[Senate Hearing 112-373]
[From the U.S. Government Publishing Office]
S. Hrg. 112-373
NEW STATE VOTING LAWS II: PROTECTING THE RIGHT TO VOTE IN THE SUNSHINE
STATE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
----------
JANUARY 27, 2012
----------
TAMPA, FLORIDA
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Serial No. J-112-58
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Printed for the use of the Committee on the Judiciary
S. Hrg. 112-373
NEW STATE VOTING LAWS II: PROTECTING THE RIGHT TO VOTE IN THE SUNSHINE
STATE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JANUARY 27, 2012
__________
TAMPA, FLORIDA
__________
Serial No. J-112-58
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
73-813 PDF WASHINGTON : 2012
-----------------------------------------------------------------------
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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
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS
DICK DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island JON KYL, Arizona
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
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
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STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1
prepared statement........................................... 152
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 243
WITNESSES
Ertel, Michael, Supervisor of Elections, Seminole County,
Sanford, Florida............................................... 7
McFall, Ann, Supervisor of Elections, Volusia County, De Land,
Florida........................................................ 5
Nelson, Hon. Bill, a U.S. Senator from the State of Florida...... 4
Parks, Daryl D., President, National Bar Association,
Tallahassee, Florida, statement................................ 23
Pemberton, Sarah, President, Florida College System Student
Government Association, Clearwater, Florida, statement......... 28
Smathers, Bruce, Former Secretary of State of Florida,
Jacksonville, Florida, statement............................... 10
Smith, Daniel A., Professor of Political Science, University of
Florida, Gainesville, Florida, statement....................... 21
Wilkes, Brent A., National Executive Director, League of United
Latin American Citizens, Washington, DC, statement............. 25
SUBMISSIONS FOR THE RECORD
Brennan Center for Justice, University School of Law, New York,
New York, statement and attachments............................ 37
Ertel, Michael, Supervisor of Elections, Seminole County,
Sanford, Florida, statement and attachments.................... 156
FOCUS, Federation of Congregations United to Serve, Liz Buckley,
Executive Director, Orlando, Florida, January 19, 2012, letter. 179
FEA, Florida Education Association, Andy Ford, President,
Tallahassee, Florida, January 24, 2012, letter................. 180
Garcia, Evelyn T., President, Democratic Haitian American Caucus
of Florida (DHACF), Lake Worth, Florida, January 20, 2012,
letter......................................................... 183
Hancock, Phyllis, President, A. Philip Randolph Institute Central
Florida Chapter, January 23, 2012, letter...................... 184
Harvey, Trevor D., President of Sarasota County, NAACP, Sarasota,
Florida, letter................................................ 186
Hastings, Hon. Alcee L., a U.S. House of Representative from the
State of Florida, statement.................................... 187
Herron, Michael C., Department of Government, Dartmouth College,
and Hertie School of Governance and Daniel A. Smith, Department
of Political Science, University of Florida, joint statment.... 189
Lawyers Committee for Civil Rights, Under Law, Washington, DC,
statement...................................................... 210
Leadership Conference on Civil and Human Rights, Wade Henderson,
President & CEO, Washington, DC, statement..................... 236
Long, Michael, Student Body President, New College of Florida,
Sarasota, Florida, statement................................... 245
McFall, Ann, Supervisor of Elections, Volusia County, De Land,
Florida, statement............................................. 246
Mi Familia Vota Education Fund, Jose Balasquide, Florida State
Director, Orlanda, Florida, statement.......................... 251
Rodriguez, Eric, Vice-President, National Council of La Raza
(NCLR), Washington, DC, statement.............................. 254
Neal, Beverlye Colson, National Congress of Black Women (NCBW),
Florida, statement, Washington, DC, statement.................. 258
Nelson, Hon. Bill, a U.S. Senator from the State of Florida,
statement...................................................... 262
Newton, Bill, Executive Director, Florida Consumer Action Network
(FCAN), Tampa, Florida, statement.............................. 264
Parks, Daryl D., President, National Bar Association,
Tallahassee, Florida, statement................................ 268
Pemberton, Sarah, President, Florida College System Student
Government Association, Clearwater, Florida, statement......... 273
Progress Florida, Mark Ferrulo, Executive Director, St.
Peterburg, Florida, statement.................................. 279
Project Vote, Washington, DC, statement.......................... 281
Sancho, Ion V., Leon County Supervisor of Elections, Tallahassee,
Florida, statement............................................. 285
Shalinsky, Barry M., PAVA Program Director, Disability Rights
Florida, Tallahassee, Florida, statement....................... 291
Simon, Howard L., Executive Director, American Civil Liberties
Union of Florida (ACLU), Tampa, Florida, statement............. 301
Smathers, Bruce, Former Secretary of State of Florida,
Jacksonville, Florida, statement............................... 313
Torres-Spelliscy, Ciara, Assistant Professor of Law, Stetson
University College of Law and Nina Hayden, Tampa Bay, Florida,
statement...................................................... 328
Walker, Eddie J., Pastor, In God's Time Tabernacle of Jesus,
Orlando, Florida, letter....................................... 340
Wilkes, Brent A., National Executive Director, League of United
Latin American Citizens, Washington, DC, statement............. 342
NEW STATE VOTING LAWS II: PROTECTING THE RIGHT TO VOTE IN THE SUNSHINE
STATE
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FRIDAY, JANUARY 27, 2012
U.S. Senate,
Subcommittee on the Constitution, Civil Rights, and
Human Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:02 p.m.,
Hillsborough County Courthouse, 800 E. Twiggs Street, Tampa,
Florida, Hon. Richard J. Durbin, Chairman of the Subcommittee,
presiding.
Present: Senator Durbin.
Also Present: Senator Nelson.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Chairman Durbin. Good afternoon, everyone. It is an honor
to be here in Tampa with my colleague Senator Bill Nelson at
the Hillsborough County Court facility. This is a hearing of
the U.S. Senate Judiciary Subcommittee on the Constitution,
Civil Rights, and Human Rights, and it will come to order.
Today's hearing is entitled ``New State Voting Laws:
Protecting the Right to Vote in the Sunshine State.'' The
hearing will examine the impact of State law H.B. 1355,
Florida's new voting law.
My name is Dick Durbin. I am the U.S. Senator from
Illinois, and I chair the Senate Subcommittee on the
Constitution, Civil Rights, and Human Rights, which is part of
the Senate Judiciary Committee. For those who are attending
their first Congressional hearing, let me explain a few items
of procedure.
I will deliver a brief opening statement and then recognize
my colleague Senator Nelson to do it as well. Then we will turn
to our witnesses for their opening statements, and Senator
Nelson and I will then pose questions to the witnesses.
We have two panels. We are very pleased that we have such a
great turnout here, a large, enthusiastic, and interested
audience for the hearing. It demonstrates the importance of
this issue.
At the outset I want to note, though, that the rules of the
Senate when it comes to these hearings are rather strict. They
prohibit outbursts or demonstrations of any kind at a public
hearing. As Chairman, it is my responsibility to enforce the
rules. If there are disruptions, I will warn those responsible,
and if they continue to interrupt, I will have no choice but to
ask for the removal of those persons from this hearing room.
Let me say at the outset that, 4 days from now, hundreds of
thousands of people across the State of Florida will go to
their polling places to cast a ballot for the person they
believe is best prepared to represent their political party in
the next year's Presidential election. This time-honored
tradition of public debate, intense campaigns, and the orderly
selection of party nominees is the hallmark of our democracy
and every democracy. Of course, the core element of that
democracy is the constitutionally protected right of every
citizen of legal age to cast a vote for the candidate of his or
her choice.
It is important that we recall that until the early 20th
century, most American adults could not legally vote. And even
after the franchise right to vote was legally expanded, a
violent racist campaign prevented many African-Americans from
voting. Sadly, the Jim Crow laws of that era were a reality in
this State, and it was not until 1969 that Florida became one
of the last States to ratify the 19th Amendment, which expanded
the right of women to vote.
Six constitutional amendments and numerous laws,
regulations, and court decisions have helped make the promise
of one person/one vote a reality in Florida and all across
America. But we must be constantly vigilant against threats to
these hard-fought victories.
The Supreme Court Citizens United decision, which was
issued 2 years ago this week, opened a floodgate of special
interest money into campaigns. I do not have to tell people
living in Florida about that. At the same time, over the course
of last year, the right to vote has come under question, if not
attack, nationwide. In more than 35 States, legislation has
been introduced that threatens to roll back the progress our
country has made over several generations, expanding and
protecting the right to vote. More than a dozen States have
already enacted laws that eliminate same-day registration,
require voters to present restricted forms of identification
before voting, reduce the number of early voting days, and make
it harder for first-time voters to register. These new voting
laws appear to be part of a coordinated and well-funded effort
to reduce turnout among specific groups of people, namely,
minority, young, low-income, and rural voters.
In response to this disturbing trend, our Subcommittee on
the Constitution, Civil Rights, and Human Rights held the first
Congressional hearing in Washington to examine these new State
voting rights laws in September of last year. At that hearing
we learned that these new State voting laws threaten to keep as
many as 5 million Americans from voting this year. As the
testimony at today's hearing will demonstrate, many of these
voters who may find their path to the ballot box blocked or
filled with obstacles live right here in the State of Florida.
Now, Senator Bill Nelson approached me and asked me to hold
this field hearing because of his concern that the
constitutionally protected rights to vote are under attack.
Today's hearing is the first ever field hearing of this
Subcommittee. For the record, the Republican members of the
Committee were invited to attend. As well, they were given an
opportunity to present witnesses. They have suggested a witness
who will be on the first panel considered by the Subcommittee
hearing. I want to thank Senator Nelson for his concern and
advocacy on this issue, which I share, and I am happy that he
is with me today.
We will hear from today's witnesses about H.B. 1355 that
made a number of changes in Florida's voting laws: first,
cutting the number of early voting days almost in half, from 14
to 8; second, eliminating early voting on Sunday before the
election; third, requiring third-party organizations that
register voters to register with their State and meet an array
of onerous administrative requirements or face hefty fines of
hundreds or even thousands of dollars; requiring Florida
residents who have moved within the State and are updating
their addresses at their polling site to vote a provisional
ballot. For the record, more than 40 percent of the provisional
ballots were not counted in our last election.
Governor Rick Scott signed H.B. 1355 into law last year in
Florida. In September of last year, I sent the Governor a
letter asking whether he planned to take any action to ensure
that H.B. 1355's new restrictions would not disenfranchise
legally able voters in Florida. To date, the Governor has not
responded to my letter.
I also invited Governor Scott to attend this hearing today,
hoping he would come personally to explain his support for H.B.
1355 and answer the questions raised about the law. I am
disappointed that he will not be able to join us. Had Governor
Scott or a designated representative of his administration
accepted our invitation, they would have had an opportunity to
answer some pretty important questions.
Was the provision of H.B. 1355 that eliminates early voting
on the Sunday before an election specifically targeted to
reduce the turnout of African-American and Latino voters who
make up an overwhelming number of voters who show up on the
Sunday before the election?
Did the Florida Legislature anticipate that H.B. 1355's new
administrative requirements for third-party voter registration
groups and the threat of fines imposed would force groups like
the League of Women Voters, Rock the Vote, and the Boy Scouts,
as well as other respected organizations to suspend their
nonpartisan voter registration drives?
Why does H.B. 1355 require Floridians who attempt to update
their addresses on election day to cast provisional ballots, a
large percentage of which are not counted in the final result?
I am pleased, though, that the Governor, if he could not
attend, that we do still have a distinguished panel--two panels
of witnesses who will provide insight. Before recognizing
Senator Nelson for an opening statement, I am going to ask
consent for the record for him to participate in today's
hearing and make it clear that it has been my practice in
Washington to invite Senators, even if they are not members of
the Committee or Subcommittee, but have an intense personal
interest or a local interest in the issue to participate. So
this is not a new approach, but for the record, I am asking
consent for the participation of Senator Nelson, and without
objection, he is recognized.
