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20–790 2005

2004 ELECTION AND THE IMPLEMENTATION OF 

THE HELP AMERICA VOTE ACT 

HEARING 

BEFORE THE

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

HEARING HELD IN COLUMBUS, OH, MARCH 21, 2005 

Printed for the Use of the Committee on House Administration 

( 

(II) 

COMMITTEE ON HOUSE ADMINISTRATION 

BOB NEY, Ohio, Chairman 

VERNON J. EHLERS, Michigan 

JOHN L. MICA, Florida 

JOHN T. DOOLITTLE, California 

THOMAS M. REYNOLDS, New York 

CANDICE S. MILLER, Michigan 

JUANITA MILLENDER-MCDONALD, 

California 

Ranking Minority Member 

TOM BRADY, Pennsylvania 

ZOE LOFGREN, California 

PROFESSIONAL STAFF

PAUL VINOVICH, Staff Director 

GEORGE SHEVLIN, Minority Staff Director 

(1) 

HEARING ON THE 2004 ELECTION AND THE 

IMPLEMENTATION OF THE HELP AMERICA 

VOTE ACT 

MONDAY, MARCH 21, 2005 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON HOUSE ADMINISTRATION, 

Washington, DC. 

The committee met, pursuant to call, at 10 a.m., in the Finance 

Hearing Room, Senate Office Building, Columbus, Ohio, Bob Ney 

(chairman) presiding. 

Members present: Representatives Ney, Millender-McDonald and 

Tubbs-Jones. 

Mr. CHAIRMAN. I want to thank everyone for coming. Also I want 

to thank you for your indulgence. We had a vote last night and I 

did my best to get here. Three airplanes later, due to mechanical 

problems, I am here. I apologize for something out of my control; 

it is a pleasure to be here. Again, I want to say how much I appreciate the Clerk of the Senate Matt Schuler and all the staff of the 

Senate making the use of this room possible. This used to be my 

office over to my left when I was Chairman of the Senate Finance 

Committee so this is old home week. This was the temporary floor 

of the Senate. It is always a pleasure to be back here in the legislature where I got my start before I left for the U.S. House. 

The Committee will officially come to order. We are meeting here 

today, in Columbus, to take a look back at how the 2004 election 

was conducted in Ohio, and to hear about how the Help America 

Vote Act, known as HAVA, is being implemented in this state. 

We have already had hearings in Washington, D.C., and will 

have hearings throughout the different parts of the country. During 

the course of this hearing we hope to learn more about what went 

well during the most recent election and what needs improvement. 

By gaining greater understanding about what happened in the past 

election, we hope we will be able to assure the effective administration and successful operation of Ohio elections in the future. 

On November 2nd of 2004 our nation conducted the first federal 

general election governed by the requirements and instructions set 

forth in the Help America Vote Act of 2002. The Help America Vote 

Act was a landmark legislation reform law that established new 

election administration standards that each state must meet. It 

also provides crucial federal dollars for the first time in the nation’s 

history, to assist states and localities in updating and improving 

their voting systems. 

2 

The Help America Vote Act specifically grants states and localities broad latitude to interpret and implement its provisions in 

ways that take into account unique local circumstances in each 

community. I am proud to have been the author of this important 

piece of legislation, along with Congressman Steny Hoyer, who is 

also the Democrat whip of the U.S. House, and Senators Chris 

Dodd, Mitch McConnell, and Kit Bond. I believe that the Help 

America Vote Act will greatly enhance the health of our democracy. 

HAVA had a great bipartisan vote, and a lot of members involved 

in putting the bill together. 

As Election Day 2004 approached, election officials across the 

country faced numerous logistical challenges. Nowhere were those 

challenges more apparent than here in our own state of Ohio. 

First of all, Ohio was the target of aggressive voter registration 

drives, many of which were conducted by outside groups that paid 

their employees per person that they registered. These drives resulted in election officials having to process and handle a greater 

than usual number of voter registration forms, a substantial percentage of which were submitted at or just before the prescribed 

deadlines, and several of which were defectively or fraudulently 

thrown out. 

This placed an administrative burden on Ohio’s election officials. 

In addition, election officials confronted the highest rates of voter 

turnout since 1968. The Committee for the Study of the American 

Elector estimates that roughly 120 million citizens cast ballots in 

the most recent federal election—nearly 15 million more voters 

than in 2000. 

In Ohio alone, the turnout rate was over 10 percent higher than 

the rate during the previous presidential election cycle, which 

translated into almost one million more Ohioans voting in 2004 

than in 2000. 

Finally, during the past election cycle Ohio had an extensive debate about the security of direct recording electronic devices, 

known as DREs, voting systems and ultimately passed a law requiring DREs to produce a voter verified paper audit trail, or 

VVPAT. 

Without getting into the merits or demerits of the new law, it is 

safe to say that the paper trail debate and the new VVPAT requirement removed the possibility that Ohio could replace its punch 

card systems with more reliable voting equipment in time for the 

2004 election. 

In the weeks and months leading up to election day, we heard 

scores of gloomy predictions about an impending electoral meltdown in our state. We were told that voting equipment malfunctions would be widespread, delaying the reporting of election returns, and potentially losing thousands upon thousands of votes. 

There were also allegations that a mass voter intimidation and 

suppression effort would disenfranchise many voters. Some forecasted that all these factors would combine and create a perfect 

storm that would paralyze the country’s election systems. 

Thankfully these gloomy predictions did not come true as the Associated Press reported. The big surprise of the 2004 election was 

that, for the most part, the voting went smoothly. By the close of 

the polls across the country, despite heavy voter turnout, there 

3 

were only scattered reports of equipment trouble and human error 

at the voting stations, and none were major. 

This assessment was confirmed on election night by Joe 

Lockhart. Normally I don’t quote Joe but I will today, the Kerry 

campaign spokesman and strategist who said, ‘‘We think the system has worked today. There were thousands of lawyers deployed 

to make sure that no one tried to take advantage or unfair advantage and by in large it has worked. I have seen very few reports 

of irregularities and even the ones we have seen after a little investigation you will find there is not much going on.’’ 

