weeks. But no one knows 
how the flood of new applications will slow the process.
    Voters who cannot get their ID in time or forget to bring 
it to the polls will have to vote provisionally at an average 
of 22 minutes per vote. I have already met with my election 
officials. That is how long it is going to take. So what does 
that mean? More poll workers, longer lines, and in 
neighborhoods like in the west side of San Antonio where voting 
can already take hours, this will only further discourage 
participation. I do not even want to tell you about the cure 
time. Once you vote provisionally, you have got 6 days after 
the election to go to the main headquarters downtown, pay $6 to 
$10 parking if you have a car and you can get there. You did 
not have a driver's license, so there is a good chance that you 
do not have a car.
    Representative Gonzalez. Members of Congress can take 
work--right? We can take time off from work to get an ID or 
even go to vote. But few working people have such flexibility. 
Once again, those already bearing the hardest and harshest 
burdens will be asked to take on the most.
    Of even more concern is the fact that these laws are not 
always enforced evenly, and that is an experience not just in 
Texas. My written testimony includes a few horror stories about 
how poor and minority voters already face more challenges at 
the polls than wealthy and White voters. We must each drawn our 
own conclusions about who benefits when poor and minority 
voters are disenfranchised.
    Since the founding of our country, constitutional 
amendments and laws have opened the voting process to 
minorities, women, and young citizens that we send into combat. 
In recent years, early voting and no-excuse absentee ballots 
have increased turnout and civic engagement. Yet Texas and 
other States are reversing this trend and curtailing the 
availability of both, driving hundreds of thousands of voters 
from the polls and creating a more disengaged citizenry.
    You have heard this often from our Republican colleagues: 
``When we tax something, we get less of it.'' So it will be no 
surprise if these de facto taxes on voters' time and money 
drive down turnout.
    Voter ID laws do not stop fraud. They just suppress voting. 
The recently enacted Texas photo ID law is a prime example. In 
the more serious examples of electoral fraud, it is not the 
voter who is at fault or perpetrating the fraud, but political 
operatives or corrupt Government officials; and voter ID laws 
will not stop them. But voter ID laws do have a disparate 
impact on the poor, the young, the elderly, and the disabled, 
and these groups are disproportionately minorities. And however 
much progress we have made, disparate treatment and 
discrimination against minorities remains a serious problem.
    We have made great progress in the past 235 years tearing 
down barriers that disenfranchise millions of Americans. We 
must not return to those dark days of the past.
    Thank you again.
    Chairman Durbin. Thank you very much, Congressman Gonzalez.
    Congressman Emanuel Cleaver, from Kansas City, Missouri, is 
now serving his fourth term representing Missouri's 5th 
Congressional District. He is Chairman of the Congressional 
Black Caucus and previously served as a mayor and member of the 
City Council of Kansas City.
    Congressman Cleaver, please proceed with your testimony.


    Representative Cleaver. Thank you, Chairman Durbin and 
Ranking Member Graham. I appreciate the opportunity to appear 
before you today on one of the most significant civil rights 
issues of this moment.
    I am pleased to be the Chair of the Congressional Black 
Caucus during the 112th Congress and during the 40th 
anniversary of the CBC. On behalf of our membership, I can say 
that the issues surrounding voter suppression are particularly 
troubling to us. Many of us come from families who fought 
diligently to earn the right to vote, so it is a moral 
imperative for the members of the CBC to fight to protect the 
right to vote for all Americans.
    The Congressional Black Caucus was founded by and is often 
referred to as ``the conscience of the Congress.'' Today I am 
before you to express my steadfast commitment to protect the 
gains we have made throughout history. I am also here to 
express the deep and abiding concern the CBC has with this 
year's onslaught of voter suppression laws, which have not 
ironically arrived in time for the 2012 elections.
    It is also not ironic that early voting days have been cut 
short, stiffer identification requirements have been 
implemented, and proof of citizenship required--all 
statistically proven to impact people of color 
    I regret that as the Martin Luther King, Jr., Memorial was 
recently unveiled in our Nation's capital, I am here today to 
put you on notice that we are still fighting the battle to 
protect the right to vote--one of the causes Dr. King died for 
and reminiscent of the 1960s.
    Additionally, we can appreciate the significance every time 
we see our colleague John Lewis. As you all know, Congressman 
Lewis is not only a proud member of the Congressional Black 
Caucus, he is also a civil rights icon amongst us. My good 
friend Congressman Lewis nearly gave his life to protect our 
rights. He was a leader with the Southern Christian Leadership 
Conference President Martin Luther King in a peaceful march 
across the Edmund Pettus Bridge in Mississippi so that--in 
Alabama so that you and I could cast our votes. In fact, that 
bloody Sunday helped hasten the passage of the Voting Rights 
Act of 1965.
    Mr. Chairman, John Lewis could not be here. He is in 
Georgia on a family emergency, and I would like to introduce 
Congressman Lewis' op-ed in the New York Times, August 26th, as 
part of the record, as well as a brief by the National 
Association for the Advancement of Colored People.
    Chairman Durbin. Without objection, they will both be made 
part of the permanent record.
    [The information appears as a submission for the record.]
    Representative Cleaver. Given the disproportionate impact 
the voter suppression laws will have on African-American 
voters, these laws are reminiscent of the poll taxes used in 
the Jim Crow South. The laws are solutions in search of 
problems, especially when it comes to voter ID, because there 
is basically no evidence of voter fraud. Requiring voters to 
provide a specifically narrowly defined piece of photo 
identification is unnecessary. The safeguards currently in 
place to verify voters' identity actually work. That much is 
clear because there has been no evidence of substantial voter 
impersonation fraud. The only type of fraud requiring voters to 
provide a specific type of Government-issued ID guards against 
    Now, Mr. Chairman, the fraud often used by proponents turns 
out not to be fraud at all. Absentee ballot fraud, felons 
voting, and other issues are not solved, as my colleague said, 
by requiring voter ID, and 23 States and the District of 
Columbia now allow voters to show both photo and non-photo IDs, 
such as a utility bill or a bank statement.
    After the Reconstruction Era ended in 1877, African-
Americans ceased to hold significant political power in the 
South. In the 1890s, the Populist Party attempted to merge the 
common economic interests of poor African-American and white 
farmers. The elite party in the South at the time, the 
Democratic Party, wanted to retain their power, so they worked 
diligently to disenfranchise African-Americans to ensure their 
continuity of power.
    I am doing some family research. I was born and raised in 
Texas and had the great pleasure of growing up with two great-
grandfathers. One of them, Noel Albert Cleaver, who died at the 
age of 103--I was married with children--we have not been able 
to find any proof that Grandpa ever voted. In the State of 
Texas, during most of his life, Grandpa had to pass a literacy 
test in Texas. An example of the questions: How many seeds are 
in a watermelon? How many bubbles are in a bar of soap? That is 
what Grandpa faced. To vote, African-Americans had to pay $3.50 
in the State of Texas--Ellis County, Waxahachie, Texas. Grandpa 
in all likelihood lived in this country 103 years and never 
    He is not alone. There are many others who are in the same 
situation. I believe we have a modern-day poll tax. There is a 
cost for a State ID in every single State in the United States.
    My father, now 89 years old, has no idea of his birthday. 
My grandma, Grandma Annie Mae, his mother, had two sons born in 
the month of July--one on the 15th, one on the 27th. She could 
not remember which one. African-Americans were not allowed to 
go to hospitals at that time, so when my father and his older 
brother became teenagers they just decided to choose a day: 
``You celebrate this day, I will celebrate this day.'' And they 
have done it all of their lives.
    My father is 89 years old, in perfect health, still drives. 
But what happens if my father did not have a driver's license? 