Senator Nelson.
STATEMENT OF HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Nelson. Thank you, Mr. Chairman, and thank you for
holding this historic, first time your Subcommittee in a State
where we have a serious question of the civil rights of people
being denied.
All of us agree that the right to vote is a precious right,
and it sets apart the United States from a lot of the countries
of the world. In our own country, so many times young men and
women have put on the uniform of this country to defend it, and
one of those things they are defending is the right to vote.
And we have seen in our history when this right has been
constricted that painfully the country has come through the
experiences realizing that the right to vote and to be able to
cast that ballot without obstruction is the way that our
Constitution envisions that America should be operated.
And as you have eloquently pointed out, Mr. Chairman, that
right is paramount among all constitutional rights. We, the
people, emanate and give adherence to the right to govern us,
but we select those who govern. When that right is impeded,
then the very Government itself is threatened.
Now, of all places, Florida, what we went through in the
year 2000 in a Presidential election, seeing the inability of
voters to cast a ballot and to cast it to be counted as they
intended, to the credit of the State of Florida, after that
experience they made the laws of Florida such that it was
easier to vote. Thus, we had early voting, and thus, the old
absentee ballot where you actually had to swear that you were
going to be absent on the day of voting, that was changed to
vote by mail. And, of course, organizations such as the League
continued to register voters, and for decades that law was such
that once they registered a vote, they had 10 days in which to
turn those names in. And, of course, what we have seen is the
constricting of those rights in this law that is now the law of
the State of Florida.
Ultimately, this is going to be decided by a judicial panel
that is convened where the very law itself, the Voting Rights
Act of 1965, is being challenged. And for a redress of these
grievances, since apparently there is not going to be a
changing of the law in the State legislature with the
cooperation of the Governor, apparently it is going to have to
be changed by the courts looking at this and determining if
people are constricted in their right to cast their ballot.
I think the witnesses that we are going to hear today will
give ample testimony that that is the case, for when specific
groups of people are targeted, when you find that voting on
Sundays has been particularly popular with Hispanics and
African-Americans, and you take away one of those Sundays in
the law, when you find that, as we have already mentioned, the
League of Women Voters cannot take the chance that one of their
members, in doing a civic good, is going to be fined up to
$1,000, when you see the enormous participation because young
people for a change started getting excited about Government
and politics, as we were in my generation, and then along came
a lot of changes, and the unpopularity of the Vietnam war and
the souring of young people on what was going on in politics
and Government, and yet they got energized once again. And that
college student wants to go down and register, and they
register. And then if that college student, under the existing
law, then happens to go down on election day to try to vote,
show me your identification, they pull out their driver's
license; their driver's license shows the address in another
county where they grew up with their parents, and they are not
going to get a ballot. They are going to get a provisional
ballot. And the facts are facts. Look how many provisional
ballots were not counted in the last Presidential election.
And so, Mr. Chairman, I cannot thank you enough for
convening this hearing. I am looking forward to this testimony.
Thank you very much.
Chairman Durbin. Thank you very much, Senator Nelson.
The first panel I invite to the witness table: Ann McFall,
Michael Ertel, and Hon. Bruce Smathers. If you would remain
standing for just a moment, it is the custom of the Committee
to swear in the witnesses. Please raise your right hand. Do you
affirm the testimony you are about to give is the truth, the
whole truth, and nothing but the truth, so help you God?
Mr. Ertel. I do.
Ms. McFall. I do.
Mr. Smathers. I do.
Chairman Durbin. Thank you. Let the record reflect that the
three witnesses have answered in the affirmative. I will
recognize each one for an opening statement, and then Senator
Nelson and I will ask some questions.
Ann McFall is the supervisor of elections in Volusia
County. Did I pronounce that correctly?
Ms. McFall. Yes.
Chairman Durbin. I am a stranger to this area, and I do not
want to mispronounce it.
Previously, she was owner of McFall and Associates, an
accounting and tax service. She served for 8 years on the
Volusia County School Board and 6 years as Volusia County
Council member, including a stint as chair of both the School
Board and the County Council. Supervisor McFall has served on
the Board of Directors for the Florida State Association of
Supervisors of Elections. She graduated from Stetson University
with a bachelor's degree in business administration, majoring
in accounting.
At this point, Supervisor McFall, the floor is yours. We
will give you 5 minutes, and there will be some flexibility if
you need a little extra, so please proceed.
STATEMENT OF ANN McFALL, SUPERVISOR OF ELECTIONS, VOLUSIA
COUNTY, DE LAND, FLORIDA
Ms. McFall. Thank you, Senator, and Senator Nelson as well.
Welcome to Florida.
Thank you for giving me the opportunity to bring to light
some changes in the 2011 voting laws in Florida. Let me take a
moment to explain that I have been an elected official in
Volusia County, Florida, for 22 years. I am retiring as of
December 31, 2012, and will not be running for any other
office. There is no reason for me to go out on a limb against
some of the law changes other than to use this as a forum to
bring awareness.
There are four areas of concern that stand out, in my
opinion. Those are changes to early voting, changes to third-
party voter registration, address changes at the polls, and
selection of the date of the primary in August of 2012.
Early voting shall begin on the 10th day, changed from the
15th day, before an election that contains State or Federal
races and end on the third instead of the second day. Effects
of these changes are significant. The legislature seemed to
believe that it will save local Departments of Elections money
in having early voting for fewer days. In reality it will cost
my department more money. My data base of competent, well-
trained workers for early voting includes only so many workers.
If 12-hour days is the hours decided, some workers will have to
arrive at my office 1\1/2\ hours from the opening of the early
voting site, stay until the last voter has voted, and come back
to my office after closing and balancing, therefore causing 15-
hour days for 10 days. With a regular 40-hour work week as the
norm, some of the workers will put in 100 to 150 hours in the
work cycle for each election, causing more overtime than actual
regular time.
In my personal opinion, a change to Florida Statute 101.657
that should have been made and was not was flexibility should
have been given to the supervisor of elections to choose early
voting sites from a broader choice. Currently, early voting can
be held only at the Department of Elections main office, a
satellite office that has been open at least 1 year, a public
library, or a city hall. What is missing are community centers,
college campuses, county buildings, parks, YMCAs, storefronts,
malls, churches. You get the idea. I can count in Volusia
County alone there are probably 30 to 35 of those places that
it could use if given permission.
Third-party voter registration, and this is why I have come
out so publicly in arguing against 1355. Changes in the voting
registration process are considered by many to be frustrating
and unenforceable. This became apparent to me when my office
received an envelope with approximately 50 completed
applications from a New Smyrna Beach High School teacher who
oversaw a voter registration drive of high school seniors at
the beginning of the year. She waited a couple of weeks--
unknowingly breaking the law--in order to make sure all
applications had been completed and given back to her. Because
of this, I was forced to submit her name as being out of
compliance with the new law. Two months later, I was forced to
report a well-known community activist in the Daytona area as
being out of compliance due to handing in four applications
late. She was at a church function on a Friday evening,
assisted four people in filling out the applications, and
delivered them to my office on the Tuesday immediately
following the function. She assumed that the 48-hour
restriction began on the Monday that my office actually opened
back up when, in fact, it began Friday evening as soon as she
received the applications.
Address changes at the polls. Previous to 2011, address
changes from one county to another were permitted to be
completed at any early voting site or at the correct precinct
on election day. Changes to Florida Statute 101.045 now state:
``Except for an active uniformed services voter or a member of
his or her family, an elector whose change of address is from
outside the county may not change the address and vote a
regular ballot.'' As you mentioned, they have to vote
provisional.
But, yet, in another area of the election law, Florida
Statute 97.072, the law has changed to allow an out-of-county
address change to be made over the phone. Specifically, the law
now states: ``If the address change is within the State and
notice is provided to the supervisor . . . where the elector
has moved, the elector may do so by contacting the supervisor
of elections via telephone or electronic means.''
In summary, that means if I go to an early voting site and
I used to live in Mr. Ertel's county and I move to Volusia, I
could call up on the outside of the early voting site, change
my address, and go in and vote a regular ballot. If I go right
into the polling place or the early voting site and change my
address, I vote provisional. It just does not make sense.
Volusia County has five colleges and universities located
in the county: Stetson, Bethune Cookman, Embry Riddle, Daytona
State College, and a UCF satellite campus. A majority of
address changes in previous elections were actually from
students who live somewhere else in the State but attend
postsecondary schools in Volusia County and choose to vote in
Volusia County. That is who it is going to impact.
And, finally, the primary election date. Florida Statute
100.061 has changed the primary election date to be held 12
weeks prior to the general election as opposed to 10 weeks. The
August 14, 2012, election is a week before most universities
open. In addition, in a year of apportionment there is a good
possibility that reapportionment will not be complete before
candidate qualifying begins on June 4, 2012.
Again, thank you for the opportunity of appearing before
you today. I will be glad to answer any questions you may have.
[The prepared statement of Ms. McFall appears as a
submission for the record.]
Chairman Durbin. Thank you, Supervisor McFall.
Next is Michael Ertel. He is the supervisor of elections
for Seminole County. Previously, he was in the public affairs
field, including serving as Seminole County Government's first
public information professional as the director of public
relations for a 185-location bank and conducting post-disaster
public relations for the State of Florida's tourism market
agency Visit Florida. Prior to this, Supervisor Ertel served in
the United States Army for 8 years, and we thank you for that
service. He graduated from the University of Maryland
University College, and at this time he will have an
opportunity to make a 5-minute statement, but as I said to
Supervisor McFall, there will be some flexibility if you need a
little extra time. So please proceed.
STATEMENT OF MICHAEL ERTEL, SUPERVISOR OF ELECTIONS, SEMINOLE
COUNTY, SANFORD, FLORIDA
Mr. Ertel. Great. Thank you very much, Senator Durbin and--
--
Chairman Durbin. Is your microphone on? You want to check
and see.
Mr. Ertel. Is it here?
Chairman Durbin. OK. Good.
Mr. Ertel. Thank you very much, first of all, for holding
the hearing, and this is such a perfect location to hold the
hearing. Florida is the largest swing State in the country. The
I-4 corridor traveling from here in Hillsborough County through
Polk, Osceola, Orange, Seminole, and ending over in Volusia
County, that is the largest swing area in the State. So these
counties without a doubt are going to be the counties that
could end up choosing the next leader of the free world. So
this is a perfect location and perfect timing for the hearing.
Thank you very much, Senator.
But also because of that, I know that our elections are
going to be scrutinized, and scrutiny is good. You know, folks
taking a good, honest look at the process is fantastic and I
like. Our elections law that Supervisor McFall mentioned is--
overall, Florida election laws, if I had a red pen, I would
certainly make some changes to those laws. But, you know, I
think what we have here is the most fair, transparent, and open
system in the entire history of the world, is right here in the
United States of America.
Again, like I said, scrutiny and debate are fine, and, you
know, it is the irony of Senator Durbin being here, it is--we
have all heard jokes about Florida elections. We have all heard
jokes about Illinois elections. And, really, the joke teller is
you can tell their political affiliation based on who the
victim of the joke is. So it is fun to be here with you.
Today I want to rationally discuss three issues that seem
to be at the heart of these hearings: voter registration, early
voting, and eligibility verification.
First of all, in voter registration, Supervisor McFall
mentioned the school teachers and being unable to register
voters at their site. You know, one thing we did in Seminole
County to work around that was I deputized every single high
school principal in Seminole County. What that did was that
allowed them--they are chief deputy supervisors of elections
with the very limited authority of registering the students
that are in their schools to vote. That way the kids that go
there 5 days a week--hopefully they are there 5 days a week--
are able to register to vote in a place that they are
comfortable with. And we, of course, in the office also go
there.
