subcommittee i will recognize the chairs and ranking members of the subcommittee of the full committees to make opening statements in the interest of proceeding to our witnesses and mindful of our busy schedules i would ask the other members to submit their statements for the record that objection or members w waited days to submit opening statements for inclusion in the record the chair recognizes myself of five minutes for an opening statement today's hearing looks at the way in which this nation administers its elections the way we go about ensuring the integrity elections and the means we use to ensure that the right of all eligible voters to cast their votes had those votes counted in an environment that is free for intimidation is protected unfortunately we are not always done a very good job of missing elections in a manner that we expect of other nations if the result was solely disenfranchisement of large numbers of people that would be bad enough unfortunately we have now seen in the past two presidential elections that the public no longer has confidence that our elections are truly fair and that the results are accurately reflected in the final vote tally the former is a violation of our values our laws and our constitution the latter threatens the very foundation of our democracy it's a public cannot be assured that our elections are free and fair the results rightly or not will always be suspect the outcome especially in a close election could lose its legitimacy that would be catastrophic not just for the individual's right to vote was lost or impaired but for the entire nation today the subcommittee looks at some of the problems we have encountered in past elections and will explore possible solutions to those problems is unfortunate that the federal agency charged with the administration of our election laws the especially the voting rights act which this committee craft and just extended two years ago declined to send a witness today is absolutely imperative that this committee ensure that the partment is focused on threats to the right to vote as a plan to meet those threats effectively the election assistance commission which congress established as part of the help america vote act has provided a great deal of information and proposals of how to run our elections better it would have been good to hear from the department of justice about those proposals what the reaction of the voting section to those proposals is and what steps the  is taken to follow up we're pretty we will pursue these questions as well serious flaws in the election cannot be dealt with after the fact a person was disenfranchised can never get that vote back and election rendered suspect by voting rights violations will remain suspect that is unacceptable and i hope the other members of this committee on both sides of the aisle will join me in demanding that d o j department of justice fully respond to our questions on these important matters we are joined today by the former secretary of state of ohio mr j kenneth blackwell to discuss the very controversial election that held in that state in two thousand and four when he was that state's chief election officer make no mistake although the ohio case has been closely examined it hardly debated over the last four years it is far from unique many of the issues that arose in ohio is symptomatic of problems encountered around the country four years ago members of this committee asked the then majority to conduct hearings into the two thousand and four election the majority of that time had other issues at the end more important nonetheless we must confront these problems and seek solutions even four years after the fact at that time chairman conyers conducted his own unofficial inquiry including questions from mr blackwell to which we never received a response i hope we can conduct today a forward looking at problem solving hearing the other vote is no less i want to welcome our witnesses i look forward to the to your testimony and i and i will i must add at this point that we will have two panels today the first one is sitting in front of us and i look forward to hearing the testimony of all the witnesses i yield back the balance of my time i would now recognize for an opening statement our distinguished ranking minority member the gentleman from arizona  franks well thank you mr chairman mr chairman voting is the lifeblood of a democracy there are no legitimate leaders in a democracy without legitimate elections and as we begin this discussion today i would like to draw everyone's attention to a letter that was sent earlier this year to the nevada state democratic party that i believe illustrates the challenges that are in many kinds of elections i point to this letter simply because it illustrates the confusion that can occur and the doubt that can be generated when we either do not have a clear means of verifying legal voters or went into existing voting laws appear to go on in force this letter was sent by the hillary clinton for president campaign and it requests an investigation into voter suppression regarding actions taken by the obama presidential election campaign let me quote from that letter from the clinton campaign letter states the clinton campaign wishes to bring to your attention information we have received evidenc deliberately counted unregistered persons as obama votes deliberately counted young children as obama votes many voters clinton supporters were threatened with employment terminations or other discipline if they caucused for senator clinton now it seems to me of course that depending on the facts of the case in each instance these instance may constitute any number of serious violations of federal elections laws and now i'd like to mr chairman read a letter that the obama campaign sent around the same time to the nevada democrat party alleging that clinton campaign workers are quote turning our supporters away by asking to see their i d s and telling them they aren't valid close quote and that's particularly unsettling since such abuse could be remedied if there were secure universally recognized and accepted voter id my own state of arizona enacted just such a law public support for secure voter id remains very strong according the washington times quote support for the concept is overwhelming said scott rasmussen more than three fourths of republicans supported showing identification as did sixty three percent of democrats and independents and fifty eight percent of blacks sixty nine percent of whites and sixty six percent of other ethnic or racial minorities backed the concept a recent survey conducted by the nonpartisan congressional research service found that two thirds of local election officials believed that voter identification requirements will make elections more secure the recent experience under indiana's voter id law which was recently upheld by the supreme court in an opinion famously that was offered by famously liberal justice stevens shows that such laws do not diminish voter turnout rather they can increase voter turnout by giving legal voters the security of knowing that their vote will be counted and that it will not be negated by the vote of someone voting illegally indeed the recent elections in indiana went very smoothly by all accounts now also want to point out that when the indiana voter id law was challenged by opponents in the supreme court it turned out that the lead plaintiff in that case had been illegally registered to vote in two different states   no dual voting registrations can often be innocent mistakes but they're mistakes nevertheless and they can invite voting fraud by others and they should be brought forward and corrected that the exploitation gaps of gaps in the that the exploitation of gaps in the voting system to facilitate voting fraud is a problem today cannot be plausibly denied just since our last hearing on this subject a few months ago the new york times reported that a democratic district attorney in alabama has called for a federal investor into voting irregularities there and the times article itself quotes several individuals who admit on the record that they have paid and been paid for their vote and that the practice is quote pretty common and a special investigations unit in milwaukee issued a report that found evidence of illegal voting in which quote persons had to commit multiple criminal acts and effort in an effort to reach their ultimate goal of voting close quote the same or port concluded that quote the reports of more ballots cast than voters recorded were found to be true the report then states that the only reason the prosecutions weren't pursued was because election records were so poorly maintained the supreme court itself recognize the problem of voting fraud and its proffered decision in april mr chairman it's important to all of us to know that when we vote that the process will be fair and just and accurate i think that it not only lends great credence to our system but it avoids some of the challenges that other countries have demonstrated like mexico to where their entire elections are called into question because people do not have confidence in the system so those concerns in mind i look secretary of state thank you mr chairman i thank you i want to welcome our distinguished panel of witnesses today are at least our first panel of witnesses today before we begin oh i'm much controversy about the appropriateness and fairness of our election process starting with the year two thousand where the supreme court intervened in in the presidential come for the first time in american history and then we had two thousand and four in which we had a huge amount of controversy following the outcome of the ohio election vote which determine the presidency of the united states that year but in between  even there were federal elections that have been in controversy as well and so it's it's important that we know chairman nads are scum it we get little or no cooperation from the department of justice the election section where the security and confidence of the balloting process the will process is monitored and inforced first of all we can't even get a witness here from that section from the department of justice continue on or or is this just attorney general that's preoccupied with other matters why why can't we appreciate that in a year where we're going to have an acknowledged record turnout of new voters we can't even get a representative from the department of justice to tell us what's happening so this lack of communication is very serious and i'm i'm very concerned  that we're going to get the same kind of song and dance that frequently issues from the department of justice namely we're on it we've got people working on it we're concerned we're going to try to do a good job do not worry whenever any complaints arise everything will be ok well everything is not going to be ok because coming up on the back end of the problems is a lot different from being proactive and dealing with the problems that can that can easily be seen in  advance the other question we're trying to get to the bottom of is how much of the department of justice has resources are allocated to making sure that this is the forward to the witnesses that are here we know that the former secretary of state of ohio who lead the election you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your knowledge information and belief thank you the record reflected the witnesses answered in the affirmative you may be seated without objection your written statements will be made a part of the record in their entirety we would ask each of you to summarize your testimony in five minutes or less to help you keep time as a timing light at the table when one minute remains remains assuming the system operates properly the light will switch from green yellow and then to red when the five minutes are up our first witness well it's customary at this point for me to read the short biographies of the witnesses the first panel but i don't seem to have them here so when they arrive we'll perhaps going to them at this point but our first witness is thank you mr chairman and good afternoon to you and members of the committee i am here today at the committee's request to speak to the issues of or the issue lessons learned in the two thousand and election i testified today in my capacity as a private citizen in my estimation and that of most independent observers or how ones were all served by their state and local elections officials in two thousand and four i personally think each of them for their exemplary service the state of ohio received more than its fair share of attention doing a long campaign leading to the november second election of that year with the prospect of a close contest for the state's twenty electoral college votes as election day approached attorneys from both sides were in position combing all hiles election rules for provisions that would help them and quote or over all or how has a good system like any system if you scrutinize it enough you're going to find weaknesses this quote is from do t a democrat lawyer who worked in the secretary of state's office in the previous administration and who is deeply who was deeply involved in the election and it aftermath i happen to agree with mr mcteague overall hiles has a good system and it performed under extraordinary stress and yes it has some weaknesses and i have spoken to some of those in my prepared remarks that i have submitted for the record but first i am compelled to speak to the fabrications exaggerations that so with some who dislike the fact that their presidential candidate lost ohio keep repeating unlike mr mcteague they dismiss evidence and simple explanations and the war  fellow democrats when the intimidation or the intimation of some vast conspiracy to steal the election is so much more excel orating our eighty eight bipartisan county boards of elections provide the checks and balances that make it virtually impossible for either party to rig and ohio election from the inside they decide on the distribution ratios of voting equipment