He has no birth certificate. He was born in Grandpa's house in 
the kitchen. Why in the world are we doing things to make 
voting more difficult? It would seem to me in the United States 
of America in the 21st century we would do everything 
conceivably possible to give everybody encouragement to vote. 
We are encouraging democracy in Iraq. Let us demand it at home 
and do away with anything that prevents any American from 
    Thank you, Mr. Chairman. I appreciate the opportunity to be 
here before you.
    Chairman Durbin. Congressman Cleaver, thank you very much.
    We are honored to have Representative Todd Rokita here. He 
is serving his first term representing Indiana's 4th 
Congressional District. Like Senator Brown before him, prior to 
his service in Congress, Congressman Rokita served two terms as 
the Indiana Secretary of State. During his tenure he was 
president of the National Association of Secretaries of State.
    Congressman Rokita, the floor is yours.

                   FROM THE STATE OF INDIANA

    Representative Rokita. Thank you, Mr. Chairman. I am 
pleased to know that as I visit here from the other side of the 
Rotunda, you all do not take as much adherence to the time 
clock as we do on our side. In light of that, I will not be 
more than 40 minutes or so.
    Senator Graham. Do not push your luck.
    Representative Rokita. Chairman Durbin, Ranking Member 
Graham, and members of the Committee, thank you for the 
opportunity to share my experience with Indiana's photo ID law. 
In light of the last bit of testimony, I would like to indeed 
bring us back to the 21st century.
    As you may know, I was the Secretary of State of Indiana 
for 8 years, from 2003 to 2010, prior to coming here, and as 
Secretary of State I was also the chief election officer. When 
Indiana's photo ID law was created--and I helped draft that 
specific bill with my State legislators--it became law, and 
then I had to oversee the legal challenges that followed as 
well as implementing the law.
    Governor Daniels signed Indiana's voter ID law in the 
spring of 2005. Indiana's law requires that to vote in person a 
voter must present a valid photo ID issued by Indiana or the 
United States. That ID must have a photo of the voter and the 
expiration date.
    I imagine, as I listened to Representative Gonzalez's 
testimony, that to the extent one of those photo ID examples 
that he mentioned did not comply with the Texas law, it was 
because it did not have an expiration date. And there is a very 
logical reason why we have an expiration date in our law, and 
that was because people's facial images change. They get older, 
for example.
    Now, it was not that our law was so strict----
    Chairman Durbin. Unless you are a Senator or a Congressman, 
the same photo will last for decades.
    Representative Rokita. I have forgotten where I am. Thank 
you, sir.
    It is not that we were so strict in Indiana as to say, 
well, the photo IDs had an expiration date of yesterday and 
today is election day, therefore you cannot vote. I mean, that 
is an example that I would agree with these gentlemen on. That 
would be unreasonable. Our face does not change that much in a 
day. So as an example of the reasonableness in Indiana's law, 
we simply said, all right, you can vote on an expired ID up to 
2 years. We did things like that all along the way to 
accommodate the arguments that I am again hearing today, but 
certainly we have not heard for the first time. And the bottom 
line is that, after 6 years' worth of elections, Indiana's 
photo ID law works. In fact, people that agree with the 
comments that I have heard already have been looking. They have 
looked--I think they have given up looking finally for problems 
with Indiana's photo ID law.
    We have not been sued once. We have not even had 
allegations, legitimate allegations that anyone--Hispanic, 
black, woman, man, young, old, whoever--has been legitimately--
or illegitimately disenfranchised by Indiana's law, because it 
is reasonable.
    It is reasonable also because whether or not you agree that 
in-person voter fraud exists--and I will say that as 8 years 
being Indiana's Secretary of State, it does exist. We have 
allegations made every election. That does not mean I am trying 
to denigrate Hoosiers. We are, I think, some of the most 
reasonable, common-sense, God-loving, patriotic people that 
this Nation knows. But if it is happening in Indiana, it is 
happening everywhere, from New York to California.
    Now, these gentlemen and others say, ``Well, you cannot 
produce one case, you cannot produce one conviction; therefore, 
it does not exist.'' The word ``evidence'' was used. Well, that 
is not true. There is a lot of evidence. There are several 
cases that I have presented to prosecutors who have not taken 
up the case--not because of a lack of evidence, but because 
think about the kind of fraud it is. Think about the kind of 
crime it is. It is something that happens in an instant and 
then it is gone. The witnesses dissipate. These are volunteer 
poll workers. It is not a domestic violence case. It is not 
something that leaves visible scars or blemishes or bruises. 
And so it is the kind of case, it is the kind of fraud that is 
very hard to prosecute. But that does not mean it does not 
exist. And the bottom line, it is not a matter of how many 
cases or convictions there are, gentlemen. It is a matter of 
    In a free republic, you have got to have the personal 
responsibility to participate. Voting is one of the highest and 
best civic transactions we can undertake.
    I have heard today that people have to leave their jobs to 
come and vote. Why make it harder? Well, I would take the 
opposite end of that. People leave their jobs, they leave their 
work, sometimes they leave their kids to go vote. Hopefully 
they take their kids with them. Hopefully they wait in a short 
line, as they do in Indiana. We have not seen extended long 
lines in Indiana after 6 years at all. It has not elongated the 
voting process. But you leave your day-to-day life to come 
vote. And then you get to the poll, you get to the poll clerk, 
you sign in, maybe, and you realize that the perception is that 
the people that are doing this process do not take it nearly as 
seriously as some of the other transactions that they partake 
in in day-to-day life.
    So I would argue it leaves the perception of a lack of 
confidence. These people did not even care enough to find out 
who I was, yet they ask me to leave my life and go vote. We 
want to instill confidence in the process to drive up turnout. 
And, in fact, in Indiana, since we have had the photo ID law, 
voter turnout has gone up 2 percent. It was not enacted to 
increase voter turnout. It was not enacted to decrease voter 
turnout. But the effect was it has increased voter turnout. If 
you do it the right way, if you do it reasonably, you will 
instill confidence in our process, which is definitely needed, 
definitely a prerequisite to having a successful free republic 
and to allow this citizenry to participate and to grow the 
personal responsibility that is needed if we are going to 
maintain a free republic.
    So, with that, thank you for letting me come this 
afternoon, and I would like to enter my remarks for the record.
    Chairman Durbin. Thank you, Congressman Rokita, and, of 
course, your remarks in their entirety will be part of the 
record, and the remaining 35 minutes that you were going to 
take will be published instead of transcribed.
    [The prepared statement of Mr. Rokita appears as a 
submission for the record.]
    Chairman Durbin. I do not know if there are any questions 
of our guests from the House. If not, we are going to go to the 
second panel. We thank you very much for coming.
    I know Senator Graham has to go to another meeting, but 
thank you for joining us this afternoon.
    We are going to turn to our second panel of witnesses, and 
I will ask the witnesses to take their places at the table. 
Each witness is going to have 5 minutes for an opening 
statement, and their written statements will be included in the 
record. They include:
    Judith Browne Dianis, Hans von Spakovsky, and Justin 
Levitt. If they would please stand for just a moment, please, 
we have a tradition of administering an oath to our lay 
    If you would please raise your right hand, do you affirm 
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?
    Ms. Browne Dianis. I do.
    Mr. von Spakovsky. I do.
    Mr. Levitt. I do.
    Chairman Durbin. Let the record reflect that all three 
witnesses have answered in the affirmative.
    Our first witness is Judith Browne Dianis, co-director of 
Advancement Project, previously was an attorney with the NAACP 
Legal Defense and Educational Fund. Ms. Browne Dianis graduated 
from Columbia University School of Law, and was a recipient of 
the Skadden Fellowship.
    Ms. Browne Dianis, the floor is yours.

                   PROJECT, WASHINGTON, D.C.

    Ms. Browne Dianis. Thank you, Chairman Durbin, for inviting 
me to testify about new voting barriers. I respectfully request 
permission to enter my entire written testimony into the 
    Chairman Durbin. Without objection.