Thus, to paraphrase Mark Twain, the rumors of the demise of 

the American electoral system in general, and the Ohio system in 

particular, are greatly exaggerated. 

For this, we must give enormous credit to the state and local 

election officials in Ohio, on both sides of the isle, for their hard 

work and extensive planning in preparation for this year’s election. 

We must also express tremendous gratitude to the thousands of 

volunteer poll workers and election judges, without whom the election process could not function. The accomplishment of those involved in the administration of this year’s elections are especially 

impressive in light of the intense scrutiny under which they were 

operating. 

All of this is not to suggest, however, that no problems whatsoever were evident in Ohio during the 2004 election. There were 

some difficulties. As in any undertaking involving millions of people taking place on a single day in a large state such as ours, there 

are bound to be some mistakes. It is important that we learn from 

those mistakes so that they aren’t repeated. 

However, contrary to the overheated assertions of some, the voting problems that occurred in the state, I feel, did not disproportionately impact the voters of one party nor the other, but rather 

affected voters through all political parties, Democrats, Republicans, and Independents alike. 

Again, we want increased voter registration. In terms of the Help 

America Vote Act, it directly affected a lot of issues but it did not 

particularly impact the exact particulars of how the state of Ohio, 

for example, would register people to vote and still follow state 

laws. 

I think that with HAVA’s voting system standard set to go into 

effect in just over eight months, I am especially interested today 

to hear from a good panel of legislators in discussing how Ohio will 

meet the compliance deadline. As I mentioned earlier, the paper 

trail to date the new VVPAT law has significantly delayed Ohio’s 

acquisition to voting equipment as well as its ability to come into 

compliance with HAVA’s voting systems. 

Consequently, there is an urgent need for Ohio state and local 

election officials and leaders in the state legislature, to sit down 

and with colleagues and figure out how to resolve the situation. 

We are fortunate to have a number of distinguished witnesses 

with us today, many of whom were at ground zero of the most recent election. Our witnesses include a fellow member of the Ohio 

Congressional Delegation, Congresswoman Stephanie Tubbs Jones, 

who we serve with in our nation’s Capital, our distinguished Secretary of State, members of the Ohio legislature who will be introVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 E:\HR\OC\A790.XXX A790
4 

duced, local election officials from across the state, and scholars on 

issues relating to Ohio’s election. 

Before yielding to our Ranking Member, I want to thank Senate 

President Bill Harris for making this room available again for today’s hearing. It is a little bit of deja vu for me because of the years 

that I served here in the legislature. 

Before yielding to our Ranking Member, I want to thank Congresswoman Millender-McDonald from California, who is our Ranking Member of the House Administration Committee. It is the 

smallest committee of the U.S. House, with six Republicans and 

three Democrats. 

We are directly appointed by the Speaker of the House Denny 

Hastert, and our Ranking Member and her colleagues are directly 

appointed by Leader Nancy Pelosi of California. We represent the 

two leaders of the U.S. House. We oversee the Library of Congress, 

the Smithsonian and parking spaces, which is a big deal in Washington, D.C. We are trying to diminish that. 

I have enjoyed working with my colleague Juanita MillenderMcDonald on the serious matter of election law, as she has been 

a real supporter of the institution of the House. She is our new 

Ranking Member. I really appreciate her time in traveling all the 

way here to Ohio. 

Gentlelady. 

Ms. MILLENDER-MCDONALD. Thank you so much, Mr. Chairman, 

and thank you for convening this field hearing in your home state 

of Ohio, as well as the Congresswoman who is before us. I would 

like to also thank the Ohio officials and state staff for their generosity in allowing us to be here today. 

I hope to continue the dialogue and review of how the Help 

America Vote Act was implemented and how the first post-HAVA 

election was conducted. We must take our hearings wherever necessary to help the American people regain their confidence in our 

electoral process. 

Ohio was at the epicyte of the 2004 election. It was on the news 

virtually every day for weeks, both before and after the election ultimately giving President Bush the victory for a second term by 

less than 120,000 votes. While the margin of victory was outside 

the parameters of litigation, it does not mean that we should ignore 

the problems that were reported. 

As a former educator, I hope that the nation and Congress will 

learn from this past election and the lessons from Ohio. In the 

107th Congress this Committee was the driving force in passing 

legislation to ensure that the problems brought to bear during the 

2000 presidential election were not repeated. After that election we 

heard reports of a wide range of voting frustrations and irregularities. 

Most common were punch cards with hanging or pregnant chads 

and voters were turned away from the polls without being given 

the opportunity to cast a vote. With the passage of HAVA 3.9 billion dollars were authorized to the states to improve the voting 

process marking for the first time in our nation’s history that the 

Federal Government paid for the administration of federal elections. 

5 

Additionally, states have shown that the entire burden of cost, 

sometimes having to decide among funding and maintenance of 

roads and infrastructure, the construction of schools or the management of elections. The Federal Government has provided three 

sources to alleviate these very important concerns. 

Ohio ranks fourth among all states and territories in total money 

received from HAVA. However, HAVA is not a blank check. States 

will only receive money if they can demonstrate compliance with 

HAVA’s strict requirements. Yet, despite the HAVA intent, some of 

the same problems brought to light in 2000 occurred again in 2004. 

These problems were not unique to Ohio. 

According to the Election Reform Information Project a nonpartisan/nonadequacy organization providing news and analysis on 

election reform, the problems range from long lines at polling stations to a shortage of machines to misinformed poll workers. 

The Committee worked tirelessly to enact HAVA as a solution to 

these and other election concerns. The Help America Vote Act set 

standards so voters were not turned away from the polls without 

casting a vote. Also, that voters not listed as registered must be 

given a provisional ballot to be verified later and counted. Unfortunately, these were reported that eligible voters were being turned 

away from the polls without casting a provisional ballot. 

Further, many overseas and military voters reported that they 

did not receive their ballots in time to vote. Some did not receive 

their ballots at all. We can, and we must, do better. Especially for 

our men and women fighting for democracy in Iraq, Afghanistan, 

and around the world. My staff had the opportunity to speak with 

many numbers of Americans living abroad and listened to their 

voting experiences. 