they decide the location of polling stations and they select the voting equipment used in their counties from a list of equipment certified by the secretary of state's office all of the safeguards ensure that local concerns about access to polling stations and equipment are handled locally and that both parties have a say in the final decisions the secretary of state's office collects and certify as the final outcome and some i do not believe that it is a good use of the committee's time or my own to rehash the details of the mostly the most thoroughly vetted election in recent memory in recent memory but i did not want to this opportunity to give credit to the more than fifty thousand ohioans who worked hard to make the two thousand and four election one of the most fair and accessible in the state's history in my prepared remarks i give you roughly nine lessons that eight lessons that were learned let me focus on one in my remaining few minutes and that is the long lines and franklin in franklin county is so important that we deal with this because this is the image that has come to represent the entire election process in the state of ohio close elections and hotly contest contested issues mean big turnout boards of elections around the country and ohio use turnout figures are sure use turnout figures from two thousand and four to better anticipate precinct by precinct demand on voting equipment in ohio in franklin county we had two few voting machines to accommodate the demand that was a historic demand county board of election are made up of damage at some republicans in two thousand and four the chairman of the franklin county board of election was african american a labor leader a civil rights activist and a democrat and they made a decision on the distribution of voting machines based on how many machines they had and historic data those considerations were insufficient for the record turnout and we had long lines i must give them credit for accommodating a highly stressed system under those circumstances but they did it and let me say that there was a record turnout of african american voters there was a successful account of the vote in franklin county and i think it speaks to the local control and the bipartisan boards of elections that we have i know that there are those who would have arrived i second witness is a dancer kaji dancer kaji is the associate professor of law and the associate direction director of election law at the ohio state university's marts college of law his recent publications including early returns on election reform discretion disenfranchisement and help america vote act which examines litigation surrounding the two thousand four election and the paperless chase electronic voting democratic values which analyzes the legal issues arising  thank you mr chairman and members of the committee my remarks today will focus on election administration problems that arose in the course of the two thousand and four election particularly in ohio i also want to draw some broader lessons from the experience of my state of ohio and other states in two thousand and four and subsequent years i'll refer the members of the committee to my written testimony for four more expansive thoughts on what needs to be done in the forthcoming election season to make sure that everyone's right to vote is protected including the steps that the united states department of justice ought to be taking but hasn't for the most part taken during the current administration first ohio's experience in two thousand and four on the morning of november third two thousand for president bush led senator john kerry by approximately one hundred thirty six thousand votes out of some five point six million cast in and long lines that undoubtedly kept some citizens from voting had the margin been closer in ohio however we almost certainly would have seen a replay of the battles that  versus gore with the buckeye state rather than sunshine state as the backdrop mr blackwell playing the role of former secretary of state of florida katherine harris and provisional ballots replacing or supplementing punch card ballots as the dominant prop despite the fact that there was no post election meltdown in two thousand and four there is no doubt that there was and that there remains significant room for improvement in the functioning of our election system and it is clear that state and local officials in ohio and elsewhere could have done a better job at implementing the requirements of state and federal law i've talked about seven areas in which there were significant problems in ohio in my written testimony today i discussed that in greater detail in my law review article that i've asked be supplemented to my testimony let me just focus on a few of those in the time that i have left first voting technology so i was still using punch card ballots in the two thousand and four election that probably cost about forty four thousand to seventy seven thousand votes throughout the state second voter registration there was a great deal of controversy over secretary of state blackwell's directive that voter registrations only be accepted if they were on eighty pound that's heavy stock paper weight that directive was ultimately reversed under pressure provisional ballots this was a huge issue in two thousand and four i expect it's going to be a significant issue in two thousand eighty gann one of the big controversies was so called wrong precinct provisional ballots that is provisional ballots cast in the wrong precinct secretary of state blackwell issued a directive on this that was for the most part of held in the courts the also significant issues having to do with challenges to voter eligibility a federal district court in ohio issued an order against secretary blackwell in other election officials restraining pre election challenges there were also four different cases challenging election day challenges for courts issued orders all of those however were ultimately stayed as late as election day finally what lessons can we draw all this i set forth for in my written testimony i'm going to just describe them very briefly here given the time first there is a need for clear and transparent rules issued well in advance of the election one of the big problems that we had in ohio in two thousand and four where that there were a lot of directives being issued by the secretary of state's office within weeks or in some cases even days of the election that contributed to an atmosphere of confusion not only among voters and voting rights groups but also among local election officials second hardison ship in election administration remains a serious problem and here i want to go beyond individual personalities my goal today is not to demonize secretary of state blackwell or any other election official but to focus on an institutional problem we have a situation in most states in which the chief election fishel is elected is a partisan official not just that the empire has a stake in the game the umpire is actually a player for one of the teams and as long as we have this situation or states we're going to continue to have accusations of partisanship leveled against chief election officials and election officials generally democratic were public and third litigation can play an essential role in protecting voters rights and promoting sound election administration including equality and i think that was certainly true in the lawsuits that were brought against secretary black on ohio and lawsuits brought in other states they did in fact have a significant effect in protecting voters rights as i explained in greater detail in my written testimony in my law review article forced election reform remains a work in progress i would urge that we make our decisions in in the future on election reform not based on rhetoric or the latest media story but on sound data and research and i fear that our election reform agenda is have too often been informed by exaggerated sometimes hyperbolic claims of fraud that's true on both the left and the right on the left it's often been accusations of stolen elections rigged elections sometimes voting machines on the right it's been exaggerated allegations of voters cheating in fact if you look at indiana state that was mentioned earlier in the supreme court's opinion it notes that there was not a single documented instance in that state of voter in person a should voters going to the polls pretending to be someone they're not the only problem that the voter identification law in that state would address a close my testimony there i would i would be happy to take any further questions that the committee has i think the  in washington d c ms mitchell you recognize five minutes thank you thank you mr chairman i am an attorney as you said i specialize in the area of political law which i described to people as the business and regulation of politics lobbying public policy and elections i've been involved in law and politics for more than thirty years and it is a privilege mr chairman for me to be here today to discuss with the committee america's elections and voting process the primary argument seemingly at the heart of this hearing and every discussion of voting issues is a fundamental disagreement on the following question is there or is there not voter fraud is voter fraud a myth or a fact chairman my answer to those questions is that voter fraud is real it is not a myth there are people in this country who deliberately calculate ways to illegally enhance the votes cast for their candidates and the public record is chock full of examples of illegal activity surrounding our voter registration systems and our voting process is political scientist larry saboteur and reporter glenn sanson and nine ninety six in their book dirty little secrets the persistence of corruption in american politics wrote voting fraud is back and becoming more serious with each election cycle they also write the fact that fraud is generally not recognized as a serious problem by the media create the perfect environment for it to flourish the role played by the news media deserves a special comment many of the stories we reviewed received little to no national press attention even the local media outlets covered the carried the news accounts partly as noted at the outset this results from the mistaken belief among journalists that vote fraud is no longer a serious problem mr chairman you've labeled this hearing lessons learned from the two thousand and four presidential election i would also like to discuss the two thousand and four election and lessons learned but not to confine it to the presidential election only and i would also like to point to examples of election fraud in two thousand in two thousand and two and two thousand and six because all of these elections offer some lessons to be learned namely this that voter fraud is alive and well in the united states and it is getting worse because too many officials partisans and the media do not take it seriously in my testimony i have submitted examples of fraud in oklahoma in two thousand and four and a us senate race in the south dakota in two thousand and two and two thousand and four and efforts to overturn the election in those two elections and in two thousand and four in the governor's election in washington state where the outcome was undoubtedly changed by illegal voting activity and those examples and others are in my written testimony but for my oral comments here today i want to focus on one organization which is the single largest perpetrator of voter fraud in this country and what should be investigated by the department of justice and this congress at the earliest day and that is acorn including my testimony at article from the truth october thirtieth two thousand and seven seattle times headline three plead guilty in fake voter scheme this story reads three of seven defendants in the biggest voter registration fraud scheme in washington history have pleaded guilty and one has been sentenced prosecutors said monday this is last october the defendants were all temporary employees acorn the association of community organizations for reform now when they allegedly filled out and submitted more than eighteen hundred fictitious voter registration cards during a two thousand and six registration drive in king and pierce counties mr chairman i would like to ask that the documents from those court proceedings be included in the permanent record of the committee at this hearing that objection also i would like to reference the settlement agreement which was actually entered into between king county and acorn one year ago today in which acorn settled with the king county prosecutor's office to avoid criminal probe and civil prosecution as an organization and paid a twenty five thousand dollar settlement i would also ask that that settlement agreement be entered into the official record of the committee hearing today without without objection again thank you acorn's efforts to register voters have been scandal prone elsewhere in st louis missouri officials found that in two thousand and six over one thousand addresses listed on its registrations didn't exist federal authorities indicted  acorn's local workers one of the eight pleaded guilty last month mr chairman i would like to ask that those court documents the entered into the fischel record of this committee hearing without objection or court documents that you wish and fit into the chairman that acorn has been implicated in similar voter fraud schemes not only in washington and missouri but also in ohio and twelve other states the wall street journal noted in ohio in two thousand and four a worker for one affiliate acorn was given a crack cocaine in exchange for fraudulent registrations that included underage voters dead voters and pillars of the community named mary poppins dick tracy jive turkey during a congressional hearing in ohio in the aftermath of the two thousand and four election officials from several counties in the state explained acorn's practice of dumping thousands of registration forms in their laps on the last