    Ms. Browne Dianis. I am a civil rights litigator and co-
director of Advancement Project, a national civil rights 
organization. Since 2000 we have worked with local civic 
engagement groups and election officials to eliminate barriers 
to voting.
    Our country has not seen such widespread attempts to 
disenfranchise voters as we have seen this year in more than a 
century. Inclusive democracy is under attack. New barriers to 
voting may neutralize recent surges in black, Latino, and youth 
voter registration rates and record voter turnout. These laws 
may systemically disenfranchise already registered voters in 
these groups as well as limit voting of people who are poor, 
people who are elderly, and people with disabilities.
    The new barriers to voting include laws that place 
restrictions on the number and type of acceptable voter 
identification introduced in 24 States this year; laws to limit 
early voting, such as bills passed in Ohio, Tennessee, Georgia, 
West Virginia, and in Florida, where 30 percent of voters cast 
early ballots in 2008 with twice as many African-Americans 
doing so than whites; laws that place restrictions on 
nonpartisan voter registration efforts, such as that in 
Florida; African-Americans and Latinos are more than twice as 
likely as white voters to register through voter registration 
drives; laws such as that passed in Kansas and Alabama 
requiring documentary proof of citizenship to register; 
policies such as those in Florida, Iowa, and Virginia making it 
harder for people with criminal records to regain their voting 
rights, even after they have paid their debt to society; and, 
lastly, reactionaries have announced plans to place millions of 
challengers at the polls in 2012 to challenge voter eligibility 
in ways that may intimidate voters and disrupt polling place 
    Of all the barriers, the most pervasive new threat to 
voting rights has been voter identification restrictions. The 
issue is less about whether voters should be made to 
demonstrate their identity at the polls but, rather, how 
restrictive the forms of identification should be.
    Election officials realize these laws are budget busters, 
have gone too far, and will create election administration 
nightmares. As Ohio Republican Secretary of State Jon Husted, 
splitting from party ranks, explained, ``I believe that if you 
have a Government-issued check, a utility bill in your name 
with your address on it, that no one made that up. They 
didn't...establish utilities in their name to commit voter 
fraud. Let's be clear about this. There are some other forms 
that are legitimate.... What if I lose my ID on election day? 
Should there be no other alternative I can use to cast my 
ballot? I think that there should be.''
    In a trial run in Wisconsin on voter ID, the Madison County 
clerk explains, ``Between showing ID and signing the poll book, 
the amount of time each voter needs to spend at the poll book 
has at least doubled. The minimum number of election officials 
needed at each polling place willincrease from five to nine. 
Election officials are very concerned about dealing with voter 
lines that could easily become 2 or 3 hours long.''
    Further implementing photo ID laws could cost cash-strapped 
States $20 million or more. Despite the myth that everyone has 
ID, many voters do not. In South Carolina, 178,000 registered 
voters lack a driver's license or State identification. In 
Wisconsin, 23 percent of voters aged 65 and older lack State 
ID. Among young voters 18 to 24, 78 percent of African-American 
men, 66 percent of African-American women, 59 percent of Latino 
men, and 46 percent of Latino women in Wisconsin lack the ID.
    The IDs are also hard to get. Nora Elze, 88, in Georgia, 
was told she needed to produce her 1946 marriage license to 
show her name changed to get an ID. She fears she will not be 
able to vote because of the difficulty of getting her marriage 
    In Missouri, we represent Emmanuell Aziz in a lawsuit 
challenging the ballot initiative that, if passed, would 
require State-issued photo ID. Mr. Aziz is a registered voter 
with an expired driver's license and passport, which lapsed 
during his illness with multiple sclerosis. He is confined to a 
wheelchair. It will be nearly insurmountable for him to get his 
license renewed due to a lack of transportation and inability 
to pay for the supporting documents.
    The difficulty of obtaining ID is exacerbated further by 
budget cuts that have led to the closure and reduced hours of 
offices where IDs and underlying documents may be obtained. In 
Wisconsin, DMV offices are closed on weekends, and 25 percent 
of offices open less than 1 day a month. Similarly, in Texas, 
approximately 500,000 Latinos and blacks live in counties 
without ready access to Department of Public Safety offices in 
their counties. Eighty counties have no office or closed it 
altogether. In Tennessee, only a third of the counties have DMV 
offices, and those in urban areas serving predominantly people 
of color have wait times up to 4 hours.
    Furthermore, the cost would-be voters must pay first for 
obtaining the underlying documents for ID, which is a certified 
birth certificate, et cetera, make these laws effectively poll 
taxes. In Texas, it would cost you $22 for a birth certificate, 
and a passport can cost up to $145. Thus, one must pay to vote.
    These new laws represent the largest legislative effort to 
roll back voting rights since post-Reconstruction Era. 
Collectively, they effectuate a trifecta of voter suppression, 
making it harder to register to vote, harder to cast a ballot, 
and harder to have a vote counting. And the impact is not 
evenly distributed and, indeed, is designed to effectuate 
political results.
    Americans should be outraged that across the country 
efforts are being undertaken to make voting harder and to 
silence some. After all, Election Day is the one great 
equalizer. Regardless of race, gender, religion, disability, or 
income, we all have the same amount of power when we go into 
the voting booth. That is what makes this Nation great. We 
cannot go backwards.
    Thank you.
    [The prepared statement of Ms. Browne Dianis appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much.
    Our next witness is Hans von Spakovsky, senior legal fellow 
at the Heritage Foundation Center for Legal and Judicial 
Studies. He is also the manager of the Heritage Foundation's 
Civil Justice Reform Initiative. Before this, Mr. von Spakovsky 
served 2 years as a member of the Federal Election Commission. 
Prior to that, he worked at the Justice Department as counsel 
to the Assistant Attorney General for Civil Rights. He has also 
served on the Board of Advisers of the U.S. Election Assistance 
Commission and on the Fulton County Board of Registrations and 
Elections. He is a member of the Fairfax County, Virginia, 
Electoral Board and the Virginia Advisory Board to the U.S. 
Commission on Civil Rights. He obtained his law degree from 
Vanderbilt University School of Law and his bachelor's degree 
from Massachusetts Institute of Technology.
    Mr. von Spakovsky, thank you for joining us and please 
    If you would like to repeat the compliment, go ahead.
    Mr. von Spakovsky. Is it on now? Okay.

                        WASHINGTON, D.C.

    Mr. von Spakovsky. Thank you, Senator Durbin. As we prepare 
for the 2012 election, it is critically important that States 
improve the security and integrity of our elections. One of the 
key principles in any fair election is ensuring that the person 
who casts a ballot is legally eligible to vote. The fairest way 
to do that is by requiring individuals to authenticate their 
citizenship when they register and their identity when they 
vote. Such measures also increase public confidence.
    As Governor Lincoln Chafee, an independent, said when he 
signed Rhode Island's new voter ID law, sponsored by Democratic 
State legislators, ``Requiring ID at the polling place is a 
reasonable request to ensure the accuracy and integrity of our 
    The evidence from numerous academic studies and actual 
turnout in elections is overwhelming that, contrary to the 
claims of opponents, voter ID does not depress the turnout of 
voters. In fact, a study by the University of Delaware and the 
University of Nebraska that looked at turnout across the 
country said the concerns about voter ID laws affecting turnout 
are much ado about nothing.
    Voter fraud exists, and criminal penalties imposed after 
the fact are an insufficient deterrent. When Justice John Paul 
Stevens wrote the majority opinion of the U.S. Supreme Court 
upholding Indiana's voter ID law, he noted that examples of 
such fraud have been documented throughout this Nation's 
history by respected historians and journalists, and not only 
is the risk of voter fraud real, but it could affect the 
outcome of a close election.