Although the 2004 elections have passed into history, many questions are still unanswered and electoral issues need to be discussed. The electoral process is not perfect. Improvements to the 

electoral process still need to be made. Fortunately, the Help America Vote Act of 2002 is a solid foundation upon which we can institute further electoral improvements. 

I would like to stop to thank this Chairman and the Ranking 

Member then, Congressman Steny Hoyer, for their leadership on 

bringing such an important piece of legislation as HAVA to the 

country because it has made a difference in many states and we 

are hoping that it continues to make a difference. 

HAVA was to make it easier for voters to cast a vote and harder 

for people to knowingly commit fraud. It has eased the financial 

burden of state space in preparing for and administering federal 

elections. In addition to providing the $3.9 billion to the states, 

HAVA requires that state election officials accomplish two landmark goals by the beginning of next year. 

First, every voting precinct in the United States must have at 

least one voting machine or system that is accessible to individuals 

with disabilities. This mandate will allow many disabled voters to 

cast secret ballots for the first time. Second, by the start of 2006 

every state must implement a uniform centralized computerized 

statewide voter registration list. 

Beyond my continued support of HAVA I wish to make it clear 

that I will continue to fight for additional funding to the Election 

6 

Assistance Commission, EAC. The EAC has started a valuable 

service to our nation as a clearinghouse for all matters relating to 

federal elections. Among other accomplishments the EAC has 

partnered with the National Institute of Standards and Technology 

to develop voting system guidelines, issue best practice procedures 

to the states, and distribute billions of dollars to improve the election process. 

I would like to also acknowledge the work of all of the county 

and local elected officials who will be represented by the witnesses 

here today. They are the ones who carry out the day-to-day operations of administering the elections. I look forward to the hearing 

today, Mr. Chairman, from these experienced people who have implemented this landmark legislation. 

Before I do that, I would like to read just an excerpt from the 

Christian Science Monitor that was stated by President Lyndon 

Johnson 40 years ago. ‘‘At times history and fate must meet in a 

single place to shape a turning point in man’s unending search for 

freedom and justice.’’ 

We have come today because this is the turning point of this last 

election. We must restore voters’ trust. We must mitigate the voters’ cynicism that has arisen among voters regarding voter irregularities. We must continue to move forward so that the threat of 

litigation and voter outrage does not continue in place. 

Access is what the Voting Rights Act of 1965 presented to us. It 

was supposed to do just that. Forty years today we are still seeing 

that people do not have access to voting and the proper machines 

for voting. I maintain that voter confidence and encouraging greater voter turnout is what this Committee is all about. We feel compelled to have hearings across this country to hear from your 

neighbors, your families, local and state-elected officials regarding 

this last election. 

I would like to again thank my Chairman, the Chairman of the 

Committee on House Administration, for convening this hearing 

and I look forward to the witnesses, Mr. Chairman. Thank you. 

Mr. CHAIRMAN. Thank you, gentlelady, our Ranking Member, for 

your thoughtful statements and, again, your time here in Columbus, Ohio. 

We will go on to our colleague Congresswoman Stephanie TubbsJones. 

STATEMENT OF CONGRESSWOMAN STEPHANIE TUBBS-JONES 

Ms. TUBBS-JONES. Thank you. I would like to thank the Chairman, Bob Ney, and the ranking member representative Juanita 

Millender-McDonald for giving me this opportunity to be heard. I 

am so pleased and I thank both of you for being persons of your 

word by saying that you would host hearings in Ohio and so doing. 

I am proud to be a representative of the 11th Congressional District of Ohio and proud to be here this afternoon. Though my conduct has been labeled disgraceful, foolish, nasty, and disingenuous, 

I sit here very proud to have stood before the United States of 

America and the world on January 6th objecting to the electoral 

votes of Ohio at that time. 

I was very proud and pleased that I have an opportunity as the 

first African-American woman to serve in the House of RepresentaVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00008 Fmt 6633 Sfmt 6602 E:\HR\OC\A790.XXX A790
7 

tives from Ohio to stand on behalf of voters across this country to 

get the Congress just to stop for a moment and say that we need 

to pay attention to what happened in the election of November 

2004 and let the many young men and women across this country 

who registered to vote for the first time and for some reason their 

vote was not counted to say, ‘‘Someone is thinking about you. We 

want you to register again. We want you to come out and vote.’’ 

All that is being said, Mr. Chairman, and Madam Ranking Member, I am going to move to something which I believe as important 

is a piece of legislation that I introduced this year with my colleagues from the Senate, Senator Hillary Rodham Clinton, Senator 

Barbara Boxer, Senator Frank Lautenberg, Senator John Kerry. 

The legislation is called Count Every Vote Act of 2005. The legislation in my mind, and along with my colleagues, we believe it addresses many of the issues that were raised in the election in November of 2004 not only in Ohio but across this country. 

Let me reiterate that many of the activities that occurred in Ohio 

happened in other states and there were other people who wanted 

to stand up and talk about what happened in their election and 

didn’t have the opportunity. I have to for the record say thank you 

to Senator Barbara Boxer for giving me that opportunity. 

Ms. MILLENDER-MCDONALD. From the state of California no less. 

Ms. TUBBS-JONES. From the state of California. Correct. Let me 

put that on the record. 

I also would ask for the record that my statements from that day 

on January 6, 2005, be considered as part of this record. That way 

I don’t have to go through those statements again. 

Mr. CHAIRMAN. Without objection they will be made part of the 

record. 

Ms. TUBBS-JONES. Thank you, Mr. Chairman. Title I of the 

Count Every Vote Act speaks to individual voter verification for all 

and requires all voting systems to produce a voter verified paper 

record for use in manual recounts. It requires that at least one machine per precinct must provide for paper, audio, and pictorial 

verification and must be accessible to language minorities. It provides for a mandatory recount, a vote of verified paper records in 

two percent of all polling places or precincts in each state. 