day when registration had closed when the registration is closing even though the forms have been collected months earlier and i will note that in the settlement agreement between king county and corn in the state of washington the settlement agreement specifically requires acorn to submit its voter registration within seven days after having gotten them rather than waiting until the very end in march of this year philadelphia election officials accuse acorn of following a filing fraudulent voter registrations that advance of the april twenty second pennsylvania primary that charges have been forwarded to the city district attorney's office mr chairman here is the fact there are people in america who steal or attempt to steal votes they illegally register votes voters who don't exist who are dead or who are mythical there are people who break the law to accomplish their political objectives during the voting process acorn is such an organization with a deliberate historic proven documented pattern and practice of illegal voter registration of political activities i again urge that one of the lessons from two thousand and four and two thousand and six should be that this committee and the department of justice should undertake an immediate investigation of acorn in order to stop their illegal voter activities it is time to join together to take every possible step to assure that our voting systems are secure that only legally eligible voters cast ballots and that every legally cast elected to a statewide executive office in ohio when he was elected treasurer of the state the questioning of the witnesses as we ask questions of our witnesses the chair will recognize members of the order of this seniority of a subcommittee alternating between majority and minority and provided that the member is present when his or her term arrives members who are not present when their turn begins will be recognized after the other members for the opportunity to ask their questions the chair is or is the right to accommodate a member who is unavoidably late or only able to be with us for a short time i will begin  by recognizing myself for five minutes to question the witnesses my first question is to mr tokai to kaji is that is that it's ethical we just heard ms mitchell claim that voter fraud a widespread problem do you agree with this assessment and let me give a second question is mitchell also talked in particular about acorn perhaps others who register people who don't exist donald d k mary poppins of i know of no reason why mary poppins shouldn't vote but anyway well that may be in any event the register people don't exist is there any evidence that there's a large scale already existing problem with imaginary voters in fact showing up at the people claiming to be the imaginary voters so many of the polls eventually voting using my let me answer the second question first mr chairman the answer is no and what you just heard from this michel unfortunately is a prime example of what i discussed in my testimony earlier exaggerated and hyperbolic allegations of fraud that distort the debate over election reform i'm a law professor so i prefer to be analytic rather than rhetorical in discussing these issues so let's break down the different kinds of fraud which tend to get conflated in public debates first there's insider fraud someone on the inside an election official for example stuffs a ballot to or manipulates code to change the result we do have some historical examples of that second registration fraud false registration forms are submitted for example mary poppins now this did happen to some extent in the two thousand  election the problem was that registration groups were paying people by the registration form and this is a problem that's easily correctable if we simply change the exit the incentives require that people be paid on an hourly paces rather than on a per registration form basis that destroys the incentive to engage in that sort of registration fraud and then there's voter fraud which can be broken down into two subparts right there's absentee fraud and there's voters going to the polls pretending to be someone they're not now voter fraud is rare but to the extent it occurs it's mostly with absentee ballots not with voters going to the polls pretending to be someone they're not and that makes sense from a commonsense perspective what those are in his right mind is going to go to the polls pertaining to be someone that he or she is not th benefit is minimal the cost in terms of the sorts of prosecutions that have been brought and indeed should be brought when a voter really does that are enormous thank you mr blackwell it's victory have been a terrible result for hire would have been a horrible outcome for the families and taxpayers of america and i'm sure you believe that and you in times i believe obviously my question is do you think it's a conflict of interest a bi partisan system equally balanced at the it is at at the at the county level where the votes are counted and ohio had a had a  question is is saying that they're on the local level there are there are bipartisan boards elections but the chief official the secretary of state makes i know i've read makes decisions that can effect things otherwise i mean  obviously make decisions going to back things do you think that whether it's traditional or not that it is inherently a conflict of interest for someone who is in fact in a position to make decisions without the opposite chairman i mean you know two secretaries of state i don't get is chairman saying don't separate the individual secretary of state from the structure that is guaranteed to protect against a partisan secretary of state six years a state run for election answer a republican democrat libertarian green party member in the state of ohio they run as a partisan now if you go back in you and you change the constitution and secretaries of state become appointed and or there's a board that as my colleague here has suggested that we have where you have a secretary of state that is not partisan and really elected then i'm comfortable with that you would not you would not think it was my last question is my time has expired you would not think it a good idea for example if congress exercising our power to regulate federal elections which we require that the chief election ministration every state not be a partisan figure i think that would be of federal reach and in terms of we don't have a a national election system we have a fifty state election system getting our power to do it would be a good i don't know about i don't want to separate it from your constitutional powers and the constitutional rights of states and individual citizens now what i think is an import here is is that then take me the system is protected by how it is it is structured i think that elections should continue and both should continue to be counted at the local level i believe that to develop partisan system of checks and balances are in place and i think  ohio's tradition of electing its secretary of state is healthy it works and it has produced good elections thank you very much my time is expired and i recognize for five minutes of questioning the  here i hold you in the highest esteem i believe you are an example of what elected officials should aspire to and so i want to be very upfront i'm very biased in your favor with that said i'd just like to ask you  as secretary of state what do you think the responsibility of someone from either party really is when it comes to protecting the voting process and what are the the things that you believe in your heart are the most important  pretty simple we we have to protect the integrity and the fairness of the system and we have to deal with weaknesses structurally in the system that would allow for one person's vote to be not  house system not one of the state party officials either party have been part to assume questioning the integrity of the system because of the soundness of the system and so the chief election officer has to pass has to do with the soundness of the system it has to do with he or she has to deal with the antiquity of the vote and i think that's i think that's i think that's very important let me underscore something and uses opportunity you know we heard and i tell you this was the one thing that i lost some sleep over and that was the whole paper weight issue and i think that because we have revisited this issue that is very very important that we go back to the testimony of mrs patricia wu of given before the house committee on a ministration in columbus ohio on march twenty first two thousand and five she gave a historical overview the reason that there was a paperweight provision at all was back in the early ninety's a decision was made after the us post office came to the secretary of state office and said you are losing a lot of voter registrations to the mails sorting system they're being destroyed and people's registration  have been eliminated so they went to a paper weight that could go through the sorting machine and avoid destruction in two thousand and four something interesting happened because there were campaigns to  get higher numbers of people registered people start to get paid for the number registrations that they delivered and so they wanted the photo opportunity and they started to bring it in well now with most of the registrations coming in over the counter as opposed to doing the mail there was actually no need for the paper weight requirement once that was made once that evidence was make clear to me it wasn't pressure it was evident and lawyers are not the only folks who deal with evidence and logic we in fact made a change in the system the reason i bring that to your attention is because patricia wolfe was a lection administrator under bob taft under me and presently under democrat jennifer brunner she made a compelling case as to what happened why it happened and how we made a mic course correction but this notion this imagery that we we in fact changed on the the the heavy hand of pressure is just wrong we change based on logic and we change based on the fact that the registrations were coming in over the counter as opposed to doing during the mail through the mail so thank you  that's what you had to do we run elections election officials run elections there are it's a very fluid process you have to make judgments you know day and right up and to election is executed and if you can't take the heat of criticism when you have to make those sort of decisions that you not be a secretary of state or a an election official then take a day of the system is what matters because it then protects against anybody tampering with the system whether be the secretary of state or some fraudulent voter thank you sir thank you for your service mr chairman my time is expired in ohio you know i haven't read it i've heard of it ok but you would you would agree with me that there is voter fraud then main concern is that is that ok is voter fraud and we have laws to try to guard against it and we ought to enforce the laws and we ought to quit arguing about whether or not it exists it does exist people still vote people using up a lot of my time in of the two thousand and four election my recollection serves me correctly about forty times there were issues and let me just give you no i  don't need any i don't know i know to me just give you a chance if you don't mind let me just give you an example because it's one that comes up all of the time well and that was that was for instance ohio was one of twenty seven states that for a vote to be counted it had to be cast in the right precinct in the right county and i took the position that that was state law  and and and it should be defended as it was defended by the other twenty six states that had that same law and we won but all of a sudden those who wanted you know voters without borders you know saw me as some sort of enemy when i saw myself and others who defended votes being counted in the rice precinct in the right county as being protectors of the integrity of the system ok do you know that your state is i think the first state in the union to be challenged to have the lectors counted in the in the congress because of voter irregularities i think that law was passed in eight hundred seventy seven you know it didn't surprise me given that i thought at the time it was  clear democrat and i say this in respect of the two party system to discredit the outcome because they didn't like the outcome and so as you know it is a very suit happy  suits when it came to the integrity of the system in the consistency of our application of the law was uphill well yeah it was a republican majority in the congress is that  artificial atmosphere here you know where acting like nothing went wrong or much went wrong and there been books written about what happened in ohio there  challenges based on the exit polls that the result was the most unusual in recorded history i happened to have brought  a dozen members or so to ohio to columbus including the chairman of the constitutional committee maxine waters on this committee a couple or three of the members of congress all day here and i happen to have the testimony here which we're going to put in the record but the whole point of this thing is that there were citizens testifying there were lots of irregularities plenty of them and they were pretty bad about them and they were all democrats did you follow that at all yes yes sir i followed the ballots and where we counted them and how we counted them heil had a seventy eight percent validation rate the third best in the country because one we had  a process a procedure that had been publicly advocated so much so that we spent two point five million dollars to make sure that voters and president expenditure to make sure that vote voted in the right precinct they know how to how to make sure they were in the right precinct so that they vote that their vote counted and i think that helped to give us a high validation have  as i explained to you a lot of the controversy was and i and i there are a lot