    African American Senator Harold Metz, who cosponsored Rhode 
Island's law, noted that very few adults lack one of the forms 
of ID that will be accepted, and the rare person who does can 
get a free voter ID card, and that he would not have supported 
any obstacle to voting.
    Polls show overwhelming support for voter ID across all 
ethnic, racial, and party lines. That is no doubt because 
Americans have to use a photo ID to obtain a library card, 
drink a beer, cash a check, board an airplane, or check into a 
hotel. Those in the leadership of organizations opposed to such 
common-sense reforms are clearly not in touch with their 
    Actual election results confirm voter ID does not hurt 
minority turnout. Voting in both Georgia and Indiana increased 
more dramatically in 2008 in the first Presidential elections 
held after their photo ID laws went into effect than in some 
States without photo ID. There was also an increase of over 7 
percentage points in the turnout of registered black Georgians 
from the 2006 to the 2010 midterm Congressional elections. The 
Georgia voter ID requirement was upheld in State and Federal 
court, including the Eleventh Circuit Court of Appeals and the 
Georgia Supreme Court. They held that such ID requirements are 
not discriminatory, do not violate the Constitution, or any 
Federal voting rights laws. After years of litigation, none of 
the plaintiffs, including the NAACP, could produce a single 
individual who did not have a photo ID or could not easily 
obtain one.
    In Indiana, the turnout of Democratic voters in 2008 
increased by over 8 percentage points from 2004, the largest 
increase in Democratic turnout of any State in the Nation. 
According to the census, there was a 5-percent increase in the 
turnout of the black voting-age population in the 2008 election 
compared to 2004. Black turnout in Indiana in 2010 was even 
higher than black turnout in the 2008 election, which was a 
banner year for black turnout.
    The evidence is indisputable also that aliens are 
registering and voting. In 2005, the GAO issued a report 
finding that up to 3 percent of the 30,000 individuals called 
for jury duty from voter registration rolls in just one U.S. 
district court were not U.S. citizens. I recently received an 
order from a 2010 immigration case in Orlando, Florida, the 
Cuban immigrant who arrived in Florida in April of 2004, and 
then promptly registered and voted illegally in the November 
    The only Americans really being disenfranchised as a large 
group today are overseas military voters. Only an anemic 4.6 
percent of them cast an absentee ballot that was counted in the 
2010 election, and that is something that does need to be taken 
care of.
    Three more quick points.
    The ability to travel freely within the U.S. is a basic 
right, yet there have been no claims that the Federal 
requirement to show a photo ID before boarding a plane is 
somehow discriminatory. No one can enter most Federal buildings 
to exercise the First Amendment right to petition the 
Government without a photo ID, and there have been no cries 
that this is Jim Crow.
    The right to work is just as important as the right to 
vote. Yet Federal law, passed by this Congress, mandates that 
no one can be employed without producing documentation 
authenticating their identity and U.S. citizenship or legal 
authorization to work. There are no claims that this Federal 
requirement is Jim Crow. States are simply implementing a 
similar requirement to authenticate identity and citizenship 
for voting.
    As Rhode Island Democratic State Representative John Ryan 
said, ``Voting is one of the most important rights and duties 
we have as Americans, and it should be treated accordingly.''
    Thank you.
    [The prepared statement of Mr. von Spakovsky appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much.
    Justin Levitt is our next and final witness on this panel, 
associate professor of law at Loyola Law School in Los Angeles, 
previously counsel at the Brennan Center for Justice at NYU Law 
School, served in various capacities for several Presidential 
campaigns, including the National Voter Protection Counsel in 
2008; graduated magna cum laude with a law degree and master's 
degree in public administration from Harvard, where he was an 
articles editor for the Harvard Law Review; also earned a 
bachelor's degree magna cum laude from Harvard College.
    Professor Levitt, thank you for coming all the way from Los 


    Mr. Levitt. Thank you very much, Mr. Chairman. Thank you 
for having me here, Mr. Chairman, Senator Franken, and thank 
you as well for entering the full written testimony that I have 
submitted to you into the record. I very much appreciate that.
    I am a constitutional law and election law scholar at 
Loyola Law School in Los Angeles. My scholarship is based on 
careful research into the very real-world costs and benefits of 
election policies. I think it is very important to have a 
grounding in real facts, and so I appreciate this opportunity 
to share some of them with you here today.
    Unfortunately, 2011 has seen several States ignoring this 
balance, careful balance of costs and benefits, imposing real 
burdens on real Americans without real reasons.
    There are several categories of these new laws. I would 
like to take just a few moments of my opening statement to 
address three:
    First, voter registration. We have heard a lot about this 
today. The biggest cutback is in Florida, again. In 2005, 
Florida law shut down registration drives for the League of 
Women Voters for the first time in its 67-year Florida history. 
That law was struck down in court. Now the restrictions are 
back. The new law requires citizens to get Government 
permission before they touch a voter registration form from 
anyone other than their immediate family. This stops impromptu 
drives at bake sales, churches, and at actual tea parties.
    Mr. Levitt. In the campaign finance arena, conservative 
groups have vigorously challenged far less burdensome 
restrictions. These new restrictions limit participation far 
more than necessary to ensure that the voter registration 
process is both clean and smooth.
    Second, early voting. We have also heard about this today. 
Florida has also cut back here. The most significant cut, the 
Sunday before election day. On this Sunday, particularly in 
minority communities and vastly disproportionately in minority 
communities, citizens who work long hours during the week go to 
the polls after church, fulfilling their civic obligations 
after their spiritual ones. Cutting this Sunday in particular 
makes no sense. That is, there is no justification for it at 
all. In Florida, each county could choose to offer voting on 
the final Sunday or not. Where it cost too much, counties 
declined. But ten counties opened the polls on that final 
Sunday because they thought they could better and more 
efficiently serve their constituents. As Senator Nelson said 
and as Senator Brown said, for no good reason the State now 
limits their options and increases their costs by mandating 
that they close shop on that final Sunday when people are 
coming from church.
    Finally, I would like to mention new restrictive ID laws. I 
have devoted extensive space to this in my written remarks in 
part because there is so much myth and misinformation out 
there, and I hope there is time to clarify in further questions 
if you have any.
    At the moment, six States stop citizens from casting a 
valid ballot at the polls if they do not have particular types 
of Government-issued photo ID. They are the minority. All 
States have some process to make sure that people are who they 
say they are before they vote. The other 44 States offer 
options because they know there are real live eligible American 
citizens out there who simply do not have the ID required in 
the most restrictive States. I give specific examples of 
specific names of these real live eligible people in my written 
testimony. There are many more. Voting is a right for them, 
    Now, everyone agrees that most citizens have photo ID. 
There is no dispute there. But a substantial number do not, and 
they have constitutional rights as well. It is tough to know 
exactly how many do not. There are good scientific studies and 
bad scientific studies. Unfortunately, I think Mr. von 
Spakovsky's numbers would fail Statistics 101 at just about any 
college in the country. The best way to know who does not have 
the right ID is to ask them. And when you ask them, between 2, 
from the most conservative estimates, and 20 million--between 2 
million and 20 million--American voting-age citizens raise 
their hands. They are disproportionately minorities, 
disproportionately poor, disproportionately young, 
disproportionately seniors. And if you do not have ID, it turns 
out that it is awfully tough to get ID.
    There is no good reason to close out these millions of 
people. As Senator Brown mentioned, Americans are killed by 
lightning more often than they are victimized by any sort of 
fraud that ID stops.
    Representative Rokita mentioned allegations of in-person 
impersonation fraud in Indiana. I would love to hear them. I 
have not yet seen any reports of any in-person impersonation 
fraud in Indiana, and I am not talking about prosecutions. 
Allegations--``We think there has been a problem.'' In fact, at 
the largest stage in the country, at the Supreme Court, there 
were a total of nine alleged votes nationwide since 2000 that 
might, if they were fraudulent at all, have been stopped by ID. 