You also mentioned the League of Women Voters and other
organizations like that, canceling their registration drives.
When they put out their--the Florida League put out the press
release saying that they were going to be canceling their
drives, I sent them an e-mail and said, ``Please do not. Please
do not cancel the drives. We will go to your drive with you,
and we will allow you to do the voter registration, and we will
just take the forms.'' That way a voter would not have to wait
10 days for their form to get turned in. They would not have to
wait 48 hours for their form to get turned in. With our
cooperation with the league, their form would be turned in
immediately. I never received a response to that e-mail. Our
local league, however, we are working in concert, and we are
going to have an event in April.
Early voting is something else that has been discussed.
Florida, of course, according to the National Conference of
State Legislatures data, is one of only 12 States in the entire
country that has early voting on the weekends. We have early
voting on the Saturday before the election day. Again, we are
one of only 12 States with statewide early voting on the
weekend.
You mentioned the Sunday early voting period. I did a
little research on this current election, the only statewide
election that has taken place since 1355 has been passed, early
voting on Sunday, and the communities you had mentioned were
the black community and the Hispanic community, early voting on
Sundays is actually the day that they were least likely to go
to the polls. The first 5 days of early voting in this very
election that is taking place right now, the day that they
would least likely go to the polls is Sunday.
Now, I think what we are going to find, again, in this
first year of the implementation of this new law, I think what
we are going to find is that most early voting will now take
place on the Saturday before election day, and why is that?
Because it is the final day of early voting, and people are
realizing that this is my last chance to cast that early voting
ballot. So I think that we are going to find that tomorrow is
the busiest day of early voting throughout the State of
Florida.
Eligibility verification. You also discussed the students
and moving from one place to another. As Supervisor McFall
mentioned, there are ways to ensure that your address is
updated as quickly as possible. But if a student wants to wait
until the last day, until the very last day, to tell us where
they live, I believe that it is fair to ask a government agency
to allow us 2 days to ensure that they have not already
previously cast a ballot. I think that is a fair number of days
to ask. And contrary to what may have been heard before, you do
not have to go to the Elections Office for your ballot to
count. If you fill out an eligibility verification ballot or
provisional ballot, you do not have to come back and send us a
copy of your driver's license. We just say if you have not
voted previously in another county, your provisional ballot
will count. The number of provisional ballots that did not
count last year, everybody mentions, you know, 40 percent, 40
percent. By ``last year,'' I mean 2010. Forty percent, 40
percent. Why? Why did those ballots not count? Nobody ever says
why they did not count. It is because the voter was not
qualified to cast a ballot at that precinct on that day. It is
the idea they did not change--they were not registered to vote,
which is most of them would be folks that are not registered to
vote. So I think that eligibility verification is something
good to do, and I think that it is something that is vital to
do.
I saw the press conference outside. It was very exciting.
But I am not naive enough to believe that simply stating facts
about the voting process will cause people who profit either
personally, professionally, or politically from election chaos
from amputating fear-mongering from their body of rhetoric.
If you are a voter and you are watching this, your local
elections officials want you to register to vote. We want you
to cast a ballot, and we want that ballot to count. We are in
the business of opportunity, so please allow us that
opportunity.
And if I can close with a short anecdote, thank you very
much, Senator. My second election I held when I was supervisor
of elections in Seminole County was a run-off election for
mayor, and there were two candidates on the ballot. Only one
race on the ballot, two candidates. We had a sailor who had
previously requested an absentee ballot for all elections up to
a certain point. We had to get him his ballot, but he was on a
submarine, and the U.S. Postal Service does not have submarine
service. So we tried to find a way to get him his ballot, so we
said, OK, we will try to fax it to him. They would not allow us
to fax it to him. We said we will try to e-mail it to him, and
they said, ``No, no, we cannot accept attachments on an e-
mail.''
So I called Washington, D.C., I called his voting
assistance officer in his unit, I called--we spent tons of time
trying to get this one sailor his one ballot for his election
so he could vote for his candidate of choice for mayor in the
run-off election.
Finally, through enough persistence, hours and hours of
persistence with our office and the navy voting assistance
office and help from Washington, D.C., we were able to get them
to open up the fax lines long enough so we could fax this
sailor his ballot. We had a special public meeting of the
canvassing board late at night our time to do this, and we were
pretty excited about that, and we slapped palms and stuff like
that. We finally got him his ballot.
He did not vote.
About 3 weeks later, he calls me, a couple weeks later, he
calls me and he is, like, ``You guys went through hoops to get
me my ballot.'' I said, ``Well, that is our job. We are in the
opportunity business.'' And he is, like, ``But I did not vote
because I did not know any of the candidates. And I am not
going to throw my vote away simply because I have the
opportunity to do it.'' And he understands the responsibility,
and it is the whole moral of this entire hearing, I believe, is
that we in the elections administration business are in the
opportunity business. And as voters, we have the responsibility
to ensure that we exercise this most precious gift from our
Constitution in a responsible manner.
Thank you, Senators.
[The prepared statement of Mr. Ertel appears as a
submission for the record.]
Chairman Durbin. Thank you very much, Supervisor Ertel.
Bruce Smathers, a name well known in Florida and in
Washington, was a member of the Florida State Senate and was
elected Secretary of State of Florida from 1975 to 1978. After
his political career, he practiced law, ran family orange and
automobile businesses, and served on numerous private
charitable boards. Mr. Smathers, of course, is the son of
George Smathers, former Congressman and U.S. Senator from
Florida. He earned his undergraduate degree in economics from
Yale and a law degree from the University of Florida. He served
in the navy and is a decorated Vietnam War veteran.
Mr. Smathers, thanks for joining us. The floor is yours.
STATEMENT OF HON. BRUCE SMATHERS, FORMER SECRETARY OF STATE OF
FLORIDA, JACKSONVILLE, FLORIDA
Mr. Smathers. Thank you, Mr. Chairman, Honorable Senator,
and guests. My name is Bruce Smathers. It is my privilege to
appear before your Subcommittee.
I want to explain why a retired public servant who served
as a State Senator and then as Florida's Secretary of State is
speaking out on these new election laws. The simple answer is
that I am offended by what is happening, and I cannot sit idly
by as the constitutional and civic rights of qualified
Americans are eroded by this type of partisan legislation. That
it is occurring in my native State makes it doubly offensive.
With a family history of public service that goes back at
least four generations, I feel the effort of the Florida
Legislature and the Governor to tilt the elections for pure
partisan purposes by suppressing the registration and voting
opportunities of groups likely to vote Democratic is to me not
only deplorable but disgraceful. The right to vote for all
qualified Americans is a basic constitutional and civic right.
It is the strength of our democratic system. Without it, all of
our other treasured rights, whether it is the freedom of
religion, freedom of speech, or freedom of association, will
eventually evaporate. Our enjoyment of private property rights,
freedom from undue government interference, and our rights to
the due process of the law all ultimately exist because of the
fundamental right of every qualified American citizen to vote.
As a Vietnam veteran, I am acutely aware that during the
last century over a hundred thousand Americans have died
overseas to not only protect our democratic right to vote, but
to provide that opportunity to millions of people around the
world. We have just finished a war in Iraq in which thousands
of our best and brightest died, tens of thousands more have
been wounded, and between $1 and $2 trillion of our National
treasure has been expended in an effort to provide the right to
vote to the people of Iraq.
Yet, after all that sacrifice, our brave men and women who
return home find that, at least in Florida, their State leaders
have engaged in an effort to erode that basic right of voting
to thousands and probably tens of thousands of qualified
Florida citizens. Many of those who bravely served in American
forces overseas were Americans of African-American or Hispanic
descent. They return to Florida to find their State government
actively attempting to suppress the registration as well as
restricting voting opportunities of members of their own
heritage. I am not only offended, but as a former State Senator
and Secretary of State, I am ultimately ashamed of these
actions.
During my tenure as Secretary of State, we passed reform of
Florida's election laws, I am proud to say with bipartisan
support of both Republicans and Democrats in both legislative
chambers. The vast majority of House Bill 1355 has a positive
or at least defensible ministerial impact on elections and has
already been approved by the U.S. Department of Justice.
However, it is my opinion there are specific provisions in this
legislation that represent the greatest attack on registration
and voting opportunity and thus voting rights of qualified
Florida citizens in recent memory. As such, I believe the
legislation should be referred to, tongue in cheek, as the
``Registration and Voting Suppression Act of 2011.''
I do not make this comment lightly, however. It is made
after reviewing the legislation, how it originated, and the
circumstances of its passage. I talked to legislators and
citizens who participated in the debate surrounding its passage
and its signing. I have talked to supervisors of elections and
attorneys, read outside reports, as well as newspaper accounts
of this bill.
If the justification of House Bill 1355 to enhance the
integrity of the electoral process or fight fraud were true,
this bill would have attracted bipartisan support from both
Republicans and Democrats in both chambers, the full support of
the supervisors of elections and their association, widespread
support among community organizations, as well as support from
statewide media. All of these groups as well as all Floridians
want to enhance the integrity of our elections, want to prevent
fraud and electoral abuse.
Contrarily, this bill was and is seen as a highly partisan
attempt by the Republican majority to tilt the electoral
process in favor of the Republican Party. This judgment was
affirmed by widespread criticisms of the bill in the State's
major newspapers as well as a well-known effect on nonpartisan
volunteer groups such as the League of Women Voters, teachers,
the NAACP, La Raza, and others.
It is my hope that this Committee will come to the
conclusion that House Bill 1355 is designed to suppress voter
registration and voter participation of groups such as African-
Americans and Hispanics, the elderly, the poor, students, and
others who need assistance in registering and voting. I hope
that you will find that this bill also violates Federal laws
protecting these basic American rights because we have no hope
in Tallahassee.
Thank you very much.
[The prepared statement of Mr. Smathers appears as a
submission for the record.]
Chairman Durbin. Thank you, Mr. Smathers.
Senator Nelson and I will now ask some questions, and let
me start with a general question to the three of you. Flying
into Florida, hearing this debate, I would draw one of two
conclusions:
Either, as Mr. Smathers just said, there is a political
agenda here. Somebody is trying to keep certain people from
voting or make it harder for them to vote.
Or another conclusion: There is terrible voter fraud in
Florida. Something had to be done to the laws.
So, Supervisor McFall, what has been your experience when
it comes to voter fraud in your jurisdiction or others and
whether it has addressed anything that you have seen with this
new law?
Ms. McFall. Well, Senator, it is not because of voter fraud
because voter fraud is not out there. After the 2000 election--
and I served on the canvassing board, the Bush-Gore recount, in
Volusia County as a commissioner. After that election, the
State of Florida implemented the Florida Voter Registration
System. That is catching a whole lot of duplicates. For
instance, moving from Seminole to Volusia, I fill out a new
application. That will automatically catch it. That application
also has a four-digit--the last four digits of your Social on
there or your driver's license number. That has to be matched
before that voter is activated as an eligible voter. There is
not fraud in the voter registration process, and personally I
do not care who hands in applications. If the applications are
valid, it will show. If it is not valid, then they will be
caught as well. And we have a great relationship with our
State's attorney, so it is not fraud.
Chairman Durbin. Do either of the other two witnesses
disagree?
[No response.]
Chairman Durbin. Well, then let me ask this question of
you, Supervisor Ertel. You have said, and I quote you, ``We are
in the opportunity business.'' Reducing the number of days for
early voting, does that increase opportunity or decrease
opportunity?
Mr. Ertel. It depends on how you look at it.
[Laughter.]
Chairman Durbin. Please.