of people with imaginations can to jonathan swift you know there will be films put out against this as a nation  of of president kennedy so because somebody makes a family somebody makes a charge doesn't mean that there's any facts of that we believe and i continue to believe that there was a good in fact you don't take my word for sectors to blackwell's word for take the plain dealer not necessarily a friend of republicans in ohio but they got i got headlines here conspiracy theories and ohio vote refused to die delays at the polls weren't scheme in fact if if  was so great in orchestrating this this conspiracy you know he was our secretary of state in two thousand two thousand to two thousand and four and in two thousand and six when he also happen to be running for the highest office in our state running for governor if he could rig the deal in two thousand and four you would think you would think he could rig it in two thousand and six when he was trying to be our governor so i mean this some of this stuff is just just crazy but i do want to go to miss mitchell and ask you the provisional ballot decision that secretary  blackwell implemented which basically said you have to vote where you live and where you're registered if we hadn't done that in the experience you've had with acorn and what they have done around the country talk to me about what could have happened in ohio but for the decision that mr blackwell implement well congressman that is a really important question because as you're probably well aware there are more than one there are more there is more than one piece of legislation floating around in both the house and the senate to state as a matter of federal law that provisional ballots do not have to be counted just in the county or the precincts of the voters residence and i think that the saying that mischief if you let someone on election day does vote anywhere and what can happen that's huge well the problem is that we don't have a system where people have to be in every state where they have to show identification in order to register so we have a situation where if they if they don't have to if they can register by mail which they can in many states but many states also then require that you have to show  voter identification identification photo id the first time you vote after you have registered without presenting identification if you don't have to show identification when you register and you don't have to show  identification when you are you can vote by mail and you know that there are these groups out there i would respond to mr to kaji in that the reason i wanted all of those matters related to a corner and the court proceedings entered into the record is because these are not myths that i have fabricated these are from court official documents but if you have all of these situations where you have the fraud in the registration and then people coming in and being able to vote whether they live cast a provisional ballot anywhere and they don't have to show identification what pray tell is the safeguard to protect against the total breakdown of our election process i just don't get it well said mr because you think you get the vote where you live that was just spun out is a fanciful one congress so a little bit let me let me see whether it's so you think someone should be able to show up in any county if they're with their children and not vote in the precincts that they're assigned to vote and not vote in the county you think should be able to know i think jurisdiction is congress used in the help america vote act means registrars jurisdiction as it's used in the national voter registration act which in most states is the county so a provisional ballot would only have to  count for federal offices only if you vote in the correct county and what happens as a realistic matter and this is documented by ohio's provisional voting data is some voters whether from their own mistakes or because they're sent to the wrong precinct voting the wrong precinct indeed a lot of times they'll go to the raw right polling place but there are several precincts at the polling place and they'll get directed to the wrong precinct and those people's votes in ohio right now don't count i think that that is most unfortunate the possibility of multiple voting is really a myth given that congress in two thousand and two mandated stat state registration databases that will catch those people and indeed someone will be just it's eighty eight counties to republicans to democrats on every county board of election talking about and we have i got stuff here article here from richard small to elections magazine talking about how that bipartisan system works talking about that real quickly  really it really does work and again i just want to underscore there are no perfect systems yes there were there were mistakes made you look forward and you say how do we prevent those mistakes from being made again and i think that we do it by damming a system that has in the main worked is a bipartisan system democrats republicans not one of the those election officials democrat or republican said that there was anything wrong with the system i think it is that sort of confidence by democrats republican parties in the bipartisan system  helps to build public confidence thank you there are four votes on the floor and there is one minute and two seconds left on the vote to lay to bed so i asked the witnesses to remain  you let me if i can you made an observation during your exchange with chairman conyers that election officials run elections and that's true enough i'm a little bit more interested in what happens when election officials run campaigns since you were the honorary chair of the bush campaign which i think is a little bit unusual just just by way of a reference let me ask in the two thousand and four campaign cycle any yes as a matter of fact i answered questions matter of fact there were more secretaries of state that were that were election officials and these were on a riff ics statewide officials normally or associated with the president let me represent to you that when i said earlier my knowledge of the universe is not exhaustive but frankly i don't think that any of the bush campaign shares in two thousand and four were secretar secretaries of states attorney generals that were honorary chairs of their respective candidate all right and in two thousand and four then that's your position that ship position that's fine and also to fact i know of one that would be miss harrison two thousand and that was also the subject of controversy but let let let me rather than go back and forth on what honorary chairs do let me just tell you what stands out about that obviously the secretary of state has a responsibility for dealing with election law obviously i fully understand that they are lower level officials who handle on the day to day work but assuming that the job does what the constitution of ohio says it does you have a significant role you had a significant role in that process elias did katherine harris in two thousand now this is the timeline that is intriguing to me it was unclear before the election and of ember two thousand four that they were going to be disputed issues around the election it seemed clear to me that there were going to be efforts and announced efforts by the republican party to challenge the registration of some voters obviously that would have required some participation by election officials including the chief election officer it also seems very clear to me that ohio was a pivotal state in two thousand  potential controversies going on a rat i fully understand your observation that there was nothing in ohio law and nothing in federal law that preclude you from playing that role so that's not my point is not waste time on that but it seems to me that i raise a noble secretary of state a reasonable chief elections officer might have thought that there was an appearance of a conflict of interest are you not person who understands the bipartisan nature of our elections system for instance mr chairman the franklin county chairman of the board of controversy and i don't think there's any question that people at the time said they were concerned about it and the people at the time raise the example of ms harris's experience i think it's interesting that you persisted anyway but let me ask you a factual question i first learned about the exit polls having john kerry winning ohio around twelve o'clock on the tuesday of the election and what did you first learn about  him i didn't pay that much attention to men did you first learn about history i didn't i can't i don't recollect when i would have in fact hated you learn about them oh yeah i learned about him in retrospect reading about i don't look at anyone call you that day and mention that the exit polls you know were very favorable yesterday or i was in the snow because i thought that on that day i was working with eighty eight county boards of elections to make sure that we were managing long lines did you have any communications that day with anyone who was part of the bush re elect campaign know if you have any communications with anyone in the white house staff know did you have any communications with anyone who was in any way affiliated with the president on the day of the election you mean that day i haven't researched it enough to know that but what i do think is very interesting when the secretary of state is also a major political player and receives or is in a position to course over the course of the day that could have the effect of affecting or limiting or suppressing voter turnout and i doubt you know enough mr blackwell to accuse you of that because none of us know the facts as well as you do but the problem is you put yourself in a position you knew there was a conflict of interest and you didn't walk away feeling no conflict even are those integrity is preserved and i guess the thing that i find the most disturbing is that the question i want to ask you is would you not agree that it is at least one major one part of the major responsibilities of a secretary of state to expand voter participation yes ok well what would what's disturbing to me is that it appears as though you spent more time as secretary of state in the two thousand and four election reducing or suppressing voter participation as opposed to expanding and let me give you a number of examples of that one as you created new standards on the use of provisional ballots which titian's disenfranchise thousands of voters in predominantly democratic or minority areas you also rejected thousands of new voter applications simply because they were not printed on the correct weight of paper now that's something i want to come back to in a second that i prefer i find particularly unbelievable and you prevented voters most of them senior citizens and i represent a district that ha e thousands and thousands of senior voters who use the absentee ballot process in order to be able to cast their ballots because of their frailty in many cases senior citizens who had not yet received their ballots were prevented  from casting provisional ballots on election day but what i find the most unbelievable is that you made reference to the weight of the paper and the reason that you made the decision to use eighty pound paper and require that on voter registration cards or cards when they were returned with the with the voters information because it would potentially be difficult for those cards to be processed through postal machines if they were not a certain way is that correct that was your testimony ok well that would be understandable but let's say that that that that the sound decision that that you know you could argue makes some sense but doesn't make any sense to me at all and what i think it makes it eviden that you were much more focused on suppressing voter participation is that when those cards that were not printed on a town paper reached office you rejected them and treated them as voter registration applications as opposed to simply processing them and allowing those people to register now it's one thing if you're going to argue that you're worried about the weight of the paper not getting it through the postal machine it's completely different when the actual card has reached your office and you discard it and not allow it to be counted as a voter registration and make those people go through the process again can you explain your rationale for that portion of your decision congresswoman two things first when the issue was brought to my attention we reviewed it we acted on it and we had the courage to of voter registration entries that were not on eighty pound paper that you treated them as voter registration applications even though they were not and did not allow to count those medications and made them go through the process again is that true did you do that were not on eighty pound paper did or did you not do that they got processed when after they had to go back through the process they got probably they processed the first time they would submit answer is no  those those that was not the policy of the office that i our policy that i inherited when i got elected that's a legacy that you had the power to overturn and i did want the evidence but once no evidence was made policy of the secretary of state's office that had been put in place in the mid ninety's before i was secretary of state did you or did not have the authority to change that upon become which which i did which i did and why it was told to me they tired and i know his time time is expired and this i will state at the end of the at the end of the hearing in the normal explanation witnesses are free to expand their answers in written submissions to the committee after the election officials especially in franklin county mr blackwell had difficulty in allocating voting machines and then as a result voters were franchise from the process no my my my the dancers that they didn't have trouble they didn't answer no answers a yes the answer is no they didn't have trouble they didn't  distribution