Nine. There have already been many more than nine real 
Americans blocked by the new ID restrictions.
    Indiana's law does work, but it works to keep people from 
voting a valid ballot. And there have already been elections, 
including a school board election in 2010, decided by 
provisional ballots cast by individuals who did not have ID and 
could not prove, using Indiana's new restrictive law, that they 
were who they said they were.
    We have amputated a foot to cure a potential hangnail.
    One word on airplanes. Mr. von Spakovsky is fond of saying 
that you need photo ID to board a plane. I wish he would add, 
``And I am George Clooney,'' because neither one is true. To 
get to you today, I had to board a plane from Los Angeles. I 
never showed photo ID. While waiting in the terminal, I drank a 
beer while waiting for the flight, and quite enjoyed it. I 
never showed ID. To come testify before you today, I had to 
walk right in through this Federal building and never showed 
ID. In fact, I have not had photo ID in my wallet the entire 
    Airlines, restaurants, and Federal buildings have figured 
out ways of accommodating real American citizens without 
restricting them to single ID cards. And as a fundamental 
constitutional right, so should all elections in the country.
    The airplane analogy is also beside the point. This is the 
last thing I will mention. Voting is in two articles of the 
Constitution and ten amendments of the Constitution, featured 
at the very heart of our constitutional order. Boarding a plane 
is nice. Drinking a beer is very nice. But outside of 
Prohibition, I do not see that in the Constitution.
    None of the laws that I have mentioned today, none of the 
laws here make it 100 percent impossible to vote. But for many, 
as a practical matter, they do make it very, very difficult for 
no good reason. We all deserve better when it comes to our most 
fundamental constitutional guarantees, and I thank you very 
much for investigating this issue.
    [The prepared statement of Mr. Levitt appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much, Professor Levitt. I 
read your testimony in its entirety, and I know it is 
exhaustive in terms of the research you have done. I thank you 
for that very much.
    I found Congressman Rokita's statement hard to rationalize 
when he said something along the lines of we should not really 
count the fact that people are not prosecuting voter fraud 
because, you know, it is not worth prosecuting. He talked 
about, you know, witnesses are hard to come by; and we should 
not be concerned that there is no evidence of prosecution of 
fraud. And yet State after State is being urged to change the 
laws and impose new burdens on innocent people all across the 
State because of allegations of fraud, which is ``not worth 
prosecuting.'' I do not think you can have it both ways. If 
this is clearly designed to stop some terrible miscarriage of 
justice at the polling place, then it ought to be prosecuted, 
and there ought to be a clear example to the people of this 
country that we just will not stand for this, wherever it might 
    Mr. von Spakovsky, let me go back to a movie whose name I 
cannot recall where the seminal phrase was ``Show me the 
money.'' Remember that one, Al?
    Senator Franken. ``Jerry Maguire.''
    Chairman Durbin. Oh, I knew he would know that.
    Senator Franken. ``I will take Movies for $200.''
    I am sorry. ``What was Jerry Maguire? ''
    Chairman Durbin. So let us follow the money in this debate 
for a moment. Let us see who is pushing for these changes in 
the law and where the money is coming from and see if it gives 
us any kind of an indication of a political motive behind this.
    Are you familiar with a group known as the American 
Legislative Exchange Council?
    Mr. von Spakovsky. Certainly, Senator. It is the equivalent 
of the National Conference of State Legislators. It is a 
similar trade organization for State legislators.
    Chairman Durbin. And one of the founders, Paul Weyrich, are 
you familiar with this man?
    Mr. von Spakovsky. Certainly. He helped start the Heritage 
Foundation, too.
    Chairman Durbin. And one of the preeminent conservative 
political spokesmen in America who said in a moment of candor, 
``I do not want everybody to vote. As a matter of fact, our 
leverage in the elections quite candidly goes up as the voting 
populace goes down.'' This quote comes from Paul Weyrich, one 
of the founders of the American Legislative Exchange Council.
    Then you take a look at where the money is coming from for 
this council to undertake these legislative efforts all across 
the United States, and you find a couple of brothers: David and 
Charles Koch, billionaire conservative financiers who have 
spent substantial sums of money, even before Citizens United, 
to promote a pretty conservative political agenda.
    Now take a look at the people most affected by these new 
laws. You have heard it said over and over again. I think you 
have said it in your testimony. I will just tell you as a 
sophomore student of political science, I would bet the people 
we are talking about are more likely than not to vote on the 
Democratic side. Not all of them by any means, but more likely 
than not. So is this a great leap to put these two things 
together, that these two financiers through this council 
spending millions of dollars promoting changes in State law 
that will restrict the outcome of elections when it comes to 
Democratic voters?
    Mr. von Spakovsky. Senator, you can do that with any 
subject in America. In fact, there is a famous Hollywood thing. 
I am seven stages removed from--which actor is it?
    Senator Franken. It is----
    Senator Franken.--Kevin Bacon. It is not seven. It is six.
    Mr. von Spakovsky. Six. Very good.
    I do not believe that the Democrats in Rhode Island who 
control the State I think four to one in the State legislature 
would agree with that. They are the ones who thought this bill 
was necessary. I read you some of the quotes from the 
legislators who were in favor of this. And the same thing----
    Chairman Durbin. But take----
    Mr. von Spakovsky. The same thing happened in Kansas.
    Chairman Durbin. Do you----
    Mr. von Spakovsky. Democratic legislators also voted to 
approve this voter ID legislation.
    Chairman Durbin. Do you dispute my premise that the 
American Legislative Exchange Council has played an active role 
in the promulgation of the State laws that we are discussing 
here today?
    Mr. von Spakovsky. Senator, they have a lot of model bills 
that they recommend to their State legislators.
    Chairman Durbin. I will take that as a yes.
    Mr. von Spakovsky. Yes, and those are--those are approved 
by votes of their State legislators at their Committee 
    Chairman Durbin. And do you also concede the fact that the 
Koch brothers are major financiers of conservative causes, 
including this council?
    Mr. von Spakovsky. I have no idea, Senator. I do not keep 
track of major contributors to organizations like that.
    Chairman Durbin. We do. And----
    Chairman Durbin. I would like to ask you as well, do you 
not note that the people we are talking about by and large, 
whether African American, poor, elderly, and such, are 
generally inclined toward voting on the Democratic side? Do you 
dispute that?
    Mr. von Spakovsky. I do not dispute, Senator, that, for 
example, you know, probably upwards of 90 percent of African-
Americans in this country vote Democratic. But what I am 
disputing is the idea that voter ID, for example, depresses 
their turnout. The actual numbers in elections in Georgia and 
Indiana since the voter ID laws have been passed show that that 
is not true. There have been significant increases in the 
    Chairman Durbin. Well, let me ask----
    Mr. von Spakovsky.--of African-American voters in those 
elections. And if--no. If the premise that is being made here 
were true, that, in fact, this suppressed their turnout, then 
that would have happened. It has not happened in those States. 
In fact, the University of Missouri did a study of Indiana 
shortly after the voter ID law went into place, and they found 
that there was no statistically significant showing that that 
was occurring. In fact, the only thing that came close to being 
statistically significant was the fact that turnout seemed to 
go up in predominantly Democratic counties.
    Chairman Durbin. Professor Levitt, what is your response to 
the turnout defense?
    Mr. Levitt. Well, this is where I pointed out the 
statistical flaws. There is a basic--and I mean basic--
misconception here. It is called ``the correlation-causation 
fallacy,'' and anybody who has had statistics for a week can 
talk to you about it. Yes, so Mr. von Spakovsky and I agree on 
one thing, that the turnout studies do not show a great impact, 
but that is because they cannot. There are so many different 
factors that go into an election that when you only have two or 
three data points--Georgia before and after, Indiana before and 
after--you cannot draw any real conclusions about that.