It goes on to provide for improved security measures for electronic voting machines. It goes to reduce voting errors in voting 

machines and requires that all voting systems meet what is called 

a residual vote benchmark to be established by the Election Assistance Commission. 

Title II provides for provisional balance and I think that is an 

area that we in Ohio know was very controversial. It requires provisional ballots to be counted statewide, allows ballots that are cast 

in the wrong precinct or the wrong county to be counted for all eligible races so long as the voter is registered in the same state. 

All of the issues that happened in the Ohio election and that occurred across Ohio is the fact that in one voting location there can 

be more than one precinct. Conceptually I could be in the right 

church but in the wrong pew and not have my vote counted. That 

is one of the reasons we wanted to make sure that provisional balloting was addressed in the legislation. 

8 

Title III provides for an amendment to the HAVA Act preventing 

long lines at the polls by mandating that the states meet minimum 

standards established by the EAC for required number of voting 

systems and poll workers for each precinct. 

I know it has been argued that there were plenty of machines 

and people didn’t have any problem but poll workers were vested 

with the opportunity to set up as many machines as they chose to. 

If they chose not to set up all the machines that were available in 

the voting place, it ended up requiring long lines. 

It provides no excuse absentee voting meaning that you don’t 

have to give a reason to ask for an absentee ballot which will reduce the number of people voting on election day. It provides for 

improvement of public records and partial election observers, election day registration such that people coming to the ballot box can 

register on election day. 

Another provision which will address the whole issue of having 

too many people in lines is early voting. It requires early voting in 

every state. It requires fair and uniform voter registration and 

identification and partial election administrators. It specifically 

makes it unlawful for the chief state election officials or those who 

own or serve as the CEO, COO, CFO, or president of an entity that 

designs or manufactures a voting system to take part in certain 

prohibited campaign activities with respect to any election for federal office. 

Appearance is one of the issues that we always have to pay attention to. In fact, it may not be a problem but the appearance of 

impropriety is always something we want to take a look at. It provides for civic participation by ex-offenders. Ohio is way above the 

curve. We allow ex-offenders to vote but many states do not. Finally, it provides for a holiday for voting such that people who 

want to have the opportunity to have a holiday. 

I am out of time. I know that there are witnesses that have traveled a long way and I have an opportunity to put information in 

the record. I just want to say on behalf of all the people of Ohio 

and people across this country, Chairman Ney, Ranking Member 

Millender-McDonald, thank you for coming to Ohio. Thank you for 

allowing people across the state to be able to come and testify 

about what happened because many things occurred in Ohio and 

you can’t recount what was never counted. Thank you very much 

for the opportunity to be heard. 

Ms. MILLENDER-MCDONALD. Mr. Chairman, with unanimous consent, may be allow Congresswoman Stephanie Tubbs-Jones to join 

us here on the dias. 

Mr. CHAIRMAN. I have no objection. 

Ms. TUBBS-JONES. Thank you very, very much. I appreciate it. 

Mr. CHAIRMAN. Thank you for your testimony. I would defer 

questions. We have a panel of legislators and we will get to you. 

I thank you for your testimony. We have a lot of bills that have 

been introduced. Come up here and take a look at the legislation. 

We will move on to the second panel. We have Senator Randy 

Gardner, Senator Jeff Jacobson, and Representative Kevin DeWine. 

We appreciate the service you do for the people of Ohio. I think 

Senator Gardner has a time problem. Correct, Senator? 

9 

Mr. GARDNER. Half hour. I don’t know if you would expect me to 

be here for longer than that anyway. 

Mr. CHAIRMAN. That is my problem. Well, the airline. We will 

begin with Senator Gardner. 

STATEMENTS OF SENATOR RANDY GARDNER, OHIO SENATE; 

SENATOR JEFF JACOBSON, OHIO SENATE; REPRESENTATIVE KEVIN DeWINE, OHIO HOUSE OF REPRESENTATIVES 

STATEMENT OF SENATOR RANDY GARDNER 

Mr. GARDNER. Thank you, Mr. Chairman, members of the Committee, thank you for coming to Ohio and returning, of course, to 

Ohio, Mr. Chairman. I served eight years with Senator Ney in the 

1980s and 1990s. It is good to be with you again. 

I have submitted per the Committee’s request some documents 

that actually were 2004 documents, some recommendations that I 

had made as Chairman of the Joint Ballot Security that actually 

met in this very room and had 22 hours of hearings and many witnesses, dozens of witnesses over eight hearings, and made recommendations to the general assembly. I will touch on that in my 

prepared remarks. 

An article that I submitted to Secretary of State Ken Blackwell’s 

publication last summer that highlighted some of my key positions 

on the matter of the voter paper trail and we will discuss that 

briefly. As well, I don’t know if I submitted this or not but pay attention to the March 3, 2004 letter that was signed by Congressman Ney and Congressman Hoyer, Senator McConnell, and Senator Dodd, some of the principal authors of the HAVA act and outline some of the concerns with respect to the debate we had in Ohio 

over the voter verified paper audit trail. 

With that, Mr. Chairman, I would like to utilize these documents 

and say first of all that Ohio has a long and proud and strong tradition of bipartisanship when it comes to administering elections. 

We have 176 Republican board members and 176 Democrat board 

members throughout the state who took their responsibilities in the 

last election in this state very seriously and conducted a very fair 

and very honorable election that we are proud of in this state. 

As I am reminded, Congressman Casey used to always say, ‘‘This 

is earth and there is nothing on earth that is perfect.’’ I appreciate 

the fact that you have come to this state today and that we are 

here today to talk about ways that we can make what will always 

be an imperfect system that much better for the people that we 

serve. 

I would specifically, Mr. Chairman, like to point out that when 

I chaired the Joint Committee on Ballot Security I had announced 

to the public that my philosophy is to not have the Chairman dictate the outcome of any committee hearing or any committee process. The ultimate vote on whether we should require in Ohio a 

voter verified paper audit trail was seven to one and the Chairman 

was the lone dissent on that issue. 