Mr. Ertel. Pause for laughter. It depends on how you look
at it, because, you know, the new early voting laws--the old
voting laws, by the way, had 96 hours of early voting. The new
early voting laws allow each supervisor the discretion of
having up to 96 hours of early voting. So, you know, we--which,
by the way, if we do--I first registered to vote in 1987 for
the 1988 election, so that makes me 42 if anyone is doing their
math. You know, when I first voted, there was no early voting.
In 1992, when President Clinton was elected, there was no early
voting. In 1996, when he was re-elected, there was no early
voting. And, you know, we go down the entire process there. So,
I mean, early voting is a new phenomenon.
Absentee voting, the increase in absentee voting, is also
something that is new over the past several decades where folks
have excuse-free absentee voting. So, you know, back when I
first registered to vote and years and years before that, and
as you mentioned, you used to have to have an excuse to vote
absentee. You had to promise, ``I am going to be at the
doctor's office.''
Chairman Durbin. So is it your conclusion then that these
changes in absentee voting and early voting have created more
opportunity until this new law?
Mr. Ertel. Yeah, those--they created a longer time frame in
which people can cast their ballot. So, for instance, if you
take a look back years and years and years ago, there was 12
hours to vote--12 hours to vote. Now we have 96 plus 12 hours
to vote. People used to always complain about why is voting
only on Tuesdays. Well, voting is not only on Tuesdays. Voting
is on Saturday, Sunday, Monday, Tuesday, Wednesday, Thursday,
Friday, Saturday, a couple days off, and again on Tuesday.
Chairman Durbin. But not Sunday. Let me ask you this
question----
Mr. Ertel. Well, actually, Senator, I do not believe that--
I do not know if--in fact, I did some research. Of all of the
Senators on the Committee, and I say this with full respect, I
do not believe that any of the States of any of the Senators on
this Committee have Sunday early voting the day before the
election.
Chairman Durbin. We have early voting in Illinois. We have
not restricted it. We have expanded it, and I am behind
expanding it even more. I think we should give people as much
opportunity as possible.
Mr. Ertel. I do not think it is on Sunday, though, Senator.
Chairman Durbin. Let me ask you this question: In terms of
Seminole County, you have some discretion under this new law
about how long you will be open during that early voting
period. What are you going to do?
Mr. Ertel. In November?
Chairman Durbin. Sir, will you commit to opening early
voting locations at the maximum number of locations in Seminole
County and keeping them open and available to voters for the
maximum number of days, 8 days, 96 hours, as allowed under the
new law?
Mr. Ertel. Absolutely. In the November election we are
going to.
Chairman Durbin. Good.
Mr. Ertel. In this election we do not have those 12 full
hours of early voting. We have from 10 to 6. In the November
election we absolutely will. And if I can add one more thing
about early voting.
Chairman Durbin. Go ahead. Sure.
Mr. Ertel. Thank you, sir. In years past, we were one of
the only counties in the State that had early voting on the
Sunday before the election. We saw a higher turnout--again, not
because it was on Sunday but because it was the final day of
early voting. As people are realizing, as the campaigns are
coming to a conclusion, folks are realizing, ``This is my last
chance to go to the polls early.''
Chairman Durbin. Let me ask you about the overture which
you made to the League of Women Voters when they said they were
going to cancel registration. That was a noble gesture on your
part, and did you make the same overture to other organizations
that had historically been engaged in voter registration,
nonpartisan voter registration?
Mr. Ertel. Not only did I make it personally, I put out a
news release and said, ``Do not cancel your registration drive.
We will go there''--and we have done it for the past year in
places, and folks have called us on the offer and said,
``Absolutely, we would love for you to do that and come and do
the voter registration drive for us.''
Chairman Durbin. That was not required by law, though, was
it?
Mr. Ertel. I wish that all supervisors in the State would
do that, and I think they will. I really do, because, I mean, I
know every single supervisor of elections in the State of
Florida, and I know that they are all very dedicated to the
process.
Chairman Durbin. Was that required by law? That was my
question.
Mr. Ertel. No. I mean, it is also not required by law for a
supervisor of elections to show up to work every single day,
but we do because we are dedicated and we love the process.
Chairman Durbin. So the point I am trying to get to is when
we are talking about protecting people's rights and we want
some guarantee of consistency and uniformity, your overture to
the League of Women Voters, as noble as it was, is not required
of every supervisor of elections. Is that true?
Mr. Ertel. To me, writing the League of Women Voters and
offering that was not because of Florida law. It is because of
my----
Chairman Durbin. That is the point.
Mr. Ertel [continuing]. Dedication to the process.
Chairman Durbin. That is my point. I thank you for that
very much.
Let me turn over the questioning to my colleague Senator
Nelson.
Senator Nelson. Thank you, Mr. Chairman.
Ms. McFall, you noted that there was no consultation
between the Florida Legislature and the supervisors of
elections on the changes to the voting laws, and I am quoting
from your testimony, ``It was almost as if the deal was done.''
This has been reiterated in the press by other supervisors of
elections and has been reiterated in other statements submitted
for the record.
So no one reached out to you in getting your opinion when
this legislation was being considered?
Ms. McFall. No one. Not even the Volusia delegation, which
I have a great relationship with. That is one of the first
times I have not heard from anyone.
Senator Nelson. It is my understanding that on early
voting, which, as I noted in my earlier comments, because of
the horrible experience that we had in 2000, in order to make
it easier to vote early voting was enacted and made it easier
for seniors, for single moms, you go down the list, for people
who are renters, for people who have to work long hours,
sometimes two jobs to make ends meet, and they could then have
a day where they could find it convenient to go and vote. And
it is my understanding that allowed 96 hours of early voting.
Am I correct that this new law under the discretion of the
individual supervisors of elections can cut that down to 48
hours, one-half?
Ms. McFall. Yes. Yes, the minimum allowed is 6 hours per
day.
Senator Nelson. You talked in your statement about the
impact of the law on the actual administration of elections.
How much do you expect to spend beyond what you normally spend
in order to comply with this new law?
Ms. McFall. I am either going to have to pretty much double
my early voting staff or, again, as I mentioned earlier, pay
the overtime. Right now I have five sites, one in each county
commission district. Each site costs about $15,000 to keep
open--to open, keep open, and close. At my office it is a
little less, so I am guessing that is going to probably get up
to about the $25,000 range per site per election.
Senator Nelson. You had written a guest column for one of
the newspapers last year when this thing started happening in
the press about the Volusia County High School teacher, and you
said you saw the new law as so egregious that you felt you had
to bring it to the attention of interested citizens. And that
is not easy for you. You are going against your particular
preference of a political party. What aspects did you find the
most egregious?
Ms. McFall. Well, the most egregious I found was it was
done in the name of voter fraud, but I found that I was turning
down Republican club presidents, I could not give them
applications; Democratic club presidents. I was turning down
the NAACP. I was turning--coming in to get applications. They
had to be registered as a third party in order to receive these
applications.
Then if they went and registered as a third party, came
back, then I had to spend 2 days, my staff, putting their
number on the back of the application. I mean, this is somewhat
demeaning to people I have known for 30 years, that we had to
resort to sitting in a little room putting numbers on the back
of the applications. It had to be their number. And then they
had to come back in and see me or my registration division when
they had their applications to make sure they got them in
within the 48 hours. And then the coup de grace is I have to
turn them in because they did not comply. That is what is so
heartfelt about this. You know these people. They are your
constituents. They are good people. And you had to turn them
in.
Senator Nelson. And on the previous question, if my
mathematics is correct, you are talking about per election it
is at least going to cost you $50,000 more.
Ms. McFall. I would say easy.
Senator Nelson. In your testimony, you also suggest that
the Division of Elections is going to receive double the amount
of provisional ballots because of this new law. Based on your
experience, what are the key factors that lead you to believe
that the number will be so high?
Ms. McFall. Well, I mentioned earlier that Volusia County
has the five universities in the county. The most active campus
is Bethune Cookman. They literally have a march, a festival on
campus on a certain day during early voting, and they march the
2\1/2\ miles to early voting in a block. Two to three thousand
young people are marching to go vote. Seventy percent of those
kids have something wrong with their voter registration. Maybe
they moved from one dorm to the next, something like that.
So you could see where it is going to be even worse because
if it is an out-of-state--if someone moves from Broward to
Volusia, that is now going to be a provisional ballot. We are
planning on doubling our provisionals because of this.
Senator Nelson. You testified that fraud is not a
legitimate reason for changing the law, and I am curious. It
seems like that Florida was very progressive in having a
Florida voter registration database that is available to the
public. Tell us about this database and how that helps you as a
supervisor avoid fraud.
Ms. McFall. On election day or early voting, anywhere else
I can pull up FVRS, Florida Voter Registration System, as can
Mr. Ertel, and see who is registered anywhere in the State.
Anywhere in the State. So if someone moved from Miami-Dade to
Volusia, we could call Miami-Dade instantly and tell them this
person now lives in Volusia. And that is what is done. That is
the process.
Not only that, as part of the database creation, we have a
closer relationship with DMV, we have a closer relationship
with Vital Statistics, if a person passes away. It is a much,
much closer--we are talking to each other, the governmental
agencies, and that is a good thing.
Senator Nelson. And that database was paid for by Florida
taxpayer dollars.
Ms. McFall. Actually, most of it was HAVA dollars, Help
America Vote Act, the Federal program.
Senator Nelson. And it is to your credit that you
interrelate all of that.
Mr. Chairman, I do not want to overstate my time, so I
will----
Chairman Durbin. Take the time that you need, Senator
Nelson. I will ask a question or two if you would like to come
back.
Senator Nelson. Please.
Chairman Durbin. Supervisor McFall, I am really struck by
this teacher who clearly was trying to do the right thing. You
say she was a woman who waited a couple weeks after the voter
registrations to turn them in.
Ms. McFall. Right.
Chairman Durbin. Which I assume under the old law would
have been perfectly fine.
Ms. McFall. She would have had 14 days under the old law.
Chairman Durbin. And because she waited, she was out of
compliance with the new law, and you were forced to submit her
name. To whom did you submit her name?
Ms. McFall. The Secretary of State.
Chairman Durbin. Do you know what happened after that?
Ms. McFall. Because of the publicity, I am afraid, he sent
her a warning letter, and the letter was very patronizing,
because they sent me a copy of it. And it was a slap on the
wrist, but do not ever do it again, is exactly what he said in
that letter.
Chairman Durbin. What happened to those registration forms?
Ms. McFall. We enter them. By law, we are required to enter
the forms. And I will tell you, Senator, if that person, if
Jill, the teacher, were not so honest and came in and just put
them on the counter, we would not have known who handed those
in. Not only that, she mailed them in with her return address
on the envelope. If she wanted to commit fraud, she did not
have to put a return address on it. Plus, she called my office
to check to see if we got them. So, I mean, there was no intent
whatsoever.
Chairman Durbin. It seemed like a good-faith effort on her
part----
Ms. McFall. I truly believe that.
Chairman Durbin.--to do something which most of us would
applaud.
Ms. McFall. Right.
Chairman Durbin. Supervisor Ertel says the problem in
Volusia County is you should be deputizing school principals.
Ms. McFall. Well, I am glad you brought that up. My
principals do not necessarily want that responsibility. Their
superintendent and their school board said, ``We do not want to
take that liability,'' because there is that $1,000 fine. So a
typical high school might have 100 teachers, 150 employees. If
they are out doing voter registration, that principal is now
responsible.
Chairman Durbin. Do you think that people who register
should have a genuine concern about the penalties under the new
law if they register improperly?
Ms. McFall. Oh, I would think so, yes.
Chairman Durbin. Would you consider that perhaps not just a
concern but perhaps a fear?
Ms. McFall. Certainly, especially for teachers who are
working paycheck to paycheck.
Chairman Durbin. Supervisor Ertel, is Supervisor McFall
guilty of fear-mongering?