    I will give you an example. Mr. von Spakovsky supports ID 
restrictions. I oppose them. Mr. von Spakovsky has no facial 
hair. I have facial hair. But certainly opposition to photo ID 
does not cause facial hair to grow.
    Mr. Levitt. They are simply unrelated. The 2008 election in 
particular is a particularly bad example. Georgia and Indiana 
were battleground States for the first time in decades in a 
Presidential election, and minority turnout in those States 
would have been buoyed through the roof with a Presidential 
candidate at the top of the ticket for a major party who was 
himself a minority. Under any circumstance, in Georgia and 
Indiana in 2008, turnout should have shot up. And the fact that 
it went up in Georgia by about 19 percent does not tell you 
anything about whether it would have gone up by 17 percent plus 
2 percent for ID or 35 percent minus 16 percent for ID. That 
is, you just cannot know what effect ID is having with such a 
massive, overwhelming output of minority voters like that.
    Chairman Durbin. So let me ask you this question on early 
voting. It appears that consciously these legislatures are 
denying an opportunity for early voting on the Sunday before an 
election, and it has been stated by Ms. Browne Dianis and 
others--I think you may have stated it yourself--that in many 
minority communities people go to church and then proceed to 
vote early. So is the premise here that there is more fraud in 
early voting on Sunday than there is on another day of the 
week? I am trying to follow the logic of this effort to 
restrict early voting.
    Mr. Levitt. It is tough to follow that logic because I am 
not sure I see any logic there. I have not heard it justified 
based on fraud, although I have heard just about anything else 
justified based on fraud. I have heard it justified based on 
cost, but the important thing to note is that this actually 
restricts flexibility. You heard from several members of the 
first panel that election administrators love opportunities 
when it is up to them to expand early voting because it helps 
smooth out the profile, because it helps get people in when 
they do not have to pay overtime, because it helps them 
actually process voters as voters want to come in, and because 
it helps them serve their constituents. And in Florida, 
election administrators had the flexibility--the law allowed 
them to offer 8 hours of early voting over the weekend. They 
could choose to offer it on Saturday, or they could choose to 
offer it on Sunday. And in at least ten counties, including the 
most populous counties, election administrators thought they 
could best serve their constituents by offering it on Sunday. 
They no longer have that latitude. And the impact on the 
minority community is striking.
    In my written testimony, I have explained. In 2008, 13 
percent of African-Americans were the total electorate; 31 
percent of the final Sunday were African Americans. Latinos 
were 11 percent of the total electorate, 22 percent of the 
final Sunday--double the impact. And 2008 was a banner year for 
minority turnout. Look to 2010, same pattern. Twelve percent of 
the electorate were African Americans; 23 percent of that final 
Sunday. And for Latinos, 9 percent of the electorate and 16 
percent of the final Sunday. The minority communities come out 
to vote on that final Sunday, and now they cannot.
    Chairman Durbin. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. I unfortunately 
have to go in about 5 minutes because I have an important call, 
so thanks.
    Professor Levitt, there is a lot of talk about this is a 
matter of confidence because whether or not there have been 
actual--because we cannot find any convictions in voter fraud, 
so this is a matter of confidence. Do you think that it erodes 
confidence when people allege voter fraud and there just does 
not seem to be any convictions for it and there is no--and who 
tends to allege voter fraud more in your experience in this 
    Mr. Levitt. Unfortunately, in my experience, every time a 
candidate loses, there are allegations of voter fraud. At least 
that is the most common.
    I do think it erodes confidence when people allege voter 
fraud that is not there, and, in fact, you will see election 
administrators really fighting very strongly allegations of 
voter fraud when they know they have run clean elections. And 
they later turn out, to explain that all of these allegations 
just disappear. They are easy to make just after elections, and 
then they vanish thereafter.
    I can also tell you that it is often asserted that we need 
ID laws in order to promote voter confidence, but here, too, I 
fall back on facts. It is a crutch I have. Professor Stephen 
Ansolabehere and Professor Nate Persily wrote an article in the 
Harvard Law Review examining the data, so they asked people, 
``How confident are you in the elections? '' And they looked at 
the photo ID laws in those States, and they found no 
correlation whatsoever. It turns out that if you believe the 
election is stolen, you believe it no matter what the legal 
regime is. And if you believe it was fair, you believe it no 
matter what the legal regime is. So it just does not have that 
    Senator Franken. Okay. Thank you.
    Mr. von Spakovsky, in 1982 this Congress amended the Voting 
Rights Act to prohibit not just voting practices with a 
discriminatory intent, but also those practices that 
disproportionately hurt minority voters regardless of intent. 
In 2006 the Senate reauthorized that law by 98-0. It was not a 
voice vote, either. It was 98-0.
    Mr. von Spakovsky, we have heard some very persuasive 
evidence from your fellow witnesses today that these laws from 
voter ID laws to restrictive registration laws 
disproportionately hurt minority voters. Do you think that they 
comply with the letter and the spirit of the Voting Rights Act 
as amended and overwhelmingly reauthorized by Congress?
    Mr. von Spakovsky. I would agree with Judge Harold Murphy, 
who was a Federal judge in Georgia who found that, in fact, 
Georgia's voter ID law was not discriminatory, and that is why 
he threw out all of the claims that had been made against it 
that it was discriminatory. And, in fact, that decision was 
upheld by the Eleventh Circuit. So you do not need my opinion. 
That is the opinion of a Federal judge who not only examined 
that law but held very detailed and very lengthy hearings and 
looked at all of the evidence that a number of groups tried to 
present in court, including the ACLU and the NAACP, to show 
that it would have a discriminate impact. And the judge 
concluded that they were unable to prove that it did.
    Senator Franken. Mr. Levitt, what do you have to say to 
    Mr. Levitt. It is true that the court did find that there 
was no violation of Section 2 of the Voting Rights Act. I will 
say that it did not credit much of the evidence of burden about 
going to get a photo ID for those who did not have that, and 
there are voters in Georgia for whom this is quite burdensome.
    There is a different provision of the Voting Rights Act, 
Section 5 of the Voting Rights Act, that the court did not have 
a chance to address because the Department of Justice is the 
only entity that has a chance to address it if it signs off on 
the law. That was a very controversial pre-clearance exercise. 
I believe that there was a staff memo, not normally leaked but 
in this case leaked to the public, that came in recommending 
that the law not be pre- cleared. And then the very next day, 
so a 70-some-page staff memo, the very next day the law was 
pre-cleared without objection. And that decision never got a 
second hearing in a court. There is no jurisdiction to give 
that decision a second hearing.
    Senator Franken. I see. I wanted to go back. I know that 
Mr. Levitt talked about this, but this was the use of the 
number of additional votes in 2008 in Georgia's black 
population. Mr. von Spakovsky, do you think that part of that 
might have been because Georgia was targeted as a battleground 
State and had not been for a long time?
    Mr. von Spakovsky. Well, let me make two points. First of 
all, Mr. Levitt said I was only talking about one or two data 
points. Well, that is untrue. There are a number of studies 
that have been done, including one by the Heritage Foundation, 
that looked at turnout over more than one election in all 50 
States, including a study that I looked at earlier--I mentioned 
earlier, the University of Delaware and University of Nebraska. 
They looked at turnout in, I think, the 2002, 2004, and 2006 
elections, and all concluded that it did not depress the 
turnout of voters across socioeconomic lines.
    Now, with regard to Georgia, you know, we had a great 
turnout in the 2008 election. In fact, you know, we had one of 
the highest turnouts in decades. But the turnout in Georgia 
went up in comparison to other States that also went up. For 
example, Mississippi, a neighboring State, large African-
American population, just like Georgia, the increase in turnout 
there was only about a third what it was in Georgia. Indiana--
    Senator Franken. Can I ask you something?