At least I adhere to my principles, Mr. Chairman. We did implement a mandate that I believe was not the best public policy in this 

state in legislation in 2004. I believe we should revisit that mandate. We should, in fact, either repeal it or ask Congress to conVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 E:\HR\OC\A790.XXX A790
10 

sider an extension of some of the HAVA guidelines and rules so 

that Ohio can most appropriately move forward in the future. 

I would also like to point out that the issue of the verified paper 

audit trail is interesting in that those who have concerns about the 

electronic voting system, or DREs, seem not to have any concern 

to add more complexity to an already complicated system which I 

think makes that new system if it were to be established even more 

unreliable than some of the concerns in the first place. 

I think the final thing I would like to say, Mr. Chairman, is concerns on both sides to become sometimes extreme. The one thing 

that I asked you for, and I think sometimes people are too cynical 

about politics and they think money is at the root of every decision 

that gets made, the question I would have for those who attempted 

to portray some of the concerns and protests in Ohio in the last 

year with respect to electronic voting machines and DREs, the 

Ruckus Society from Oakland, California, came to Ohio as part of 

a protest. 

I asked the question before and I think it is relevant for those 

that ask why we make decisions and whether money influences us 

is to who paid for the Ruckus Society to come to Ohio and protest 

against the Ohio voting system? Was that voting machine companies that might benefit from a different system? Was it members 

of the Democratic party or the officials or the party operatives who 

paid for those visits? I think those are fair questions to ask and 

then hopefully we can come together as Republicans and Democrats to provide the best system possible for this state. I am honored to be a part of the panel discussion today and I look forward 

to answering questions after my colleagues have made their presentations. Thank you, Mr. Chairman. 

Mr. CHAIRMAN. Thank you, Senator. Thank you for your time 

today. 

Senator JACOBSON. [The statement of Mr. Gardner follows:] 

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14 

STATEMENT OF SENATOR JEFF JACOBSON 

Mr. JACOBSON. Thank you very much, Chairman Ney, and members of the Committee. I appreciate your interest in Ohio. Like so 

many other Ohioans I spent a lot of time talking to the air, to my 

television, or the Internet wanting to tell you all what we think of 

some of the things or answer some of the questions you may have. 

Rarely do we have the opportunity to do so so I appreciate that. 

My first question in looking at the 2004 election was why Ohio? 

What exactly made Ohio the poster child for questions about the 

election? Clearly there was attention on Ohio because Ohio was in 

the news before the election day. If you look at the outcome of the 

election, certainly the state of Wisconsin, which had it gone the 

other direction would have been sufficient to decide the race without Ohio. 

Wisconsin had more severe issues that were directly connected as 

the Minneapolis Star Tribune’s investigation has shown with the 

election day registration and the inability to verify or even come up 

with any plausible way that many of the people who registered, 

thousands of them, in fact, would actually have had a legitimate 

address and could in any way have been determined to be a legitimate voter. 

Of course, it went the other way and finding extra votes was not 

on the media’s mind nor on the activists minds. The issue was how 

to take away votes. But the Count Every Vote Act that was described to us earlier I believe would make that problem even worse 

and extend it beyond Wisconsin to the rest of the nation. 

Washington State where time and again their election workers of 

a partisan administration discovered multiple caches of uncounted 

votes. That would never have happened in Ohio. It is impossible for 

what happened in Florida four years ago or what happened in Wisconsin or Washington State to have happened here. 

The main reason is because we have bipartisan, local, independent Board of Elections. While the Secretary of State picks the 

members of the boards, he does so based on the recommendations 

of the local parties. If he removes someone, he replaces them again 

with someone recommended by the local parties. 

I know this well as a former county chairman, and a former 

member of the local Board of Elections of Montgomery County. I 

was particularly disappointed in some of what happened in Congress in attacking the Ohio outcome because it involved people who 

were from Ohio who knew exactly how our boards of elections operate, I wish I could have defended them on the basis that it is true 

that Democrats watch what Republicans do, Republicans watch 

what Democrats do, and because of that, the opportunity for one 

side or another to change the outcome of an election is impossible. 

The fact that there was litigation brought exactly on that fact is, 

to me, one of the most disgraceful things that occurred in the 2004 

election and ranks right up there, in my opinion, with the decision 

by then Vice President Al Gore to try to manufacture a change in 

the Florida election in 2000. Both together, I think, have contributed to a situation where people of good will now have to find 

themselves wondering whether we can again have an election for 

which all people will accept the outcome. 

15 

I was a member of Senator Gardner’s election committee here on 

ballot security and I do wish to state that I don’t like DREs. I don’t 

like them because they are not transparent unlike punch cards. 

You can hold a punch card to the light and see how someone voted 

or, as they did in Florida, see how someone might have intended 

in Florida had they really did what I wanted them to. Where you 

have optical scan ballots, you can look at those ballots and determine how someone voted. With DREs you have to hope that the 

machine accurately recorded it. 

I do a lot with computers. I understand how they work and that 

is why I so strongly supported having paper trails to bring transparency to what otherwise would not be transparent. However, 

DREs take a long time to use and the direct consequence would be 

longer lines no matter how you look at it. The money that was 

given to Ohio has not been sufficient to do all that you wish. 

I thank you for the opportunity to testify and look forward to 

working with you again in the future. 

Mr. CHAIRMAN. Thank you very much, Senator, for your testimony. 

Representative DeWine. 

[The statement of Mr. Jacobson follows:] 

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STATEMENT OF REPRESENTATIVE KEVIN DeWINE 

Mr. DEWINE. Good afternoon, Mr. Chairman. Thank you for the 

opportunity to testify before the Committee on House Administration. I appreciate the leadership efforts of the Chairman, the Ranking Member Millender-McDonald, and members of this Committee 

and congressional leaders to improve the election’s process in our 

country and to ensure the United States remains a model for democracy. 

I would also like to thank the Committee for coming to Ohio. The 

state has a solid history of well-run elections as well as an energized and active electorate which I believe makes it a compelling 

study for Congress. 