Mr. Ertel. I think Supervisor McFall is doing everything in
her county the way that she can do it. What she is not doing is
trying to scare people into believing that their vote is not
going to count.
I want to make one small correction. Our principals are not
under the third-party voter registration rule. They are
actually deputy supervisors of elections, so they do not have
the onus of any sort of fine or anything like that.
So, no, I do not believe she is fear-mongering. What I do
hear, though, throughout the country and the cold facts are, in
every single election at least half of the candidates lose, and
not all of them want to blame their own campaign. So what they
do is they look at the process. And I am not talking one side
or another. I am talking every election, all sides. So they
want to take a look at the process. So I think that as election
supervisors and election administrators, it is our role to make
sure that the process is as transparent and as opportunity-
based as possible.
Ms. McFall. Senator, if I may?
Chairman Durbin. Certainly.
Ms. McFall. We have to ask ourselves the question: Why do
we have to deputize principals? This is a bad law. So why do we
have to circumvent ourselves and try and make a bad law a good
law? It is a bad law.
Mr. Ertel. And if I might add, Senator?
Chairman Durbin. Of course.
Mr. Ertel. I agree that that portion of the law--if they do
a rewrite of the law, I hope that they exempt the teachers and
the principals from that because that is--you know, our high
school juniors and seniors go there 5 days a week. They should
be able to register to vote there.
Chairman Durbin. How about the League of Women Voters?
Would you exempt them, too?
Mr. Ertel. We work hand in hand with our League of Women
Voters.
Chairman Durbin. I am asking if you would exempt them in
the law.
[Laughter.]
Chairman Durbin. Mr. Smathers, there have been charges here
of fear-mongering and misstating the impact of this law. You
have been around long enough--and we are about the same age
group here--to recall some of the early days in our lives when
voting was truly suspect and under restrictions and people
faced obstacles that American citizens should not have to face.
Is it fear-mongering to be mindful of that and to suggest that
any new law should be viewed in that same context?
Mr. Smathers. Sir, I think that our past is well known, and
I would not agree in part with the statement that there is
fear-mongering.
First of all, I would like to congratulate the supervisor
for what he has done in Orange County and also the supervisor
for what she has done in Volusia County. In my contact with the
supervisors of elections----
Chairman Durbin. Seminole, I believe.
Mr. Smathers. Excuse me. I apologize. I was thinking of
Bill Cowles.
Chairman Durbin. Here I am correcting him, and I am from
Illinois. What do I know?
Mr. Smathers. But I also talked with Bill Cowles, but
several points.
First of all--and I said it in my statement, and I think
everybody--at the local level, the supervisors of elections,
the vast majority, are leaders in the efforts to expand voter
registration opportunities as well as ensure that every ballot
is counted. And that is not the question, I think, before the
Committee. The question before the Committee is the State law,
and as Ann said, you know, the problem is that the State law is
bad and the supervisors of elections are having to trip all
over each other so that they will not fall into the problems.
I was speaking to a Republican of a very large county, and
as I was talking to him, he said, ``Just yesterday a black
church wanted to have a voter registration drive, and I went
out there personally to ensure that it could be done and they
would not have to fall under the law.''
So what is happening, because they are eliminating the
efforts of private volunteer registration organizations, the
burden is not falling on the supervisor of elections, which is
contrary to what we want to see. And the question would be,
while that supervisor in that large county can help one church,
what happens right before the general election when there are
20 or 50 churches and other organizations who want to go out
and register voters? They cannot send their overpressed people
who are trying to prepare for the election out to help these
volunteer organizations. They just do not have the manpower.
And it is expensive in these times when local governments are
so strapped for money.
So while we do have a great law, this is a regression, and
the issue, I think, is how we are regressing. I am sorry. I
went too far.
Chairman Durbin. No, you did not. I am glad you gave a
complete answer on that.
Here is what I draw from the first panel. No one is
acknowledging any evidence of voter fraud that led to these
changes, No. 1.
No. 2, it will impose an additional hardship on
supervisors, in your case, Supervisor McFall, up to $50,000 a
year that your office will have to absorb, taxpayers will have
to absorb.
It also creates at least some hardship on voters and
potential voters, restricting the opportunity for early
voting--as we say, the ``opportunity business''--restricting
the opportunity to 8 days, a situation where you have limited
locations. There are many locations Supervisor McFall noted,
which all sounded reasonable to me, good places to register
people to vote, which you cannot do under the current
situation. And this third-party registration issue where it
takes an extra effort by the supervisor of elections to find a
way, as Mr. Smathers just said, around the law's provision to
allow people to in good faith register those who are 100
percent legal and eligible to vote. That is what it boils down
to.
So a new, unreasonable hardship, from my point of view, is
being created on voters in the State of Florida. I do not see
why we would do that in this day and age. There are people
literally fighting and dying as we sit here for the right to
vote in countries like Syria, and we are finding ways to
restrict the right to vote? That to me is not consistent with
where we ought to be going.
[Applause.]
Chairman Durbin. Senator Nelson.
Senator Nelson. Mr. Chairman, I know you need to get on to
the second panel. I would just like, if I could, just one line
of questioning.
Mr. Ertel, on page 2 of your testimony, under discussing
early voting, you say, ``Based on my data from this very
election. . .'' What is the source of that data?
Mr. Ertel. The data of who has cast a ballot.
Senator Nelson. And you are talking about this
Presidential Republican primary election?
Mr. Ertel. Yes, Senator.
Senator Nelson. So how many days of early voting is your
databased on?
Mr. Ertel. It is based on the first 5 days. I had to turn
this in by yesterday, so it is based on the first 5 days of
early voting.
Senator Nelson. OK. I have been able to read some of the
testimony of the second panel, and I think what you are going
to see painted is a picture showing that certain groups, in
fact, are being excluded by constricting the days, what is 96
hours down to half, 48 hours, as well as constricting certain
days to vote, as well as the out-of-county-residence
requirement of identification, is going to exclude certain
people. So if Supervisor Ertel is basing his testimony on 5
days of present voting in a Republican primary where there is a
limited turnout, then I think the record should reflect that.
Mr. Ertel. And, Senator, if I may? Thank you, sir. I just
did the query based on what we saw on the turnout among the
African-American community and the Hispanic community. To me it
does not matter what the party affiliation is. So the facts are
about the African-American and the Hispanic community,
immaterial of party affiliation.
Chairman Durbin. I, too, have reviewed the testimony in the
next panel, and I think you will find that there is a
disproportionate turnout on the last Sunday from African-
Americans and Hispanics, and, clearly, you could not have
calculated the last Sunday because you are only 5 days into
this. So we will wait and bring in all the testimony, but let
me at this point bring this panel to a close and give special
thanks to all three of you, Supervisor McFall, Supervisor
Ertel, and Mr. Smathers, for joining us, and we will now ask
the second panel to come forward. Thank you.
[Applause.]
Chairman Durbin. Please do not get comfortable. If you
would not mind raising your right hand, please. Do you affirm
the testimony you are about to give will be the truth, the
whole truth, and nothing but the truth, so help you God?
Mr. Parks. I do.
Ms. Pemberton. I do.
Mr. Smith. I do.
Mr. Wilkes. I do.
Chairman Durbin. Thank you. The record should reflect that
all four witnesses answered in the affirmative.
Our first witness is Daniel Smith. He is a professor of
political science at the University of Florida. Dr. Smith has
published more than 40 scholarly articles, several books on
subjects like direct democracy, campaign financing, and voting
rights. He received his Ph.D. in political science from the
University of Wisconsin-Madison--go, Badgers--and his B.A. from
Penn State University.
Dr. Smith, the floor is yours.
STATEMENT OF DANIEL A. SMITH, PH.D., PROFESSOR OF POLITICAL
SCIENCE, UNIVERSITY OF FLORIDA, GAINESVILLE, FLORIDA
Mr. Smith. Chairman Durbin, Senator Nelson, distinguished
guests, and the rest of the audience, thank you for inviting me
to testify today. My name is Daniel Smith. I am professor of
political science at the University of Florida. My collaborator
on this project, Professor Michael Herron at Dartmouth College,
could not be here today.
I come here today as a scholar, not as a partisan or a
citizen activist. In my opinion, House Bill 1355 will likely
hinder voter participation in Florida.
First, with respect to early voting, the law reduces the
number of days, as we have heard, from 14 to 8 and eliminates
the final Sunday voting immediately preceding election day. The
law also allows elections supervisors to reduce from a required
96 hours to as few as 48 hours of early voting. That is how
many hours they must be open--48 hours.
The effects are real. In this current election,
Presidential preference primary, there are 6 fewer days of
early voting under the 8-day period as opposed to the 14-day
period during the Presidential primary in 2008. That is a drop
in net of early voting hours of about 30 percent across the 67
counties.
Early voting is incredibly popular in Florida. In the 2008
general election, more than half of the 8.3 million Floridians
who voted did so prior to election day, including some 2.6
million voters who cast early in-person ballots. Based on our
analysis of early voting patterns from the 2008 general
election, H.B. 1355 is likely to have a differential effect on
various demographic groups. This first slide shows the
percentage of racial and ethnic groups that did not and that
did vote early in 2008. What you can see and what is notable is
not only the large share of early voters who are African-
American, about a fourth of all early voters were African-
American, but that more blacks cast early ballots in 2008 than
actually did on election day in the 2008 general election:
575,724 as opposed to 520,031.
The next figure plots the composition of the early voting
electorate by day by race and ethnicity over time from October
20 through November 2, 2008. It is clear when you look across
the lines that the fraction of whites drops on the first Sunday
and the second Sunday as a proportion of the early voting
electorate, and that the percentage of African-Americans and
Latinos, represented by the triangle and the dot, spike up on
those two Sundays. African-Americans accounted for 30 percent
of early voters on the final Sunday, even though they comprise
only 13 percent of the statewide electorate. Hispanic voters,
who comprise just 11 percent of the statewide electorate in
2008, accounted for 20 percent of early voters on that final
Sunday.
The next slide shows clear age differences with respect to
who voted early in 2008. Older voters tended to vote earlier
during the period of the first 5 days which have been now
lopped off. Many of our seniors like to get their voting done
early in those first 5 days. But what you see is the incredible
spike up on the Friday and Saturday and Sunday relative to
their population of younger voters, those under 22, and they
disproportionately voted on that final Sunday. If you look at
the squares, those who are under 22 made up a much higher
proportion of those who voted on that final day relative to
their small numbers compared to the seniors and those between
23 and 65.
The next slide shows that voters who registered in 2008--we
had a massive registration increase in 2008 and 2007, but this
just looks at 2008--they were more likely to vote in the final
week, including the final Sunday, than those who registered
before 2008. In short, the law has reduced the number of early
voting days, has cut in half the required number of voting
hours, and has eliminated early voting on the final Sunday
before election day.
Second, the law potentially dampens the ability of
Floridians to register to vote, as we have already heard, and
places burdens on these third-party entities, individuals and
groups such as the League of Women Voters. And if you actually
compare the Secretary of State's data from 2007 and 2011--I
would do it for every month, but they do not have the data from
November 2007--just look at December 2007 registration rates
compared to December 2011 registration rates. It is almost a
50-percent drop of the number of valid registrations that were
put in. The statistic on there, the 90.8 percent versus the
89.6 percent, indicates that actually under House Bill 1355
there were less valid registrations submitted even though the
League of Women Voters and other third-party entities are not
involved. They are clearly not the reason why 10 percent,
roughly, of all submitted forms are not valid.
The last slide--and this goes directly to Supervisor
Ertel's comments--looks at provisional ballots. The dirty
little secret in Florida is that most provisional ballots do
not count. In the 2008 general election, less than half of all
provisional ballots cast were actually deemed to be valid:
35,635 provisional ballots were cast, local canvassing boards
after the election only validated 17,312 ballots.