    Mr. von Spakovsky. Sure.
    Senator Franken. Do you know how much Mississippi grew in 
terms of black population during those years versus Georgia?
    Mr. von Spakovsky. I do not, but I do know----
    Senator Franken. Well, wouldn't that--excuse me. I am 
sorry. Wouldn't that have to factor in then, the significance 
of that?
    Mr. von Spakovsky. It certainly does, but Georgia's 
Secretary of State recently noted that, in fact, for example, 
in the 2010 elections the turnout of African-Americans outpaced 
their registration by like 20 percent.
    Senator Franken. Well, here is my question. You did a 
study, and you put in your testimony that it was significant 
that the percentage of black voters grew more in Georgia than 
in Mississippi, and you just cited it again. But I would think 
that as someone who writes studies that it would be significant 
to know that the black population in Georgia grew at more than 
4 times the rate than the black population in Mississippi. And 
I am wondering how you did not factor that in and put all kinds 
of significance into the fact that the percentage of blacks who 
voted grew more in Georgia than in Mississippi when, in fact, 
Georgia was, I think, the second highest next to Kentucky in 
terms of percentage of growth of black population during the 
last decade. Don't you think that that is a little sloppy that 
you put that in without noting that Georgia grew at more than 4 
times the rate that Mississippi did? And didn't that create an 
    I have to go. I am sorry. I mean, doesn't that----
    Mr. von Spakovsky. Do you want me to answer the question or 
not, or----
    Senator Franken. I am sorry. It is more than 3 times the 
rate, not 4 times the rate. I apologize.
    Mr. von Spakovsky. All you are telling me, Senator, is that 
the increase in turnout kept up with the rate of growth, which 
is just another sign that it did not affect or depress the 
    Senator Franken. Well, I was basically kind of saying that 
you put something in your testimony that did not--that 
suggested something that was not necessarily--that created an 
inference that was not true.
    Mr. von Spakovsky. Well, I would disagree with that, 
    Senator Franken. Yes, but I think that it is hard to really 
argue with it because you did not note that Georgia's black 
population grew at a much, much, much faster rate than 
Mississippi's, and yet all you did was put that their black 
voting rate increased more. And I think that is creating an 
inference that--either you knew it or you did not know it, but 
I think you should have checked it out.
    Chairman Durbin. Thank you very much, Senator Franken. I 
appreciate your coming and your patience.
    I want to ask a few more questions, and, Ms. Browne-Dianis, 
you are not going to get off the hook. You were invited to be 
part of this panel, and I would like to hear your comments. You 
probably heard Senator Bill Nelson speak about the situation in 
Florida, and voter registration. And I am concerned that a 
group like the League of Women Voters would decide to get out 
of the business. And I am also concerned that there are many 
other organizations, nonpartisan organizations, focusing on 
voter registration that may share their concerns when you 
impose burdens like the new Florida law does.
    So, if I can, I would ask you to comment on the impact of 
these new voter registration standards. They have been alluded 
to here, turning in voter registration within 48 hours and the 
like. If you could comment on what impact this is likely to 
have on voter registration turnout.
    Ms. Browne Dianis. Sure. As Professor Levitt mentioned, 
this actually was not the first time that the Florida State 
Legislature tried to increase the penalties for voter 
registration groups and the burdens on them. However, 
Advancement Project and the Brennan Center sued on behalf of 
the League of Women Voters before, and we were successful in 
settling that case.
    We believe what will happen this go-round is that a number 
of requirements that groups did not have to meet before, that 
are very similar to Jim Crow registration requirements of the 
1950s and 1960s where, first of all, groups will have to go and 
register as registrars in the State and go through a process, a 
burdensome process of filling out paperwork, will not make it 
very easy for these groups.
    Second, there is a 48-hour turnaround for groups to turn in 
completed registration forms. Of course, there is some concern. 
First of all, the turn around deadline had been 10 days. A 
registration group could take its voter registration form and 
make certain that it was of high-quality. Part of the problem 
is that the new requirement will chip away at the quality of 
voter registration that third party that groups are doing, 
because often the best voter registration groups--and I have 
seen this in the State of Florida--take these voter 
registration forms, make sure that they are filled out 
completely before they are submitted. If they are not, they go 
back to the person that was applying to register to get the 
missing information before they hand it in to the registrar, 
thereby cutting down the work that the registrar may have to do 
in processing incomplete forms.
    It will also increase the penalties, actually the cost and 
the fines that registration groups will encounter if they do 
not turn in the registration forms within the 48-hour period.
    So if you are looking at this as the League of Women 
Voters, the NAACP, other nonpartisan groups, and thinking about 
the cost to us of messing up one time or two times, it may not 
be worth it. And so to have an organization like the League of 
Women Voters, that has been doing voter registration in Florida 
for over 60 years, pull out of Florida is very devastating. It 
really is about whether or not people will have access to 
voting. And, again, as I said in my testimony, African-American 
and Latino voters are more likely than white voters to register 
through third party voter registration drives than going into 
the motor vehicle office or some other agency to do the 
    Chairman Durbin. So what have you found in this Advancement 
Project that you are part of in terms of the incidence of voter 
fraud? Professor Levitt and Mr. von Spakovsky obviously have a 
different point of view. What have you found?
    Ms. Browne Dianis. Sure. We have looked at the studies; we 
looked at what the Department of Justice did during the Bush 
administration in its 5-year investigation of voter fraud, 
coming up with very little voter fraud. One thing that was 
mentioned earlier was the issue about a Cuban coming to America 
and registering to vote. The new photo identification 
requirements do not prevent that. What helps is Federal law. 
The Help America Vote Act requires that a voter registration 
applicants you provide either a driver's license number or the 
last four digits of their Social Security number that can be 
matched against their name. And so there are other protections 
in Federal law that really address these issues so that we do 
not have to go to new photo ID requirement. And, again, it is 
about whether or not the law allows for multiple forms of 
identification. Professor Levitt got on a plane with multiple 
forms, not just that one photo ID.
    And so, again, it is the solution without the problem; and 
there is no documentation of the problem. In Indiana, they 
could not come forward with a case of impersonation in front of 
the Supreme Court. So if they cannot find the cases, they do 
not exist, because I am sure they have been looking for them 
for a long time.
    Chairman Durbin. I sent a letter to a number of Governors 
as a result of this hearing asking them for some information 
about what is going on in their State where these laws are 
being changed. I hope they respond.
    I want to make particular note of a neighboring State to 
Illinois--Wisconsin. Wisconsin has a State agency, the 
Legislative Fiscal Bureau, and they determined that 20 percent 
of the people living in Wisconsin do not possess the kind of 
identification required by the new Wisconsin law. That includes 
177,000 elderly people, 36 percent of young voters, 70 percent 
of African-Americans under the age of 25, and approximately 
242,000 Wisconsin college students whose student ID cards do 
not meet the strict new requirements in Wisconsin law.
    Let me go to student ID cards for a minute here. It seems 
to me that these States are going out of their way not to 
acknowledge IDs issued by State universities. Texas is a good 
illustration. Your ID at the University of Texas does not meet 
the test. However, your application for a firearm, that ID does 
meet the test. Hmm. Can we draw any political conclusions from 
    I would like to ask you, when you take a look at where this 
is headed, is it a leap to suggest that these laws are more 
restrictive in terms of potential Democratic voters?