The November election was undoubtedly one of the most scrutinized in recent history, particularly here in Ohio. However, as has 

already been mentioned, with the leadership and professionalism of 

our bipartisan election officials, Ohio’s system withstood the pressure of a major election and we were able to avoid the chaos which 

ensued elsewhere in the nation during the 2000 election. 

As mentioned by others, our system is not without its faults. 

With minor changes, however, I believe we can minimize risk. Most 

of us heard concerns during last year’s elections from voters, 

boards of elections and poll workers. As such, the general assembly 

is seizing the opportunity to update and strengthen our system of 

elections. These efforts are found in part in House Bill 3 which I 

introduced in an effort to modernize Ohio’s election laws. 

House Bill 3 makes important clarifications to Ohio’s election 

laws and brings the state into alignment with HAVA. House Bill 

3 codifies rules for casting a provisional ballot to align Ohio’s provisional system with HAVA. The HAVA procedure allows a citizen 

whose eligibility is challenged or whose name does not appear in 

the poll books to cast a provisional ballot. This system differs from 

the current Ohio procedure which only allows those citizens who 

have moved and have failed to submit a change of address form to 

vote provisionally. 

House Bill 3 seeks to codify the HAVA requirements for voter 

identification which requires first-time voters who registered by 

mail to provide a form of identification when they cast their ballot 

or at the time they registered. Additionally, in an effort to further 

curb voter fraud, the general assembly is also considering whether 

to require a voter to provide identification at each and every election. 

Finally, House Bill 3 compels the Secretary of State to develop 

a computerized statewide voter registration database as required 

by HAVA. Procedures for managing this database must be established in order to remove ineligible voters in a nonpartisan fashion 

while giving the voter proper notice and an opportunity to provide 

accurate registration information. 

Outside of the scope of HAVA compliance discussions have been 

underway to address a number of broader election issues. Ohio’s 

election calendar is in desperate need of an update. Concerns have 

been raised about the very short time frame in which pre-election 

voter registrations must be received and resolved. 

The current system begins on the 11th day before the election. 

This clearly does not allow enough time for proper notice and hearVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 E:\HR\OC\A790.XXX A790
20 

ings. We are looking into further ways in which we may improve 

the timing of the election process to ensure that voters have ample 

time for ballot access and boards of elections have ample time to 

process all the information and ensure its accuracy. 

As I mentioned earlier in my testimony, House Bill 3 aligns Ohio 

election with HAVA in terms of who is eligible to vote by provisional ballot. Beyond that, the general assembly is working to codify the uniform standards and procedures necessary to clear a provisional ballot including jurisdiction, how and when to count a provisional vote, the form in which the provisional is submitted, and 

the instructions to the poll worker and the voter. 

The general assembly is working to revise the laws and procedures that relate to election day activities and conduct in and 

around the polling location. Above all else each of us should strive 

to preserve the rights of voters who come to the polls. Unfortunately, each and every one of us have reports of voter harassment 

and intimidation that occurred on election day, as well as inappropriate behavior inside the 100-foot line and even inside the polling 

location. 

That kind of behavior is unacceptable and will be further addressed in this legislation. We are also clarifying the statute to 

allow for witnesses and challengers to be present at the precinct, 

the Board of Elections on election day, and during the count or recount of all ballots. 

In my opinion much of the wrangling generated during last 

year’s election was in part the result of directives from the Secretary of State’s office. I don’t believe that the content of these directives created as much of a problem as did the timing of these 

directives. Many directives were issued very close to or on election 

day. 

I will tell you it doesn’t matter which party controls the Secretary of State’s office. Last-minute directives will automatically result in a hostile reaction by the party that is not in charge. That 

reaction borne out of natural suspicion of the other party will likely 

result in litigation. House Bill 3 will bring the needed specificity 

to Ohio election laws while still providing the Secretary of State’s 

office the needed flexibility to deal with pressing election matters 

in real time. 

I cannot reiterate enough how important it is that all Ohioans 

have confidence in the election system. It is incumbent upon Government officials, federal, state, and local to make the process more 

seamless, accessible, and transparent to all voters. 

Once again, Mr. Chairman, I thank you for the opportunity to 

testify before you today and look forward to the Committee’s questions. 

[The statement of Mr. DeWine follows:] 

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24 

Mr. CHAIRMAN. Thank you for your testimony and for your perspectives on HAVA. One thing that I just wanted to clarify is that 

as we drafted the Help America Vote Act, Carson, Hoyer and I personally talked to committee groups, Secretary of State, election officials, and civil rights advocacy groups. This was the first time we 

enacted such legislation in the nation’s history. We had a commission, led by Jimmy Carter and Gerald Ford who called this voting 

rights act one of the greatest civil rights measures that Congress 

could have passed. 

I do believe we had to federally pass provisional voting. People 

were disenfranchised. I think there were things, for example, like 

the mandate for the person with a disability, that we improved. For 

the first time in the nation’s history and the first time in people’s 

lives, the blind have been able to vote in secret. 

I think there were things we had to do federally or it would not 

have been done. Now, we have tried not to overdue it in the sense 

that we all agreed, Democrats and Republicans. We agreed we 

would not have an election commission that would make daily rules 

and regulations, but that we would prompt change, at the state 

level. 

We asked these groups how much money they wanted, but 

there’s more to it than money. Money is important, but it is not the 

entire legislation by any stretch of the imagination. It went beyond 

punch cards. When we asked them, they agreed that if we funded 

$3.9 billion, then this would not be an unfunded mandate. 

We also talked to MCSL. Carson, Hoyer, and I were former members of the legislature, as a lot of bar members that voted on this 

were. The bottom line is we were told $3.9 billion. As of today we 

have got $3 billion out there in the pipeline. $900 million is yet to 

be achieved, and I believe we will achieve it this year. We want to 

get to that $3.9 billion. I believe if the Help America Vote Act 

never occurred, states still would have modernized as a result of 

the controversy of the punch cards. 

Katherine Harris was Secretary of State and they moved immediately afterwards. Florida did, Georgia did. I can name states that 

were moving on their own without the Help America Vote Act. I 

believe that eventually the states would have to put some money 

in, so we put some money in. Again, I just want to make it clear 

that we never said we would pay for every single machine. 