is made at the county level i would hope that this committee would look at the election law and process in the state of ohio and well out of whole cloth but look we're not here to get your instructions you said the answer's no and that's what you said there wasn't voters that were disenfranchised especially in that county so that's the record except for just one part of it and i'm not sure i heard you right did anyone submit an application for voter registration on something that was not eighty pound paper and not about it until election day when they're told they can't vote they were told that they could vote if they'd submitted the proper form on lightweight paper they were considered registered to vote is that right right ok  and to follow up on another question i think it's clear you're not the only person and the position of secretary or the election official who has partisan activities would should election officials be governed by guidelines applicable to quasi judicial personnel rather than partisan personnel congressman scott you've asked a great question this is this is a debate that has gone on before me and after me and that is whether or not you should take partisanship out of election it is a bipartisan process if you want to change that system i mean you're talking about wholesale change and i think about part of the part of some of this i don't have a right to have a voice in that bipartisan at the precinct level where you have both sides looking is one thing it's another thing to have a dispute resolved by somebody who has a partisan interest and overt partisan interest in the campaign so my question isn't on the whether or not both and when a little informal elections usually both candidates get to send somebody in about it it is a bipartisan system  the same system that when sure brown was secretary of state and chairman of the component then chairman of the campaign it is a bipartisan system all the way up the chain and that's and that's that's a by the awkwardness of having somebody having a player also be the empire yes i would let me first agree with one thing that secretary of state blackwell former secretary of state blackwell said at the local level there is by a bipartisan system we have election boards that are evenly split in ohio between democrats and republicans that's certainly true at the state level however like most states we have a secretary of state our chief election official who is elected as the nominee of his or her party and secretary of state blackwell was quite strongly criticised during the two thousand and four election season for making decisions that many people perceived i think at least in some instances correctly as benefiting his party and that's in part what i mean another question mr blackwell how long should people wait before they can vote and how long a wait what actually constitutes a denial of civil rights i don't know the answer to that question because i think it takes it you have to look at it on a case by case basis and the circumstances of that time let me just tell you the beauty of long lines voting machine distribution is made at the county level not by the secretary of state is not a central decision is made at the county level by the county boards of elections and as i say i formal testimony those decisions are based on a historic pattern of voter turnout i met such as the chairman is being very kind of let me run over a little bit of my question was whether or not there is a length of time in which you know what i'm standing right there there are circumstances and in this case the long lines were the result of a vibrant get out the vote process ohio in two thousand and four and your vote counts was getting that record and that was runs from the secretary of state's office as i described it with the calls to make sure the votes count and consistent with my view of civil rights the time of the gentleman has expired and i recognize the gentleman from north carolina for five minutes thank you mr chairman and thank you for this important hearing i actually want to look forward rather than backwards though you know their concerns about what happened in the last election i'm a lot more concerned about what could happen in the next election and so i want to turn mr blackwell to to the very first recommendation that you have made in the lessons learned and know how which is boards of election around the country should use the record turnout figures from two thousand and four to better anticipate precinct by precinct demands on voting  equipment unless i misunderstand what you're saying and i certainly am going to give you an opportunity to to clarify if i am misunderstanding machine voting equipment based on a record turnout in two thousand and four in the two thousand and eight because i mean i presume that boards of election in the past have allocated based on a hindsight view of what has happened in the past rather than a future sight view of what they did i just don't understand how you could be recommending that we look at two thousand and four numbers to calculate this my first concern with it  answer i don't i don't play the game that way i just want to get my questions on the record so that everybody can see where i'm going if i read article one section  four time places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature they are but the congress may at any time by law make alter such regulations we got a presidential election i don't see anything in section four about a presidential election and so the question i wan ask is would we as a congress have the authority to be a lot more aggressive than we have historically been  in making the machine allocation decisions and i know it's micromanagement but if we want a fair presidential election and we want to hold out selves up around the world as tell secretaries of state that you can have budgets allocated by the general assembly on an anticipated turnout increase so that you could now distribute  voting machines then i am sure a lot of folks would be anticipatory in the number of machines you're talking about a budget matter   if read the way you say it it doesn't make sense to me maybe it makes sense to you boards of elections around the country should use the record turnout figures from two thousand and four to better anticipate precinct by precinct so basically what you're saying i should look at two thousand and four i've got a selected number of machines and i could anticipate that precinct by precinct demands all voting equipment reading because the big number is one to seventy five so go all the way down to that and you'll begin to understand the management realities the secretary of state have to live constitution via lections clause to regulate the number of voters per machine for a u s house and u s senate elections but presidential elections that article one section four wouldn't give that power there might however be authority to protect the fundamental right to vote under section five of the fourteenth amendment to the constitution thank you time of the gentleman u for fifteen seconds just without objection argue with his interpretation of this this gives the right to state to allocate for house and senate doesn't say anything about  president doesn't give congress the right i think you've got it backward correct congress can make or alter such regulations for house and if we're house and senate a letter you're saying you're saying this because this gives us no authority over presidential elections gentlemen as time has expired i would simply point out that if congress decided to regulate a congressional action it's automatically regulating that that would get the job done i i thank the panel for testimony questions which makes sense to you or to expand upon your testimony i thank the panel and i'd ask our second title of witnesses to come forward finance regulations for we begin his customary for the committee to swear in its witnesses if you please stand and raise your right hand take the oath do you swear or affirm under penalty of perjury the testimony about to give testimony in five minutes or less as reminded tells you he time there is a timing why did your table when one minute remains light will switch from green to yellow and then to read when the five minutes are up first witnesses professor daniel  thank you mr chairman and members of this committee it is a privilege and an honor to appear before you today to discuss ways that the department of justice can proactively address election administration issues prior to november two thousand and eight i have more than a decade of voting rights experience and served as a deputy chief under both like clinton and bush administration presently i'm an assistant professor at the university of baltimore school of law where i teach election law among other topics i was a deputy chief in two thousand when the country was crippled with hanging chads dimpled ballots and faulty voting machines and work within the voting section to address the myriad of issues that arose during that election two thousand and four election enjoyed its share of election administration problems such as the misuse of provisional ballots overzealous poll watcher and ill advised voter purges in light of the problems and issues with the last two presidential elections it is vitally important that the department use the full breath of its statutory authority to act proactively to ensure that our democratic process provides every eligible citizen the opportunity to access the ballot and ensure that that ballot is counted in two thousand and four in my estimation deal jay's perspective was too retrospective in that preventative and ignore an inordinate amount of resources went into election day activities in order to protect the fundamental right to vote the government must act prior to election election day although the voting section dispatched more personnel to observe elections and upgraded its tracking of election day complaints some of the election coverage merely consisted of an attorney with a cellphone in a u s attorney's office in order to have a meaningful presence that will dissuade political operatives from manipulating the voting process to disenfranchise all eligible citizens the department should initiate contact with both state election officials and organizations to engage in a significant exchange of information in a nonpartisan proactive way in my written testimony i have outlined six critical problem areas during the two thousand and four election cycle and proposed steps that the justice department should take to ensure that these problem areas are not repeated this november i will highlight a few of those areas here first voter registration in two thousand and four the department received a high number of calls from persons who stated that they registered to vote yet their names were not on the voter rolls in many instances these persons were new registrants in their voter registration application with mat process to really that to remedy this state election officials should ensure that the counties are processing voter registration applications in a timely manner that apartment justice should provide more oversight to ensure that jurisdictions are not rejecting applications that provide sufficient information to determine the eligibility of an applicant further the department should encourage jurisdictions to do more follow up with voters if the registration application does not provide enough information to determine eligibility voter purges a recent survey of voter purges reveal that two thirds of the responde states did not require elections officials to notify voters when they purged them from the voter rolls denying these voters an opportunity to contest eroni as purges instead of carrying out the primary function of the national voter registration act to increase voter registration the deal j folding section is concentrating its in we are a enforcement priority on pressuring states to conduct massive purges of their voter rolls admittedly states do need to maintain accurate voter rolls and the l j should ensure that these and other purges do not violate the safeguard provisions of in v r a at the same time it should not abandon the in v r a enforcement voter id in two thousand only eleven states required all voters to show some form of identification in two thousand and six the number doubled to twenty two states requiring all the orders to present some form of id any change in rules that affect the voters ability to cast a ballot such as polling changes and voter id can cause voter confusion it is important to note that new voter id laws could adversely impact students in two thousand and four d o j received numerous calls from students who were told that their university id would not be accepted consequently it is essential that the department communicate with states to make sure that they are in compliance with voting statutes and that any changes of voting status or location is clearly communicated to the voter well before the election finally election coverage because of the high attorney turnover in the voting section this is probably the first presidential election for most of the voting section staff attorneys the attorneys who left between two thousand and two and two thousand and six had significantly more litigation and election coverage experience than the present staff accordingly it is crucial that in preparing for election coverage the section should use its pre election calls to ensure that yours dictions are prepared it should release a list of jurisdictions where it will provide election observers at least one week prior to election day it would also limit the recent practice of utilizing the u s attorney's office and the f b i which were primarily trained in identifying election crimes or voter fraud after the two thousand election and certainly by two thousand and two the civil rights division voting section shifted its focus from enforcing the voting rights of minorities under section two of the voting rights act as evidence in the lack of cases brought on behalf of african americans to and to the