There is tremendous variation across the counties. Some,
like Hillsborough County here, have a fairly high percentage of
provisional ballots cast, around 60 percent. Others, however,
reject disproportionately the number of provisional ballots
cast. For example, only 6.3 percent of provisional ballots cast
in Broward County in the 2008 general election were deemed to
be valid by the canvassing board. Thousands of votes were not
counted. And only 227 of the 740 provisional ballots cast in
Mr. Ertel's Seminole County, 30.7 percent were actually deemed
to be valid by his canvassing board. There are huge variations.
Some of our counties, mostly small, have 100-percent validation
rates of provisional ballots. As the other supervisor of
elections, Ms. McFall, said, we are going to probably see a
rise in provisional ballots.
To conclude, in our opinion the new law will likely have a
negative differential effect on early voting across many
demographic groups in Florida, including racial and ethnic
minorities, as well as youth. The law appears to be hindering
third-party registration efforts and does not help to reduce
the percentage of invalid registration forms that are
submitted. And it may cause the number of provisional ballots,
most of which currently go uncounted, to increase. Overall,
then, a case can be made for Congressional oversight on H.B.
1355 as it places considerable burdens on the right of citizens
to vote in the Sunshine State.
We thank you again for the opportunity to testify, and I
look forward to answering any questions that you may have.
[The prepared statement of Mr. Smith appears as a
submission for the record.]
Chairman Durbin. Thanks, Professor Smith.
Mr. Daryl Parks is here to testify. He is co-founder and
managing partner of the law firm of Parks & Crump in
Tallahassee, currently serving as president of the National Bar
Association. He has held leadership positions, served on boards
of a number of organizations. He received a bachelor's degree
in political science and economics from Florida A&M University
where he was student body president and founded the National
Coalition of Black College Student Governments, received his
law degree from Florida State University.
Mr. Parks, please proceed.
STATEMENT OF DARYL D. PARKS, PRESIDENT, NATIONAL BAR
ASSOCIATION, TALLAHASSEE, FLORIDA
Mr. Parks. Thank you very much. My name is Daryl Parks. I
am the president of the National Bar Association, which is the
largest association dedicated toward the advancement of black
attorneys and judges in the Nation, enjoying a very strong
history of civil rights and voter empowerment advocacy. I want
to thank Senators Durbin and Nelson and the entire Senate
Judiciary Subcommittee for convening this important forum to
examine the alarming consequences of Florida's law, H.B. 1355,
which restricts early voting and overly burdens third-party
groups in their efforts to help register people to vote.
In light of the many years of working in Florida and my
work with the NBA, I greatly appreciate this opportunity to
comment upon the negative effect H.B. 1355 will have upon the
right to vote and, in particular, the disparate impact it will
have upon the voting rights of members of the African-American
community.
The proliferation of oppressive voting laws sweeping this
Nation by many accounts is just as insidious as the Jim Crow
laws of the 1950's, if not worse. Nearly 50 years after Bloody
Sunday in 1965 when Alabama Governor George Wallace sicced
State troopers on civil rights archers attempting to cross the
Edmund Pettus Bridge, we are once again fighting attacks
against our fundamental right to vote.
The statistics have been well cited. According to the
recent study released by the Brennan Center, over 5 million
voters could be kept from polls due to new voting laws.
Florida's laws are particularly troubling because, as we will
hear more from my other colleagues on this panel, these new
restrictions are clearly targeted against certain communities.
These communities include mainly African-Americans and Latinos,
but also students, people with disabilities, the elderly, and
other minority populations. Today I will focus primarily on the
impact upon the African-American community.
The significant and projected impact of this legislation
cannot be emphasized enough. These restrictions will
drastically change the electoral landscape. Black and Latino
voters today make up 20 percent of the vote nationwide and are
projected to rise to 45 percent by 2050. This is a critical
swing vote in many States, and it is through this lens that we
must consider the utility and impact of H.B. 1355 in a
Presidential swing State like Florida.
H.B. 1355's impact on African-American community.
Restrictions burdening third-party groups helping people
register to vote. Statistics. The improvements in voter
registration seen in the African-American community were in
large part a result of focused efforts by third-party voter
registration groups to register new and underrepresented
classes of voters.
In Florida, the U.S. Census Bureau data from the 2004 to
2008 election cycle show that African-Americans relied on
third-party registration drives more than white voters and that
minority reliance on such drives is greater in Florida than
elsewhere in the country. In fact, African-American citizens in
Florida are more than twice as likely as white voters to
register to vote through private drives.
Some of the data is startling. In 2004, while 6.6 percent
of non-Hispanic whites in Florida indicated they registered
through private drives, 17.4 percent of African-Americans and
18.9 percent of Hispanic voters in Florida registered in this
manner. In 2008, while 6.3 percent of non-Hispanic white
registered voters in Florida were registered through drives,
12.7 percent of black voters and 12.1 percent of Hispanic
registered voters and 6.3 percent of white voters were
registered through drives.
Restrictions limiting early voting. Restricting early
voting opportunities will also have a significant negative
effect on the African-American community voting. In the 2008
general election, not only did African-Americans cast more
early in-person ballots than they cast on election day, but
African-Americans accounted for a much greater proportion of
the early voting electorate than they did on election day.
This is why H.B. 1355 is particularly alarming. As my
colleague Daniel Smith has just stated, African-Americans only
make up 13 percent of the population, but they made up 22
percent of the actual voting electorate, with a high percentage
voting during the early voting period. This is because of
programs like Souls to Polls where our efforts in the African-
American community is to encourage participation. H.B. 1355's
restriction preventing voting on the Sunday before the election
is a direct effort to undermine such programs.
Historically, places of worship within the African-American
community allowed their members to travel to voting sites from
church. In an effort to encourage voting within their
community, church leadership would organize different
initiatives called ``Souls to Polls'' within their church that
would emphasize the importance of exercising the right to vote
in sermons, register youth membership to vote, and encourage
them to participate in the electoral process, invite local
leaders to speak to their membership about the importance of
voting, and more importantly, these efforts would culminate on
the Sunday before the election that would organize bus trips
and/or car pools to the polls on the Sunday before the
election. In addition, when resources were available, churches
would provide transportation for non-members to voting polls as
well.
Statistical evidence shows that African-Americans
participated in voting drives of this nature in proportions far
greater than whites. In fact, 33.2 percent of those who voted
early on the Sunday before election day during Florida's 2008
general election were black, whereas blacks only constituted
13.4 percent of all early voters for all voting days.
In conclusion, the 2010 elections reinforced what we have
known since November 2000. Our system of election
administration needs reform, and efforts to deny minority
voters full access to the franchise persists. Restrictions on
early voting and voter registration do little to secure our
electoral system, yet a lot to create more barriers and
problems for elderly voters. The National Bar Association will
continue to aggressively protect the right to vote for all
voters and work to ensure the enforcement of our Nation's
voting rights laws. We urge State lawmakers to focus on passing
legislation that addresses real problems such as deceptive
practices or compromises the voter registration system instead
of disregarding or undermining the very right that so many have
fought and died for.
Thank you.
[The prepared statement of Mr. Parks appears as a
submission for the record.]
Chairman Durbin. Thank you, Mr. Parks.
Brent Wilkes is the national executive director for the
League of United Latin American Citizens. He has worked in
various capacities for LULAC since 1988 and assumed the newly
created position of national executive director in 1997. He
currently serves as Chair of the Civil Rights Committee of the
National Hispanic Leadership Agenda, graduated from Dartmouth
with a major in government and philosophy.
The floor is yours.
STATEMENT OF BRENT A. WILKES, NATIONAL EXECUTIVE DIRECTOR,
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, WASHINGTON, DC
Mr. Wilkes. Thank you, Chairman Durbin, Senator Nelson, and
members of the Judiciary Committee for bringing this important
issue to our attention and allowing us to testify today.
My name is Brent Wilkes, and I am the national executive
director of the League of United Latin American Citizens. We
were founded in 1929, and we are known as the largest and
oldest Hispanic membership organization in the United States.
LULAC is organized into more than 900 councils, local
grassroots councils. We have a presence in Hispanic communities
all across the country, including 15 longstanding LULAC
councils here in Florida.
The mission of LULAC is to advance the economic condition,
educational attainment, political influence, health, and civil
rights of the Hispanic population of the United States.
Our volunteer members have been active in Florida for over
50 years, and many can trace their roots in this State back to
when it was still a Spanish possession. Matilda Garcia, who is
our former State director, is right here, and she has been with
us, first joined LULAC in the 1950's, but her family can trace
its roots back to the 1880's when they were one of just 17
families that settled here in Tampa.
Many Americans think that most Latinos just arrived in the
last decade or two, but the truth is that many of our members
have never crossed the border. The border crossed them.
These members have for decades worked with a broad
coalition of grassroots organizations to improve the quality of
life for Latinos, African-Americans, Native Americans, Asian
Americans, women, seniors, and youth to ensure that the
communities that we represent can fully participate in the
democratic process and live the American dream.
LULAC in Florida has worked with the NAACP, the ACLU, the
League of Women Voters, Rainbow/PUSH, Rock the Vote, Mi Familia
Vota, State Voices of Florida, Democracia, NCLR, the Florida
Public Interest Group Education Fund, and many, many other
groups to help register and bring to the polls American
citizens that have traditionally been underrepresented and in
many cases deliberately excluded from Florida's democratic
process. Together these organizations work to register tens of
thousands of voters across the State that the State of Florida
has failed to register or in many cases has actually purged
from the voter registration rolls without explanation.
Unfortunately, Florida's H.B. 1355 is really a transparent
attempt to discourage Latino, African-American, senior, youth,
and other vulnerable populations in Florida from registering to
vote and to suppress those populations from participating in
Florida's democratic process.
In the words of Reverend Charles Mckenzie of Rainbow/PUSH
and a resident of Tampa, the law is a ``conspicuous and
egregious assault on the right of all Floridians to vote.''
Denise Velazquez Marrero, who is the executive director of
State Voices of Florida, calls it ``legislative voter
suppression.''
And Howard Simon of the ACLU states that with the passage
of H.B. 1355 and bills like it, Florida has now become the
capital of voter suppression and voter disenfranchisement in
the United States.
The provisions of this law are unnecessary, restrictive,
and punitive. None of them address the few instances of voter
irregularities that have taken place in Florida. In our
opinion, they will actually make it much more likely that
inadvertent mistakes will be made because of the unrealistic
and unnecessary deadlines the bill requires for filing voter
cards. In fact, the law's only effect would be to narrow the
civic engagement of Latinos, African-Americans, youth, seniors,
and vulnerable populations.
By requiring third-party voter registration organizations
to submit voter registration applications within 48 hours of
receipt instead of the 10 days provided in the previous law and
imposing a fine of $50 for each failure to comply that could
lead to fines as high as $1,000, the authors of H.B. 1355
without a doubt have sought to punish the broad coalition of
organizations engaged in voter registration in Florida.
The authors of H.B. 1355 had to be aware of the fact that
more than one-third of voters that were registered through
third-party drives in 2008 were racial minorities, and they
knew that this provision in H.B. 1355 would greatly discourage
our volunteers and staff from registering voters in the State.
Just as alarming, the new deadline actually makes it much more
likely that mistakes will be made on voter forms because we
will not have the time to do our due diligence and ensure that
the forms are completed completely and accurately.
When LULAC registers voters, we have them checked by
supervisors and entered into a database designed to catch the
mistakes on the forms. This process takes time, which we no
longer have thanks to H.B. 1355.