Now, Ohio added a paper trail. I don’t want to debate all day the 

paper trail, but Ohio added the paper trail, because you have to 

have that paper trail. Ohio then added another additional requirement. Was there any thought to adding more money because the 

paper trail requirement was added. The Help America Vote Act 

never required each state to have a paper trail. Now, if you want 

to have one, it didn’t forbid it. I am just saying that it is a significant issue because if you are going to add that, you will add another layer of cost. 

Mr. JACOBSON. Thank you. As one of the most vocal proponents 

and early proponents of it, I will tell you that one of the problems 

that we had was trying to estimate, first of all, how many machines were appropriate. That was a problem from the beginning. 

With DREs you deal with the fact that not every voter knows how 

to operate a computer, though we are used to it more with ATMs. 

25 

We were concerned at the ratio that was suggested, 200 to 1 

would be insufficient to start with. Since then we had a lot more 

voter registrations because of the 2004 General Election. We have 

a lot higher turnout from those new registrations than has ever 

been experienced before in terms of turnout. 

I think that has a lot to do with why there were long lines because no one could anticipate the double effects when they were deploying machines, etc., making decisions at the local level. I think 

what happened is that the Secretary of State when the time 

elapsed for the election said 1 to 200 is no longer good enough to 

prevent long lines. I agree with that. Furthermore, we have to have 

more machines because we have more voters. Those two things coupled together, more than the extra cost associated with the paper 

trail, is what makes the money insufficient. I think there is a way 

to do it and I think we can do this without necessarily resorting 

to DREs. 

We can do it with, as has been proposed in Ohio, optical scan. 

There may be a way to use DREs to help create optical scan ballots 

but then let them be counted not inside a computer where the process cannot be accurately verified but where there is a paper record 

and the paper record itself is the ballot and gets counted. 

Mr. CHAIRMAN. If you do optical scanning, you still have to have 

one machine to equip the persons that have a disability. There is 

today no approved standard because, as I said, Carson, Hoyer, and 

I did not make the EAC a rulemaking body; but neither did we 

strip it of its ability. If you optical scan, it has to approve procedures and standards; today there are no standards for optical scanners. 

If the state of Ohio does move towards satisfying the mandate in 

HAVA, the real pure mandate beyond provisional balloting, a machine equip, you still would have to have a DRE per precinct or you 

would fall out of violation with HAVA. If you have optical scan and 

no type of device equipped for the blind, then you will be out of 

compliance, and must still have to have a DRE. That means you 

have to throw one other thing out there. 

If you have one DRE per precinct, and that one machine breaks 

on election day, you don’t have a second machine backing it up. If 

you have all DREs, it wouldn’t matter. You would still have five 

other machines. Technically you would have to have DREs even if 

you have optical scan. 

Mr. JACOBSON. I guess I would just briefly say optical scan is 

much cheaper than DREs with or without paper trails. We do have 

a lot of money left over within the HAVA budget to deploy whatever systems would be necessary to allow the disabled to vote. We 

do recognize that we have the responsibility of providing them with 

something of a format like a DRE. 

The question is whether or not that has to generate within it the 

record or spit out a ballot that then can be counted in the same 

fashion. We are working our way through but we recognize we will 

have to have more. We do believe we have the funding for it. 

Mr. GARDNER. Mr. Chairman, if I could, you have touched on a 

very key component of HAVA with respect to allowing those with 

disabilities to vote more independently and privately. That is one 

26 

of the key reasons why I oppose provisions to mandate a voter 

verified paper audit trail. 

Let me just read briefly from just one paragraph from what I 

wrote last June 4th. ‘‘To be sure, the most ardent supporters of 

VVPATs have succeeded in slowing down the implementation of 

HAVA in Ohio. In doing so we know that some voters in November 

will not have their intended vote counted accurately as our older 

systems, primarily punch cards, result in higher under votes and 

over votes than in electronic voting machines. In addition, many 

disabled Ohioans will not be able to vote independently and privately in 2004 because some counties will waive to implement 

HAVA in compliance with Ohio’s 2006 VVPAT mandate.’’ 

My additional concern in stating that is not to restate the record 

of the past but as we look forward, I think we need to look at the 

independent private voting abilities of the disabled even if we do 

have an optical scanner, as you pointed out, which would be necessary to comply with HAVA. 

I think that is just something we can’t escape and we shouldn’t 

escape. Not only is there a cost issue here, I think there is a voting 

rights issue here, Mr. Chairman. I believe that the legislature will 

take that into consideration in the weeks ahead. 

The CHAIRMAN. Thank you. To Representative DeWine, I don’t 

pretend to know every product but, from what I know, it brings 

greater clarity and consistency to Ohio’s election process, which is 

what we hope all states will do if there are some things that aren’t 

clear. I think your efforts will significantly enhance HAVA implementation in the state. 

One thing that I am trying to take away from today’s hearing is 

the areas in which HAVA did and did not work. A lot of the implementation was left up to the local states. Provisional voting was 

one of the most critical components. We didn’t tell the states how 

to count the vote, but we said you have to accept the vote. In that 

area, with provisional voting, how do you think it went? I am just 

curious how provisional voting went from the perspective of the 

states. 

Mr. DEWINE. Mr. Chairman, if I might on the paper trail piece. 

I stand directly in between the two of these gentlemen when it 

comes to a position on paper trails. You can’t find two more polar 

opposites on what to do with paper trail, and many other issues as 

you well know, Mr. Chairman. 

My one point on the paper trail. We struggled trying to balance 

to get a federal deadline in 2006 and balance that against the security of the vote. If you carry nothing else with you today, the one 

message that I have for you is we would like an extension of the 

deadline. 

We would like an extension of the deadline from 2006 to 2008 so 

that we can work out the issues, we can balance the security of the 

vote with the requirements that HAVA has put on. If you walk 

away with one thing, please walk away understanding that I am 

asking this committee and Congress to grant us an extension until 

2008 for the expenditure of the HAVA dollars. 