enforce of section two zero three for language minorities the protection of overseas and military voters on the yoke of a compliance and voter fraud issues this lack of enforcement of the voting rights act would indicate a well documented shift away from enforcement of statutes that require chairman i appreciate the invitation to be here today the largest group of disenfranchised voters in the country by far remain overseas voters particularly military volunteers and their families the uniformed overseas citizens absentee voting act of one hundred eighty six known as  a million ballots were requested so only sixteen and a half percent of the eligible overseas voters sought to vote of that million ballots only three hundred thirty thousand were actually cast or counted resulting in a turnout of only five point five  percent of the eligible overseas voters seventy percent of those ballots were not counted because they were returned the ballots were returned uncompleted ballots were returned election officials as undeliverable the others were not counted because they returned after the deadline for receipt these problems are due to the fact that military personnel move fairly often to new bases in new locations and because of the slowness of the overseas mail system that's still used for these absentee ballots they can take more than thirty days for a ballot to make a round trip between the united states base in iraq for example and coming back and it's vitally important that states mail out absentee ballots at least thirty days before the election and hopefully forty at least forty five in two thousand and two and two thousand and four d o j was forced to file lawsuits after counties in various states such as georgia pennsylvania and texas failed to send out absentee ballots in time for overseas voters to receive them it's essential that the department of justice and the federal voting assistance program office at d o t set up an extensive monitoring programs to survey and track the three thousand plus counties around the country that are responsible for sending out these ballots and make sure that they sent him out in time the f f office also needs to set up an extensive data matching service for election officials to check the mailing address voters they already do this to some extent but they need an automated service that can handle large lists of voters and can send e mails to service members notifying them of the problem the mail delay could be cut in half through fifty six seventy three that's the military voting protection act which has been introduced in congress and which would provide international express mail pickup of overseas military ballots for return to the u s another problem we have are non citizens both illegal and legal residents unlawfully registering and voting in our elections election officials have no systematic way of checking citizenship of registered voters but there are enough reports of specific incidents convictions and other cases from various states to leave no doubt that aliens are illegally participating in our elections in one thousand nine hundred five the regional ins director in illinois testified that there were twenty five thousand illegal and forty thousand illegal aliens registered in chicago elections half of the nine eleven hijackers were registered to vote d h h s has consistently refused to cooperate with local election officials and checking the citizenship status of registered voters this is a violation of  thirteen seventy three and it should be investigated by congress local and state election officials should be given access to the same electronic databases maintained by d h s such as a verifiable are used by employers to check citizenship status of prospective employees and the n b r a ought to be amended so that it requires district court clerks and federal court to notify election officials when jurors summon from voter registration lists are excused from jury duty because they are not similar citizens that would be similar to section eight g b of the n b r a which already exists and which requires u s attorneys to notify local election officials when individuals are convicted of federal felonies a number of states such as ohio iowa south dakota are violating section three zero three b of hava that's the provision that congress added requiring individuals who register to answer a citizenship question the states are registering individuals even when they leave this essential question blank another problem is that state d m v in order to comply with as they believe it automatically offer voter registration to every individual comes in for a driver's license without distinguishing between individuals who are coming in who are not u s citizens i would conclude by saying while all of these are problems that need to be dealt with overall we have an election process i think that we can be proud of and one that does strive to enfranchise all eligible americans so they can vote and it's something we should not lose sight of as we do continue to work to improve our democratic system  thank you mr he does recognize five minutes thank you mr chairman chairman adler ranking member franks and members of the committee thank you again for the invitation opportunity to appear before the subcommittee today and in addition of course to data entry slight differences in data inclusion of a middle initial of a maiden name hyphenated names and so on it results in a large number of mismatch records and consequently there's a real danger that on election day in two thousand and some people may go thinking that they registered to vote and in fact due to the mismatch they will find out that they are registered to vote it's important to note and i think this is the key  and congress obviously intended that when the results and i'm quoting here the results indicate the registrant is not eligible provided inaccurate a fraudulent information or information cannot be verified then the application example in two thousand and six a recent study showed that if you were a latino when you went to the polls to vote more likely to be required to produce an id than if you were an anglo asian americans report those same kinds of problems on election day so i think discriminatory way if everybody there is a voter id requirement everybody should be required to produce it and if there isn't one then there shouldn't be required to produce one at all now let me finish on one one final topic and that conduct investigations until after an election so they won't run the risk of being accused of trying to interfere with it finally let me just say that little came out recently at the civil rights division and criminal divisions voting symposium at the justice department for their plans for monitoring this year's elections congress should insist that everyone from attorney general mukasey down to civil rights division acting assistant attorney general grace chung becker down to the voting section chief christopher coats explain in detail their plans to monitor elections in the months ahead and they should be required in advance of the elections to follow up with more detailed information when we get closer to it given the level of politicization of the justice department that is the least that we should you again for the opportunity to testify thank you mr he very well now go to the questioning and i will recognize myself for five minutes for the purpose of a of questions first mr hubert in reporting on the supreme court decision in the indiana voter id case in april the new york times quoted as saying quote this decision not only confirms the validity of photo id laws but a completely vindicated t bush justice department interview to those critics who claimed his department somehow acted improperly when the prove george's photo id law in two thousand and five was quote do you take issue or do you agree with that statement and if so i completely disagree with that statement for the following reason the supreme court in the indiana voter id said that the statute in indiana was facially constitution there were no allegations that the indiana statute violated the voting rights act which was the decision the justice department ma e when it approved the georgia voter id in georgia the voter id law that was approved by the justice department was divine switkowski was part of that decision making process when they approved that voter id law that was later struck down in not have been called the poll tax that's correct because in georgia they actually required you to buy an id in order to vote and in indiana it was provided free i thank you mr speaker i have skied in may of two thousand five outgoing deputy assistant attorney general bradshaw i was lessees of the department issued that letter opinion to the state of arizona that letter wrongly informed arizona that it could stop voters from receiving a provisional ballot if they did not have state he had nothing to do with the drafting of the may two thousand and five letter was probably done by quote the voting counsel in the front office was that you i was the voting counsel in the front office drafted the letter ok now during that year did you have any communications with the state of arizona with the secretary of state of arizona in relation to arizona's proposition two hundred  and i don't recall i mean at some point the proposition two hundred was submitted to the civil rights division for pre clearance under under section five and of course one of my responsibilities was  you know reviewing any claims or files that came up from the voting section on section five so i you know whether someone at that office called about that maybe but i mean that was and really four years ago i frankly don't remember and the year later in two thousand and six when you were at the f e c if you've any communication with the department of justice or the state of arizona about proposition two hundred implementation and now some ok and a bit curious about something else it's this that was because before i went to work for the justice department is that prior to two thousand now it's been reported that the voting integrity project played a role in the florida efforts to you know that my understanding of that just from reading the papers is the state of florida hired a data data service company i don't remember the name of it too to provide them with the left but i had absolutely nothing ok that that's one of these stories that somehow got onto the blogosphere and then got repeated all over had the rules it's not true good to good here now critics have called the vote approaches in florida during the two thousand election a wildly in restored by state action now what can we do to ensure that as states purge voter lists that those purges don't and in fact it was reported that that twenty percent error rate was known in advance and somebody in florida my goodness you have no idea what you know but the someone in florida term that that was acceptable that a twenty percent error list meaning one out of every five people on that list would be improperly to deny the vote that was acceptable you to deny the vote to people who should have been denied the voter on the list what can we do to make sure that voter purge lists are accurate and are not used either deliberately or not deliberately  to deny the votes people who should be able to forestall the not expert on florida because i wasn't election official in florida in two thousand and they're going to do with it up but i'll tell you what i think about it there's the mistaken assumption here that's being made is that when the states because of these new hobbit databases which require them to do data matching that they automatically drop people when the information doesn't match that that's not what they're doing what  my understanding is what the states do when they get a situation like this and this is any different than when a county election board for example gets information that there may be a problem with with a particular registered voter the actually the information my understanding is what do they do when there's no matches they then contact the voter either by calling the voter the register the person who's registering or by sending them a letter well we try to get them we've heard testimony that they should but clearly some and some don't ok well what should happen when what should happen when a match comes back and shows there's a problem with a voter registration application is that election officials contact the voter and explain it to them say look we've got this problem when you pride and there should be there there should be a communication with the vote of course of course mr ebert could you just briefly since my time is basically expired  comment on the question i asked and if you want i mean i mean it's because he's answered right i agree with him that that's the election officials should contact the voters but it is not happening in all instances it's not happening in all states and what often happens is when the communication is done it's done with a letter that oftentimes may arrive to the voter in a time period that insufficient for the voter to take whatever corrective action is necessary in order to provide the information that allows the match take place and so they are not registered within the time period required well let me let me just follow that up with one further question should the justice department do something in time for this election to make sure that that problem doesn't occur and if not should congress do and yes the justice department should do something and here's what should be done any person who was duly registered to vote but their name is not able to be matched exactly on the state database there ought to be that person ought to be listed on the registration rolls and when they go to vote they should have an asterisk next to their name saying hey by the way we want able to match up your data and here's the here's the information what can you tell us you know what is your hyphenated name is it a maiden name how do you and you it that way you don't deny people the right to vote