There is also great confusion on how the 48 hours are to be
calculated. Do applications filed after hours, on weekends, and
Federal holidays count? I just learned this morning that
Florida counted the Martin Luther King Jr Holiday as part of
the 48 hours to submit the voter forms. What an incredible,
shameful act to take the holiday in honor of a man that did
more than any other American to champion the cause of
minorities and disenfranchised and use it as a weapon to attack
those of us who are attempting to follow in his footsteps and
realize his mission.
We believe without question that this provision is a
retrogressive policy in violation of the Voting Rights Act and
creates a significant barrier for racial and language minority
voters in Florida who are protected under the Voting Rights
Act.
Second, the reduction of the number of days for early
voting from 18 days to 8 days is a transparent strategy to
impact minority voting. I know one of your previous panelists
mentioned that he did not think this would impact minority
voting, but the loss of Sunday voting in particular was clearly
done to end the tradition of Latino and African-American voters
from going to the polls after church. As Ben Jealous, the
president of the NAACP has said, ``Latino and African-American
pastors in Florida have encouraged their congregations to
discharge their civic duty after they took care of their
spiritual responsibility.'' H.B. 1355 makes that impossible.
Third, Florida families, especially minority families, have
been hit hard by the foreclosure crisis, and many families
losing their homes have had to move across county boundaries.
H.B. 1355 adds insult to injury by preventing and making it
very likely that these families will not be allowed to vote
because they are going to go to the polls--they are used to
being able to change their address right there at the polls--
and they are going to have to file a provisional ballot, which
we just heard probably will not be counted.
The Latino and African-American communities in Florida are
diverse and growing in number every election cycle, yet our
voter registration rates do not reflect this growth. Out of the
2.1 million Latinos eligible to vote in Florida, only 1 million
are registered to vote. This law will hurt the mission of civic
organizations like LULAC and many others that are part of our
broad coalition, where part of our mission is to engage
Hispanics and African-Americans in the democratic process. The
restrictions of the law place an unnecessary burden,
unreasonable burden on voter registration initiatives to
register folks who are non-English proficient and whose
information must still be verified before submitting the voter
registration information to the State.
To the political operatives who helped craft this bill,
they are just looking at the numbers, and they are just trying
to see how they can help their political allies, the folks that
helped pass the bill, get elected. But the fact is for those of
us who represent minority communities and the disenfranchised,
we have fought for many years for these rights. We have bled.
Early this morning there was a press conference in which we
talked about how people have lost their lives fighting to
preserve these rights. To us it is not just numbers; it is not
just partisan politics trying to get people elected. It is
realizing the American dream and making sure we preserve the
promise of America, and we implore you to try to do all that
you can to protect that right.
Thank you.
[The prepared statement of Mr. Wilkes appears as a
submission for the record.]
Chairman Durbin. Thank you, Mr. Wilkes.
Sarah Pemberton is a senior majoring in paralegal studies
at St. Petersburg College in St. Petersburg, Florida. After
graduating, she plans to attend law school and pursue a career
in intellectual property law. She currently serves as the State
president of the Florida College System Student Government
Association. For more than 50 years, this association has
represented Florida's 1.3 million community and junior college
students at 28 campuses throughout the State.
Ms. Pemberton, please proceed.
STATEMENT OF SARAH PEMBERTON, PRESIDENT, FLORIDA COLLEGE SYSTEM
STUDENT GOVERNMENT ASSOCIATION, CLEARWATER, FLORIDA
Ms. Pemberton. Thank you, Chairman Durbin, Senator Nelson,
other members of the Subcommittee who could not be here today,
and guests. I am honored to have the opportunity to speak on
behalf of the students of the State of Florida.
A top priority of the Florida College System Student
Government Association is to ensure that our students are
actively engaged in their civic duties. One of the hallmarks of
this engagement is voting. The task for FCSSGA is not easy, as
it is no secret that students are among the most
underrepresented classes of people at the polls. H.B. 1355
contains four provisions that present obstacles to voter access
among this class. They include provisions on early voting,
provisional ballots, third-party voter registration, and State
and local primaries. I will address each of these provisions
and obstacles they present to students. In the remaining time,
I will address Senate Bill 516 from this legislative session
that poses a solution to the inherent problems with House Bill
1355.
First, to address early voting. H.B. 1355 includes a
provision that cuts early voter days from 14 to 8, discontinues
Sunday voting. Much of this we have already heard today. These
new provisions will hit the students hard because the lives of
these students are hectic and busy. In the Florida College
System, we can characterize our students by CCC, or a card-to-
class-to-car experience.
One example of the type of student who will be impacted by
this law is Jane. Jane is a 28-year-old female student in my
program. She works a full-time job and is also a full-time
student. Her day begins by going to work at 9:00, she leaves at
5:00, and in the 2 hours before class, she is prepping and
commuting to go to school. From there she is in the classroom
7:00 to 9:40. She will be directly impacted by the cut of early
voter days because she has no time in the regular days to
ensure that she can vote. Saturday and Sunday voting is
essential to students like Jane.
Next to address provisional ballots. House Bill 1355
provides that a voter may no longer change their address at a
polling place by filling out an affirmation agreement. The
State of Florida has a unique provision in place that allows
students who attend State or community college to seamlessly
transfer to a university in the State of Florida with a full
transfer of all credits. This agreement between State colleges
and universities is an incentive for our students to attend
community college first where they will get the tools to be
successful in university.
One of the side effects of this agreement is that students
will often change their county of residence after completing
their degree at a State college to attend a university in this
State. The 2008 U.S. Elections Assistance Commission survey
cited 51 percent of provisional ballots were not counted.
Students who were participating in the democratic process are
less likely to participate knowing that their vote has a 51-
percent chance of not counting.
The next provision I would like to add is third-party voter
registration. One of the numerous provisions H.B. 1355 requires
that third-party voter registration organizations are required
to be registered and submit required information. In the event
that this provision is not met, many, many heavy fined will be
levied against them.
Many of the groups that used to participate in voter drives
are no longer able to do this because they are not able to risk
the fines. This is especially true for student organizations
like mine. College campuses' Student Government Associations
are known for having voter registration drives on their
campuses, and we are no longer able to do those things because
we as students cannot risk those fines. As a result of this,
many students who would normally discover the political process
through their time in college will not be engaged in the same
way that they have been in years past. We will see a decline in
the number of students who are registered to vote, who will as
a result not fulfill not only their civic right but their civic
duty.
The last provision I would like to address is State and
local primaries. The new provision requires it to be 12 weeks
before the general election. This is a seemingly harmless
change; however, many of our college students are not going to
be back in their universities until the week after the primary
will be held this year. This effectively eliminates an entire
class of people from voting in the primary election.
We understand that problem spotting is easy, so we looked
to find a solution to the inherent problems of House Bill 1355.
That solution came to us in the form of Senate Bill 516. Under
this new piece of legislation, there would be more available
places for early voting, including college campuses. The
disenfranchised would have a new opportunity to get involved
right here on their campuses. Additionally, the number of early
voting days and hours would be extended by this legislation.
This small but vital step in counteracting the harm of H.B.
1355 is imperative.
The students of the State of Florida believe that the right
to vote is fundamental to our style of government. We strongly
urge the Committee when evaluating claims that this law makes
it harder for tens of thousands of elderly, disabled, minority,
young, rural, and low-income Floridians to register and
exercise their right to vote to err on the side of American
values.
[The prepared statement of Ms. Pemberton appears as a
submission for the record.]
Chairman Durbin. Thank you, Ms. Pemberton. Let me ask a few
questions----
[Applause.]
Chairman Durbin. Professor Smith, we are talking about
voting on a day other than election day, and there are actually
at least two approaches that come to mind. One we have talked
about at great length--early voting. And there is another
approach, of course, which involves absentee voting. What have
you found relative to those who use each opportunity: those
more likely to engage in early voting as opposed to those more
likely to engage in absentee voting?
Mr. Smith. Thank you, Mr. Chairman. This is a not-well-kept
secret by politicos in Florida about which political party
tends to vote early versus have their supporters vote absentee.
The Republican Party of Florida has been very successful, and
is quite admirable in terms of their efforts, to reach out to
their supporters, having them request absentee ballots, and
having them sent in. The Democratic Party, for whatever its
reason, has chosen not to use that strategy. There is clearly a
difference in terms of the half of the population that was
registered to vote in 2008 in the general election that voted
early as opposed to absentee. And it is almost opposite in
terms of Democrats disproportionately voting early, Republicans
disproportionately voting absentee.
What I should note is that H.B. 1355 does nothing to affect
anything with respect to voting early through an absentee
ballot, and, in fact, if you want to talk fraud--and the
supervisors I am sure can attest to this--in the State of
Florida, when there is voter fraud, it is through absentee
ballots. It is not done on election day. It is not done early.
[Applause.]
Mr. Smith. It is not done through early voting. It is not
done with Mickey Mouse registering and then voting. It is done
through absentee ballots. The percentage is very small, but it
exists. We just had a Florida Department of Law Enforcement
investigation of absentee ballot fraud going on in Madison
County--the ``Madison Nine'' I think they are known as--in
which in a local school board election, several individuals in
support of a candidate solicited absentee ballot forms for
other people, either filled them out or were there when the
voter filled them out and advised them on how to fill them out,
and then brought them back into the supervisor of election.
Nothing in H.B. 1355 touches this type of fraud. In fact, it
makes it easier for individuals who are not the person who is
going to be voting on the absentee ballot to request an
absentee ballot and have it sent not even to that person's
address that is on the books.
So if the State legislature really wanted to crack down on
fraud, certainly they probably should have considered at least
some of these problems with the absentee balloting that goes
on.
Chairman Durbin. Mr. Parks, you said at one point in your
testimony that the census data indicates that African-Americans
and Hispanic citizens in Florida are more than twice as likely
as whites to register to vote through private voter
registration drives. In 2004, that translated to 17.4 percent
of African-Americans and 18.9 percent of Hispanics registering
through voter registration drives compared to 6.6 percent non-
Hispanic whites.
In light of these figures and the testimony we have already
received, sworn testimony about the negative impact this has
had on third-party nonpartisan organizations involved in voter
registration, I think the conclusion is fairly obvious, but I
would like you to state it.
Mr. Parks. Well, without question when you put that type of
burden on third party--especially students. My background is as
a student leader. And on the campuses when you have students
who want to have voter registration drives and voter
registration drives in the broader black community, folks are
not going to do it given the burden that has been placed on
them by this House bill. So without question it is very clear
that by putting this extra burden on it, those numbers are
going to go down given the heavy burden they now have to face.
Chairman Durbin. Mr. Wilkes, is that the way you see it?
Mr. Wilkes. Absolutely. I think when you consider the fact
that Latinos and African-Americans are more likely to have
moved and changed address so they need to re-register, or
Latinos are more likely to be new citizens and need to
register, they are getting missed by the traditional
registration strategies that exist in any State but here in
Florida as well. And because of that, the third-party voter
registration efforts are absolutely key to make sure that those
voters get registered, and this is a chilling effect on those
efforts. They are trying to frighten us into not doing our job,
and it is unfortunate because we are really helping the State.
We are helping them preserve the democracy here in the State,
and yet the feeling amongst all of us is that when you go to a
volunteer, like Matilda--she has worked for 50 years for this
organization trying to help people register to vote. I am going
to tell her that she could get fined $1,000 because she is
trying to do something that she has done all this time? That is
going to scare our volunteers. It is going to scare our staff.
It is going to scare your organizations. And a lot of members
of this broad coalition have already said they are not going to
register voters anymore in the State.
Chairman Durbin. Ms. Pemberton, the earlier panel talked
about students marching from Bethune Cookman--is that correct?
Is that a historically black college?
Mr. Parks. Yes.