    Ms. Browne Dianis. It is not a leap. When you look at the 
groups that will be disproportionately impacted by these laws--
black voters, Latino voters, young voters in States like South 
Carolina, Texas, and Wisconsin where they will not be able to 
use their student IDs--there clearly is a correlation because 
those are the groups that saw a surge in voter registration in 
2008 and saw a surge in turnout. And so there is real concern 
that these new restrictions are targeted at these folks so that 
they will not be able to participate in such great numbers in 
    Chairman Durbin. Now, one of the things Wisconsin made a 
point of doing was saying we are not going to charge for the ID 
card. That was smart because I think that would have just 
fallen on its face as basically a poll tax. You have made the 
point and others have made the point that going to get a birth 
certificate is not a free enterprise. You end up paying for it 
usually if you need one to prove your identity for one of these 
State ID cards.
    But there is also another element, and I will give you an 
example here in Wisconsin. There is only one DMV office in the 
entire State of Wisconsin that is open on weekends. One for the 
entire State. More than half of the DMV offices open during the 
week only have part-time hours. Three counties have no DMV 
office at all.
    So I have written to the Governor and asked him, ``You are 
considering closing more DMV locations because of budgetary 
problems. How are you going to accommodate the issuance of IDs 
to one out of five people in Wisconsin who do not have them? '' 
Is this a problem beyond Wisconsin?
    Ms. Browne Dianis. Sure. As I mentioned earlier, in Texas 
it is also a problem where 80 counties have either no DMV 
office or have closed their DMV offices. Of course, as we see 
the cutbacks in budgets across the country, we will see more of 
these offices closing. And when you look at the correlation--
actually, it is my testimony--the correlation between race and 
where those offices have closed, you will find that there are 
disparities in the impact of the closures of those offices, 
thereby making it more difficult for African-American and 
Latino would-be voters to actually get their ID in order to 
    Chairman Durbin. Mr. von Spakovsky, you said that photo ID 
laws increase public confidence in elections. But if that is 
the case, what impact does disenfranchising people who cannot 
make it to these DMV offices because of inconvenient locations 
or inconvenient opportunities, what impact does that have on 
public confidence in elections?
    Mr. von Spakovsky. Well, I think as I have said both in my 
written testimony and here today, those claims are, quite 
frankly, bogus, Senator. Let me read you a quick quote from the 
Indiana Federal district court that said this: ``Despite 
apocalyptic assertions of wholesale voter disenfranchisement, 
plaintiffs have produced not a single piece of evidence of any 
identifiable registered voter who would be prevented from 
voting pursuant to the photo ID law.''
    All of the same claims being made here today, that there 
are huge numbers of people without photo ID, that they will not 
be able to vote, were made not just in the Indiana case but 
also in the Georgia case before Judge Harold Murphy, who, by 
the way, is not a conservative judge. He is a Carter appointee. 
And, in fact, the plaintiffs in that case venue shopped to file 
their case up in a small town in the northwest corner of 
Georgia specifically to get that particular judge. And he also 
said that this failure to identify those individuals is 
particularly acute in light of the plaintiffs' contention that 
a large number of Georgia voters lack acceptable photo ID.
    In both cases, when it actually came to not making claims 
but producing actual evidence that there are large numbers--or 
even a single individual that would not be able to meet these 
photo ID requirements because they either did not have a photo 
ID or could not easily obtain one, these organizations were 
unable to do so, and that is why those laws are in place and 
have been in place now for several elections in both States.
    Chairman Durbin. Your first quote was from the Crawford v. 
Marion County Election Board case which considered Indiana's 
photo ID law, and you have cited that case to support your 
point that photo ID laws do not prevent people from voting, and 
you quoted the court's statement to that effect. Your citation 
is misleading because the Crawford case was filed before the 
Indiana law was even implemented.
    Isn't it true that in Crawford there were no plaintiffs 
that had been harmed by the photo law because the election in 
Indiana had not occurred and Indiana's voter ID law had not 
been implemented?
    Mr. von Spakovsky. Well, I would refer you to what 
Congressman Rokita said earlier. Any groups, the same groups 
who contested the case before the U.S. Supreme Court could have 
within the last few years filed an as-applied challenge based 
on actual individuals that they claim are unable to vote 
because of the law, and as Congressman Rokita said, you know, 
where are the suits making that claim?
    Chairman Durbin. Professor Levitt.
    Mr. Levitt. So it is a little odd listening Mr. von 
Spakovsky begging for more litigation. I think your point is 
exactly right, that the suit was brought before there was ever 
a chance to enforce the law. That may or may not speak to a 
particular plaintiff's strategy, but it does not speak at all 
to whether there were actual voters burdened.
    It is also important to listen to the quote, and Mr. von 
Spakovsky quoted accurately, but the judge said: ``There is no 
individual prevented from voting who has been put before the 
court.'' There were plenty of individuals, mostly in an amicus 
fashion, who would have had a really, really hard time, and the 
court essentially set a higher standard than public policy 
should ever set in determining that it was only going to look 
at people who were locked out, no point of return, not caring 
about the individuals who would be substantially burdened. And 
there are real individuals.
    Since that case was brought, we know that there have been 
individuals without ID who have tried to vote and failed. Real 
people. Retired nuns in South Bend in 2008. I believe that 
there were at least ten of them turned away, and one of the 
nuns who was turned away noted that many others among the 137 
retired sisters living at the Congregation of Sisters of the 
Holy Cross Convent were dissuaded from voting upon learning 
that their sisters had been turned away--that is, never showed 
up to cast a provisional ballot. We do not have the evidence 
that they tried to vote because sisters came home and said, 
``Hey, we just went down to the polls and we could not do it.''
    Chris Connolly, a 50-year-old veteran of the Navy and 
Marines, tried to vote in Indiana's 2008 primary, but his 
Veterans Administration photo ID card did not have an 
expiration date, and so he was not able to cast a valid ballot.
    That is just one example here. There are many others that I 
have put forward in my written testimony for you. But I frankly 
think it is shameful to conceive of even one veteran who served 
our country and watched brothers and sisters die to preserve 
others' right to vote turned away for no good reason. And, yes, 
it is true that Mr. Connolly did not bring a lawsuit, but that 
should not be the standard when looking at whether these laws 
are rational, whether they are good public policy, and even 
whether they are constitutional.
    Chairman Durbin. I want to thank this panel for joining us 
today and being part of what I believe may be the first hearing 
on the subject on Capitol Hill. I hope others will follow. What 
is at issue here goes beyond the ordinary fare of these 
committees, as important as it may be, because the right to 
vote in America has been described as ``the right preservative 
of all other rights.'' It really is fundamental. It goes way 
beyond getting on an airplane or anything else that we might 
do. And that is why I think it should be treated with extreme 
care, and each generation should accept the responsibility to 
make certain that we preserve this right to vote for all those 
in America who have fought so hard to maintain it over the 
years and who honor it as we do.
    Dozens of organizations are on the ground educating the 
public, challenging these laws, and fighting to preserve the 
right to vote for all Americans. Many of them have submitted 
statements, including Lawyers Committee for Civil Rights Under 
Law, the Leadership Conference on Civil and Human Rights, the 
Brennan Center for Justice, Rock the Vote, Demos, AARP, Fair 
Elections Legal Network, Constitutional Accountability Center, 
United States Student Association, Human Rights Campaign, NAACP 
Legal Defense and Educational Fund, the League of Young Voters, 
America Votes, District Supervisor Nikiya Harris of Milwaukee, 
Campus Progress, National Coalition for the Homeless, National 
Action Network, National Coalition on Black Civic 
Participation, and without objection, I will make these 
statements that they have submitted part of the record.
    [The statements appears as a submission for the record.]
    Chairman Durbin. I thank these organizations and especially 
thank the witnesses for the sacrifices they made to come here 
today and be part of this important hearing.
    The hearing record will be open for one week to accept 
additional statements. Written questions for the witnesses may 
also be submitted, and I hope they can respond in a timely 
    If there are no further comments from those on the panel, I 
want to thank our witnesses again for attending and all those 
who are here today and my colleagues for participating. The 
hearing stands adjourned.
    [Whereupon, at 3:51 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follows.]

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