and congress put a man but to make that i thank you my time is expired and i recognize it five minutes the distinguished ranking minority member of the subcommittee the gentleman from arizona mr franks well thank you mr chairman thank all of you for being here mr von spakovsky i wanted to just kind of explore a couple of things with you related you know i have to i'm on the armed services committee and i have to tell you that it does hit me pretty hard that those if you're correct that those overseas are the the ones it seemed to have the least success at voting oftentimes those are our fighting men and women that to you know lay their their lives and their blood down for this country and people on this panel in the most of us talk about freedom those those individuals pay for it some profoundly high prices to themselves and so i guess what i want to ask you is why why of what is is really causing a problem who's at fault here that's the first question i ask why aren't  to start with the military why are they getting their ballots the problem frankly congressman is because the military voters are still voting the way they did one hundred years ago you know the way the way if you're if you're a combat soldier in iraq what you have to do to get an absentee ballot is you have to send a request for an absentee ballot back to your home election official you know if you're from a county in texas so you've got to send that to  the county official in texas requesting an absentee ballot you know they check it and then they prepare an absentee ballot and then they have to mail it back to you in iraq when you get it in iraq you complete the ballot and you have to mail it back that takes a lot of time particularly because the slowness of overseas mail and because once you get into a combat zone the mail gets even slower getting through that's why a large number of these ballots even the ones that are completed are returned to late to count in the election several years ago congress authorized an appropriation for the department of defense to try to build an electronic voting system based on the internet which would electronically deliver a ballot to a soldier's soldier be able complete it and send it back that system was canceled after a number of computer scientists took a look at it and said that it was not a secure enough system a lot of people say the internet simply has too many security holes to ever use it that way and that's why i mentioned the military protection act that's kind of an a good interim step that would provide so that once the ballot gets to the overseas military bases it would provide international express service to get it back that would mean that as long as the soldiers got the ballot by the friday before the tuesday election it could get returned in time to be counted the future for this i think is shown by a pilot project that's going to go on with this election out of okaloosa county okaloosa county is a big county down in florida they have a lot of military voters and the county election officials there are sending some of their election officials to three overseas military bases where they have a lot of soldiers and they are going to open up an early voting site using computers where one of the military voters can come in they'll check to make sure they're on the voter registration list they'll pull up the ballot they are supposed to get and they'll be able to vote right there and setting up early voting sites at u s military bases and perhaps u s embassies in the future actually might be one way of greatly resolving this issue and if we were to should say if you were to tell us what you think we could do either on the armed services committee or the judiciary committee here to to in the short term affect this in the most expeditious manner to help those who defend this country have the best opportunities to vote in the elections what would that be the first would be to pass that bill that's been introduced to provide for international express pickup of the ballots overseas to bring it back to the u s and i think the other thing would be to push the federal voting assistance program office that's the o that they know or you acaba voters who are supposed to get absentee ballots they ought to be able to send that list of five hundred voters to the f fap office f ab office runs it through the directory that shows where these people are currently located and they correct any of those addresses that they receive send them back to the local election officials of the local election officials get the ballots to the right location mr chairman it seems to me that you know the u s military has one of the most are particularly both parties understand that so that we don't have the situation that i think best because you talked about earlier which is i think would be very unfortunate if we have a very close can you summarize what you just told me is the second problem the two you bring to our attention the second problem was that there are cases from various parts of the country that indicate that individuals who are not u s citizens both legal and illegal are registering to vote and have voted in some elections and that is something also that i think needs to be fixed have you found a major problem sorry what is is it a major problem absentee voting fraud i don't think absentee voting is is very vulnerable to voter fraud and they're going to many cases from around the country  help us develop a frame or around which we can encourage the department of justice voting section to get on the stick  rather than do this this of after problems pop up and and things that are quite clearly predictable occur and then they rush out to deal with it but the damage of course has been done to the day and the day after the election isn't going to help us much in trying to clear it up and so you've been very very important  helping us develop a process and and some recommendations to bring to attorney general mere casey as to how the voting rights section oughta be operating you've pointed out that a lot of the people are new and mr a bear has pointed out a lot of a lot of the old people that we probably were kind of happy have left but the new people don't have much experience either and so this discussion is very important to me because i'm going to grand rapids on sunday afternoon to speak with the secretaries of state and it's i want to be able to give them the benefit of the discussion that's going on in this hearing to me it's very important and both your suggestions will be incorporated in and what i'm going to tell them about what i see how we can work with them and i was wondering if you you have any recommendations as to things that we might want to put in our comments because where we got a lot of problems out there in the states because a lot of voting practices get off to the wrong foot by the things in ohio the secretary of state you congressman conyers i think we should operate from the perspective that if we knew then meaning if we knew in two thousand what we know now would we do things differently and i would hope that we would and certainly since the department of justice knows more now than it did into two thousand there are certainly ways that it can alleviate many of the problems that occurred such as the ill advised voter purge in florida or the voter registration problems as well as the faulty voting machines and i've outlined in my written testimony a number of things that that can be done and i also would suggest strongly suggest that this body recommend to the civil rights division voting section that they would begin a proactive approach such things they've done in the past for example in two thousand and four in july and in september they sent letters to all of the secretary of state saying that they are discussing your cava compliance and at that is something that could be done now in discussing in sending a letter to the secretary of state saying here the issues that we have seen in two thousand and four and in two thousand six issues with voter registration issues with poll watchers overzealous poll watchers which which would cause more thoroughly i would think i would argue were primary cause for a number of the problems within the polling place in in two thousand for having overzealous poll watchers challenge eligible voters and then having poll workers who did not know how to respond and requiring people cast provisional ballots  that may or may not have been counted so there's certainly a number of recommendations that could occur and certainly again i would there are things that can do and things that they have done in the past that they should continue to do but they must be proactive and must that has been the cause of the lack of you talked about the lack of voter confidence there certainly is a lack of confidence among civil rights organizations in the department of them particularly the civil rights division and ensuring in knowing that it can be trusted well the idea that division did not meet with civil rights organizations i believe is incorrect i worked for all three of the assistant attorney generals who were head of the division  and all of them met extensively with civil rights organizations i recall that and i remember the exact date i think summer of zero four mr costin was my boss at the time had a  very large meeting with a large group of civil rights organizations to explain to them the procedures that the department was going to put in place for the upcoming election and how they were going to make decisions on where to send observers and you know comments suggestions from those organizations i agree with this daniels that they should do that and i think i i think they will thank you very much which thr cost i worked for all three of them before richard ministrations where those i'll talk about in this administration oh ok that's wonderful and by the way i've discussed this with trent franks and he's agreed the we and i'm going to discuss it with the rest of our committee members on both sides so that we might come in and talk with us about how we make our recommendations to the department of justice so that we don't come up at the last minute statements and guidelines that may be too late to be implemented or be  rights organizations and voting rights groups and others but you have to do more than just meet you have to kind of agree on what the procedures are going to be at the department of justice when you encounter a real problem say like vote as the chairman knows all too well so that would be a recommendation they are and you have three former d o j officials here on your panel now and i'd be happy to offer whatever advice i would say that if you're meeting with secretaries of state i would say that you know hava should not be the up as necessary to combat voter fraud but i think the case for voter fraud is largely overblown to the extent there may be voter fraud it's most often committed to the absentee ballot process and not through in person voting so therefore voter id laws really don't get to the real root of the as you know mr indiana law didn't even address absentee ballots it did not that's correct now here's something that happened on may seventh in the indiana election a dozen nuns and other unknown number of students were turned away from the polls tuesday in the first use of indiana stringent voter id law since it was upheld last week by the united states supreme court you want to stop nuns from voting why don't you want nuns to vote most of on congressman ellison i'm just curious to know that they have worked knew that they had to get an id they could have easily done so they could have voted by absentee have the government issued id that's ok with us and the woman who was right all right all the nun refused to give them provisional ballots which was a violation of federal law she was obligated as a local election official to provide them  was all willing to do it because she didn't want to have to take them down to the local election office where they could have by affidavit sworn to who they were and their vote would have counted so a ninety eight year old  to hear the turnout from the may sixth election when i have a question i'll pose it to you mr just like the answer you want to give i'm going to ask you to stop cutting into my time thinking well you're not allowing me to answer the question polls who is perfectly eligible to vote otherwise what america should be doing in terms of encouraging voters elect we should not be making it more difficult for people to vote in the case of the nons they have been voting for many years they were all duly registered to vote yes i suppose they could have been offered a provisional ballot but then they would have been required to go a second step and go down later to the voting office and produce actually identification i think that you know we've reached a point in this country where we should really really stop and think about if we're really going to try to spread democracy in the world we should try to correct the imperfections of our own democracy here at home by making it easier for people to vote not making them jump through additional law students what kind of what type of democracy would they like to create if they want to create a democracy where persons are restricted or dissuaded from voting you can do that by creating restrictive voter id laws by having provisional ballots making people making it more difficult for people to want to create i think we're really moving in a direction i agree with mr he but they were certainly moving in a creation moving in a direction where making it more and more difficult for people to participate in a democracy most of us have another question for you did you ever experience frustration with u s attorneys because of their inability or unwillingness to go after voting fraud cases i had nothing to do with the u s attorneys the u s attorneys are part of the criminal division of the department of justice i worked in the civil rights division which has nothing to do with the u s attorney if you ever experience frustrate sions with u s attorneys who refused