Chairman Durbin. A historically black college, coming in to
register, and Supervisor McFall noted that if the students had
changed dorm addresses, they would be given provisional
ballots. Not reflecting on her county specifically but, rather,
the statistics from Professor Smith, I was shocked by the wide
disparity of what happens to provisional ballots. Under the
best of circumstances, from your report, 60 percent are counted
in the end. Under the worst, 6--I should not say that. You had
a few counties that had 100 percent.
Mr. Smith. There were some at 100 percent. Very small.
Chairman Durbin. There were half a dozen counties that 100
percent, but in the ones you reported, 60 percent as against
6.3 percent, which goes to your point. If students do not think
their ballots are going to be counted because they have changed
dorms between elections, they are discouraged from
participating. Is that not the case? I mean, you said as much,
and as I listened to these provisional ballot statistics, it
really reinforces it.
Ms. Pemberton. It is. We have to bear in mind that college
is an opportunity for students to really learn about the
political process and begin their endeavors in civic
engagement. It is hard enough to get them to the polls, and now
as they are discovering, the ones that are becoming involved,
that it is a common practice in university that when you come
back, you may not be in the same dorm that you were in when you
got there, and now when you go to the poll and you have taken
this time to do these things and get informed about the
candidates and take the time to vote, that your ballot has, at
best, a 60-percent chance of being counted, that is not an
incentive for a disenfranchised group of people to vote.
Chairman Durbin. Let me just----
[Applause.]
Chairman Durbin. I am going to close, if you do not mind,
Bill, Senator Nelson, by referring to the testimony of
Superintendent Ertel because he made this point several times,
and I told him I was going to bring this up when Professor
Smith was here, and I am going to read his testimony verbatim
based on his own sampling and conclusions. And he said: ``While
we do not have real statistics on the voting habits of hard-
working single mothers, I pulled the real data for the black
and Hispanic community from the only statewide election
conducted under the new law--the current election. Based on my
data,'' Superintendent Ertel said in testimony, ``from this
very election, Sunday is actually the least likely day that a
black voter will cast their ballot and the second least likely
day that a Hispanic voter will cast their ballot. Of all the
black voters who have cast an early voting ballot in the first
5 days of this election, only 7 percent did so on Sunday. Of
the Hispanic voters who cast an early voting ballot in the
first 5 days of this election, only 16.95 percent did so on
Sunday.''
Could you react to Superintendent Ertel's observations?
Mr. Smith. I would not deny that his statistics are
correct, but let us look at the context of the Presidential
primary election that is going on right now. Last I checked,
President Barack Obama does not have an opponent in Florida. In
fact, Democrats are not given a Presidential ballot to vote on.
They may have some local races if you are a registered Democrat
or if you are registered no-party-affiliate. Republicans are
the ones that are turning out, and we know the proportion of
both Hispanic as well as African-American Republicans in the
State. It is a fraction of what a general electorate in a
general election is going to look like.
I would encourage Mr. Ertel to go back and look at his
statistics from Seminole County in 2008 when it was, admirably,
one of just a handful--10 counties--that actually allowed
Sunday voting, and to look at the proportion of African-
Americans and Hispanics and whites that voted on that final
Sunday in his particular county. I can assure you that it is
going to look very much like this figure, which
disproportionately shows African-Americans and Hispanics came
out to vote on that final Sunday relative to the white voters
who voted the rest of the week at a much higher proportion.
Chairman Durbin. Thank you.
Senator Nelson.
Senator Nelson. Thank you, Mr. Chairman.
Mr. Wilkes, from your testimony, if someone is unfortunate
enough to have their home foreclosed and they have to move into
rental housing, you mentioned in your testimony that the law
fails to take that into account, the new law. Can you
elaborate?
Mr. Wilkes. Absolutely. If they have to move across county
lines, in the past they could go in, they could vote--not a
provisional ballot but an actual vote--and at the same time
update their address. In the new law, without explanation, they
have now said it is a provisional ballot that you vote. You can
still update your address, but now you are voting with a
provisional ballot, which we have just learned rarely gets
counted.
So these are folks who have already been devastated. They
lost their homes. They lost their income. And they are trying
to participate still in our democratic process and hope to
elect someone who can see their plight and take action to help
those individuals. And then they go to the ballot box, and they
are told they cannot vote an actual vote that is going to be
sure to count. I think that that is despicable, honestly. I
mean, I cannot imagine why the State of Florida--why would they
do that to these poor folks? We know it is a huge problem in
the State. Why aren't they helping them? Why are they trying to
make life more difficult for them?
Senator Nelson. So a demographic that is more likely to
rent because of income level and a demographic that would more
frequently change addresses as renting one place and then
moving to another, if it crossed a county line, they are going
to be caught in this Catch-22. Is that your testimony?
Mr. Wilkes. That is absolutely correct, with the addition
of, unfortunately, once again, those folks tend to be
disproportionately African-American, Latino, you know, seniors,
folks who are most likely to be disenfranchised in the first
place, and now there is yet another additional burden being
imposed by this bill.
Senator Nelson. Mr. Parks, would you elaborate on why the
houses of worship are a place to encourage voter participation
in your experience?
Mr. Parks. Well, I think certainly without question,
Senator Nelson, historically one of the challenges in the
African-American community has been getting the voter
involvement, and so that has continued to be a huge battle in
the African-American community. Then we get to the point where
because we tend to socialize traditionally in the churches, as
probably the number one place in the African-American
community, it became the place that African-Americans could use
as a place to encourage each other to vote.
I think you have to also think about the work dynamics
here. I think most African-Americans tend to have to work if
not one job, sometimes a second job to survive in certain
situations. The one time that you do get a chance to socialize
in our community is at church, and that is why probably more so
than ever it is so important that the churches be allowed to
have that Sunday participation which we are being denied.
I think without question, though, from a legal standpoint
here, we realize that this particular law has a disparate
impact on African-Americans, and I think that becomes, I think,
as Senators one of the points that we want you all to consider
in your discussions as you consider this House bill.
Senator Nelson. Professor, you have written about the fact
that Florida in this Presidential primary is operating under
two different laws. The five counties, including this one,
Hillsborough, that are under the watch under the Voting Rights
Act of 1965 are under a set of one laws, which is the old law,
and the remaining 62 counties are operating under the new law
that is the subject of this hearing. Do you want to comment on
that?
Mr. Smith. Yes. It kind of makes a mockery of Bush v. Gore
in terms of having some uniform standard in which everyone in
the State needs to be voting under. We have had early voting
going on for almost 2 weeks in those five Section 5 Voting
Rights Act counties which are still under the jurisdiction of
the Federal Justice Department, and they have not yet granted
preclearance because of concerns about how truncating that
Sunday voting as well as eliminating the first 5 days of early
voting may affect disparately different demographic and racial
minorities.
You know, I find it terribly ironic that here in
Hillsborough early voting has been going on since Martin Luther
King Day, that Monday. Next door, just going across the
causeway, over in Pinellas County it did not start until that
following Saturday. And, of course, in Hillsborough, according
to information posted on the Secretary of State's website, you
will be able to vote early on that final Sunday as opposed to
in other counties surrounding it.
Senator Nelson. So if you live in Hillsborough--this is
Friday--you can vote this Sunday.
Mr. Smith. That is correct, according to information posted
on the Secretary of State's website.
Senator Nelson. But if you live in Pinellas or Pasco, you
are not going to be able to vote in the Republican primary this
coming Sunday.
Mr. Smith. That is correct, according to the Florida
Secretary of State.
Senator Nelson. Mr. Chairman, I have no further questions.
I would like to make a concluding comment at the appropriate
time.
Chairman Durbin. Thank you, Senator Nelson, and thank you
very much to the panel.
I suppose the first and obvious question is: Why is this
Subcommittee meeting in Tampa today? Why have we decided to
come down here and address a State law, 1355, changing the
voting process in the State of Florida? Some people might say,
``Well, everybody watches Florida elections, at least since
2000.''
[Laughter.]
Chairman Durbin. And that is true. More eyes have been
focused on this State since the year 2000 than many other
States.
Second, people would say, ``Well, Florida is in a special
category when it comes to the Voting Rights Act.'' This is a
50-year-plus legacy of some very bitter experiences where the
Federal Government continues to supervise and preclear laws on
voting to make sure that there is no discrimination. That is
certainly true.
The third point goes to some testimony given by the current
Chief Justice of the Supreme Court before our Senate Judiciary
Committee when he was asked about voting, and he said of
voting, ``the right that is preservative of all other rights.''
``The right that is preservative of all other rights.''
We value our rights in this country. All across this
political spectrum we value them. But most fundamentally we
value our right to vote because that determines whether we will
maintain this democracy, whether we will maintain the
confidence of the voters in this democracy, and whether we will
continue to set an example for the world, an example which
they----
[Applause.]
Chairman Durbin. An example which they frequently cite when
they take to the streets and the polling places in their
countries and determine what their future will be: ``We want to
be like America.''
We came here today, and we heard testimony, and I thank
both panels. I thought all of them did an extraordinary job in
laying out what this issue really comes down to. The decision
by the Florida Legislature and the Governor to change the law
is going to work a real disadvantage to some people. It is
going to limit the opportunity for early voting. It is going to
limit the opportunity for nonpartisan groups to register people
to vote. It is going to limit the places where people can vote.
And, unfortunately, it is difficult to escape the political
reality. It is going to have a greater impact on minorities, on
blacks and Hispanics, on the young and the poor and the elderly
than on other groups. That is not consistent with the values
that we should bring to this conversation.
I thank Senator Nelson for this invitation for the first
field hearing of this Committee. I think it was appropriate
that we were in Tampa, Florida, today discussing the right that
is preservative of all other rights.
Senator Nelson.
Senator Nelson. Mr. Chairman, I want to thank you for
making this a historic field visit at a very important time. On
the basis of your comments and the comments of all of the
excellent panelists--and we do appreciate everyone--I was
reminded that it was in the 1800s that Susan B. Anthony, who
was trying everything that she could for the rights of women,
made a very similar statement to what you just quoted the Chief
Justice as making. She said, ``All the other rights are going
to be protected only if women have the right to vote.'' And so,
too, we have seen that struggle in our country's history, the
contrast, as the Chairman has mentioned, with other countries.
Look what is going on in Syria right now.
Now, this country is unique in the Constitution and its
legal system and the rule of law. That is what sets us apart
from the rest of the world. That is something that we must
preserve. And so, Mr. Chairman, I want to thank you for coming
down here because I think that that rule of law has been
assaulted here in this State by this election law under the
pretense of cutting down on election fraud. And for you to come
here with this Committee to underscore how high the stakes are
right now, can you believe that America in the year 2012 is
facing this challenge?
Thank you, Mr. Chairman.
[Applause.]
Chairman Durbin. Thank you.
As a measure of the interest in this hearing, we not only
have a packed courtroom, but there are more than 200 people in
the overflow rooms watching this hearing as well. In addition,
dozens of organizations have submitted statements for the
record, including the ACLU, NAACP, the Brennan Center, A.
Philip Randolph Institute of Central Florida, Disability Rights
Florida, Florida Consumer Action Network; Ion Sancho--I hope I
pronounced that correctly--Leon County Supervisor of Elections;
the Lawyers Committee for Civil Rights Under the Law, Mi
Familia Vota, the Leadership Conference on Civil Rights,
Rainbow/PUSH of Florida, and the New Covenant Baptist Church of
Orlando, and without objection their statements will be placed
in the record.
[The statements appears as submissions for the record.]
Chairman Durbin. I want to thank those organizations,
particularly thank our panels, the witnesses who testified.
We will keep the hearing record open for a week to receive
additional statements, and written questions for the witnesses
may be submitted from members of the Committee, and I hope they
can respond in a timely way.
And if there are no further comments from our panel or
colleagues, thanks to the witnesses, thanks to Senator Nelson,
and this hearing stands adjourned.
[Applause.]
[Whereupon, at 2:55 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]