to prosecute what you believe were voting fraud cases you can experience prostration without having without without being a u s attorney or with them in charge of u s attorneys congressman i wasn't in the criminal division so i wouldn't have been advised or been given any information about any voter voter fraud investigation so do you acted by the u s o did you did you ever contact any u s attorney or anyone who supervise u s attorneys regarding voter fraud cases  that's a yes or no if it's no no no the and the answer to that is that occasionally and both of my compatriots here the table know this u s attorneys would get  calls directed to that about a voting issue and they would take a look at it and if it was not a criminal matter if it was not a criminal election matter but if it was a civil rights matter they would direct the call to the civil view but was something that we should look at so that's a yes thank you now were you part of the discussion that u s attorney helpful finger of minnesota should be fired because he expressed deep concern about the effect of  directive that could have could have discouraged indians from voting in minnesota i don't recall being part of any such conversation if you ever discuss attorney general have i mean u s attorney have a figure in connection with voting fraud cases in any part of discussions relating to the failure of the scope in what in wisconsin or john mckay in washington or john gray's in missouri to bring election related prosecutions no sir because i was not in the division that the u s attorneys were in and did you ever discuss these issues or relate your views about them in terms of these prosecutions no and what involvement did you have in the voting prosecution brought by brad saltzman in missouri i had not i was at the federal election commission why would i have had any involvement with something department of justice was doing when i wasn't even working there partly because you have an obsessive fear that people might vote who you don't want to contact the u s attorney's office to try to stop folks from voting and then so on the n s a that's a fantasy that you're making up cause and so i'm as i know i had nothing to do with the federal prosecutions going on and by the department justice when i was at the federal election commission that's ridiculous well i'm asking you you answer you're on record now and we'll see whether it matches up with the facts are you accusing me of lying congressman how mchugh i'm asking you questions sir haven't you been here and i'm telling you that that's a ridiculous question and i would have nothing to do with federal prosecutions when i was even working and you start yourself on record and that's fine and we'll check it out you go ahead and do that we'll play on it disenfranchise eligible citizens what did you mean by that what i mean by political operatives manipulating the voting process one example would be the use of poll watchers state can determine who can who can who can witness the actual casting a ballot they can tell you who lost a term and who can watch the actual polling process and in two thousand and four there was an onslaught of republican and democrat poll watchers within the polls and in some instances there were more poll more poll watchers than poll workers or even voters and it was certainly instances persons on a racial basis as well as whether they spoke english well with men challenging language minorities as well as in some instances african americans and i think that's an example of political operatives meaning people who were placed there for political purposes to instead of being there to ensure that the process was handled fairly where there strictly to challenge persons based on race in language another example would be vote caging which is a process that you all have or you all are familiar with where a person's poll watchers may have a list of voters that they are there to challenge that because of they may have sent them a mailing they both were turned on deliverable and ape specifically target areas in this instance in two thousand and four republicans with specifically targeted areas african american areas and when those persons came to vote those persons would challenge in it that thank you mr hayward what's wrong with requiring all potential voters to have their citizenship well the biggest problem is that right now most of the voter start out by saying that the department of justice actually some of the ohio problems in franklin county and found that the long lines in franklin county i think i cited to this letter in my testimony my written testimony actually said that they were a result of the failure to provide adequate numbers of machines at the polling locations and in fact one of the documents mr blackwell submitted with me as a news article where the democratic franklin county board of elections  believe franklin county for more voting machines to mr blackwell in advance of the election and he turned it down i'm going to try to verify because that's my recollection of what happened in two thousand and four i don't think long lines for voters were ever a good  election the turnout in ohio was i think one of the highest in the country and it's very clear that the election officials there frankly got flatfooted when they were doing the allocations based on voter registration rights and prior turns out that it's more about art than a science when a local election officials try to figure out how many voting machines to put an age thing on the other hand you know we should keep in mind that  as i understand it they've had the same number voting machines for a number years and from like one thousand nine hundred six through the two thousand and two election they hadn't had any problems now i agree i don't think people should have to wait in line for a long time and i think election officials have to do a better job of looking not just at past turnout but look at the voter registration rate as it's progressing through the year when they're trying to figure out how many machines to put out but again and that brings up one other issue because i used to be a county election official you know we were dependent unfortunately the county commission providing us with the kind of budget we needed to buy election equipment and one of the problems with a lot of counties have is that they don't get enough money from their county governments and from state legislatures to buy all the kind of equipment that they need does it concern you that the flat footed in this tended to have a protest and aspect to it well i have to agree with secretary blackwell about the issue that the decisions on how many machines to put in and into all those counties was made on a bipartisan basis and and for example  problem at the college precinct in one of the counties that particular precinct if i recall correctly had three times as many individuals come in to vote as they had in the prior election and the local county quickly got paper ballots to that precinct so that people would not have to wait in line to use the voting machines and as i understand it both the chairman of the county republican party and the chairman of the county democratic party both showed up at the precinct and nine o'clock two along with local election officials assure the people who were waiting in line that they could vote on the paper ballots and they would be counted just the same as the voting machines but apparently some people who were there i think some of the were some by professors at the local college unfortunately told everyone in line that no they shouldn't vote the paper ballots they would be counted basically gave  information that situation would resolve itself and that was a good example of bipartisanship i mean both party chairs went down there to try to get the situation resolved and tell people look they could vote these paper ballots they would have to wait in line a situation would fix itself and unfortunately it is regrettable that they had to stand in line for that long to vote i certainly wouldn't want to do that mr scott let me just say that i don't think that i'm going to live here and testify under oath that i would blame the kenyan college students because they had to stand in line till four in the morning and ultimately get to vote i think one of the positions was that they were they felt they were entitled to vote like everybody else on a machine that would record their vote and my understanding was that a number of them said i don't want to vote a paper ballot i want to vote the way everybody else votes and the county had an obligation to provide those machines i would say mr chairman you'll appreciate this remark perhaps more than anybody on the panel given your long tenure in the congress and having seen so many elections come and go it's interesting you ask about a part of this problem about voting machines there wasn't a lot of big allegations coming out of ohio that it was and i still don't co incidence secretaries and state election directors i mean they ought to get together and see if there isn't a way that they could come up with a system but the question is would you go impediment there is there is a federal law i think that would have to be changed don't necessarily believe in the people that think that but i was just wondering if that wasn't a trick question i actually agree that's the one shining example of the things that you all have agreed on and i definitely agree that we ought to be providing opportunities for us wherever they are and the technology now it seems to me is available to do that actually i think technology is available for somebody who lives in north carolina who happens to be in california only election day to vote if we were really committed to  the proposition that people ought to be allowed to vote rather than committed to the proposition that we gotta make it more difficult i never have quite understood the registration requirement  let me turn to back to the question that i was so disappointed with mr blackwell about his answer i guess my real concern about the two thousand and eight election  which is that massive numbers of people are going to be standing in line waiting for hours disproportionately in various places that we would really like to be incentivizing them to vote for change on college campuses in minority communities his answer to that  if you don't have a problem and i'm not even going to ask you to comment on how to solve it if you don't believe it's going to be a problem at all i probably i probably agree with you that we're going to have but ok that have switched to optics can ballots they are going to really have a problem with getting ready for a high turnout election because it's frankly very easy to print a larger number of ballot paper ballots and get them to the precincts where they're needed because the way the system works is you know as the voter gets a paper ballot she fills it out and then before they leaves the precinct they run it through a computer scanner which able to print the larger number of ballots they need for a high turnout election the problem is going to be and i think it's probably about a third of the country that switched over entirely to electronic voting machines because each electronic voting machine you know it's basically a computer they are a lot more expensive than getting paper ballots printed and those jurisdictions that have a certain number of electronic voting machines i think will have a tough time between now and the election if they decide they need more of those electronic voting machines all keep describing the problem to me i keep asking you what the solution is and well  i i think there is a solution for the states that have switched to optus campaign ballots i think the states that have switched to electronic voting machines are going to have a problem because i don't think they are going to have the money to buy the additional machines they need and frankly i'm not sure that the companies that produce it have the manufacturing ability to produce enough machines if they decide they need a lot more so we just don't have a chaotic november election m to hopefully alleviate the problem for covered jurisdictions for example if they are making a submission where they are reducing the number of polling places it is viewable in two thousand and six there was actually an objection add one other thing i mean places that have voting machines and electronic machines that break down you have to have a sufficient number of paper ballots as a backup in case there's a problem power failure or whatever another way to alleviate the problem of overcrowding at the polls is to when people come in allow them to go and cast the paper ballots just to get them away from the table that mr scott's mentioned time is up but  justice department can do there what we can require our state attorneys general secretaries of state local precinct  all will come up with some written suggestions to us about practical things that we just make me a list of things that we should be asking the attorney general to ask whoever down the line back at thank the chairman for generosity one one i did think of one further thing it doesn't necessarily relate to overcrowding but it relates to a question that mr franks posed earlier and that is the currently the secretary of the veterans affairs department has refused to allow voter registration to occur at v a facilities by nonpartisan groups now these are the all these are people ultimately who perhaps paid the ultimate sacrifice and they're recovering and maybe they're not registered to vote shouldn't we go out of our way to do everything possible and i would ask you to write to the secretary of veterans affairs and demand that these people be allowed to be given the opportunity to register register to vote hopefully afforded the right to cast their ballots so that would be one final excellent recommendation i want to thank professor daniels one hundred in two days before november fourth and i think i think this hearing has been extremely worthwhile in terms of fleshing out the we're going to have to