I think when you look at the election, Mr. Chairman, especially 

as it relates to provisional voting, Ohio had a pretty darn good history prior to the election in 2004 and with the implementation of 

27 

the HAVA requirements for provisional balloting in 2004 we went 

far beyond that and actually led the class in terms of the number 

of voters who voted provisionally and the percentage of those provisional votes that were actually counted so I think the system here 

in Ohio worked the way it was supposed to. 

The CHAIRMAN. I just want to note a couple of things. I had spoken earlier of the backup machines. HAVA requires one machine 

per precinct. I don’t want to rewrite the HAVA law today. I am also 

asking, if one breaks down, what do you do? 

Also people would argue that the state delayed this whole thing. 

If that was the case, why should the Federal Government waive 

Ohio, and what would happen in the central database in 2006? 

These are some of the arguments you hear in Washington. 

Mr. DEWINE. Mr. Chairman, to that point, I am not requesting 

that you delay any of the time lines for any compliance with anything other than the voting machine. I believe the Secretary’s office 

is up to speed on the centralized database. I think we are 80 percent of the way there. Any of the other requirements I think the 

Secretary’s office is up to speed. I am talking specifically about voting machines, Mr. Chairman. 

The CHAIRMAN. Thank you. I am going to move on. 

Mr. GARDNER. Mr. Chairman, the only thing I would say is I 

would echo the representative’s comments. I know that there will 

be some local board members, members of the Board of Elections, 

that will be testifying today or representatives of that association. 

I would hope that you will listen carefully to them. 

Quite frankly, I listened to them very intently when I became 

chairman of the joint committee and they guided a lot of my decisions because I knew they had spent two years in working with you 

and working with members of Congress and working with the Secretary of State in putting together a process that I think would 

work best for Ohio. We took many of those decisions out of their 

hands. I hope you will listen to them today as to how they think 

we can best implement HAVA, whether it is 2006 or 2008. 

The CHAIRMAN. I want to clarify one other thing because I hear 

this from Democrats and Republicans alike in my Holmes County 

or Ross County calling and asking our office, ‘‘Do you and HAVA 

require every county to have the same machine?’’ The answer is no. 

The Federal Government does not require it. 

In other words, Ross County had already bought some machines. 

It would be up to the legislature and the Secretary of State and the 

Governor. I know how systems work here but I just wanted to mention that it doesn’t require you have to have the machine. 

Mr. JACOBSON. Thank you. Our concern about 2004 was two-fold. 

First of all, to require deployment in an election with so many new 

voters and so many questions about how to run the existing procedures let alone how to run new machines could have been disastrous. The lines would have been worse, for example. 

You only need look at what happened in North Carolina where 

an entire statewide election is being rerun, if not already has been 

rerun, since 2004 because of human error in dealing with the computers they had, the DREs that they had. I think it was not inappropriate for us to be concerned. Imagine what would have happened if we had to run Ohio’s presidential election over again beVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00029 Fmt 6633 Sfmt 6602 E:\HR\OC\A790.XXX A790
28 

cause our poll workers or because the machines themselves did not 

function well. 

Our concern, by the way, with uniformity, I think, stems from 

not HAVA but from Bush v. Gore and the U.S. Supreme Court decision and the effect that might have on any set of litigation about 

what happens in the state. 

The CHAIRMAN. The gentlelady from California. 

Ms. MILLENDER-MCDONALD. Thank you, Mr. Chairman. I would 

like to thank all of you for coming today to present your thoughts 

on this last election. 

Representative DeWine, I appreciate your candor because you 

are absolutely right. Last-minute directives were those very things 

that turn heads to the attention of Ohio. 

Mr. Jacobson, when you asked why is it that we have shown 

such great attention to Ohio and not to Wisconsin. The Secretary 

of State of Wisconsin did not make those last-minute directives 

which then geared us from looking at Ohio. I will say to you that 

with reference to your question, Representative DeWine, on extending the deadline to 2008, in my statement I did say that HAVA has 

required that state election officials meet two goals by next year, 

and that was that at least one voting machine or system that is 

successful to individuals with disabilities. The second was that we 

have a uniform centralized database so that is to be really carried 

out by next year. 

Your president of your National Association of Secretaries of 

State, the New Mexico Secretary of State, Ms. Vigil-Giron, said 

that every state had met the HAVA 2004 deadline. Several states 

even completed reforms that could have been postponed to 2006. At 

least nine states were ready with statewide voter registration data 

and the Americans with disabilities independent system. 

I just wanted to let you know that the president of the National 

Secretaries of State, Association of Secretaries of State, did indicate 

that a majority of these states, if not all of them, are now in compliance and will be by next year. 

Mr. Jacobson, when you asked why is it that we come to Ohio 

or why the media was so prone to turn lights into Ohio, outside of 

the last-minute directives that really kind of set up the red flag, 

when you have your Secretary of State indicating that forms on 

800-pound papers not be accepted also brings up red flags. When 

you have someone who is not inside of his or her precinct should 

not fill out a provisional ballot, that brings up red flags. 

When the Voting Rights Act prohibits anyone, any individual 

that would be intimidated, and there were many factors involved 

here that even some of your elected officials, your local folks, who 

were on this commission stated that you have elections on Wednesday, November 3rd, as opposed to November 2nd, those are the 

things that really brings up a red flag. 

Now, we are duly responsible for making sure that people have 

access in this country and that is access to voting. When these 

types of things come as interferences, then by all means Ohio will 

be a targeted state and we review and that we will come back to 

look at. Do you have any thoughts on all of those that I have delineated as to those directives and/or concerns that were raised by 

your Secretary of State and why we are here today? 

29 

Mr. JACOBSON. Thank you very much. The first thing I would say 

is I do not believe the apocryphal stories about phone calls were 

being given to people to say come vote on Wednesday. I’ve heard 

them on both sides of the issue and my sense of those kind of 

things is that if one person pulls a prank, they usually cover it up 

by claiming that they got the call or their friends got the calls. 

I do not believe in any way, shape, or form that those kind of 

comments can be substantiated in order to claim them as anything 

other than apocryphal legends about the 2004 election in the same 

way there were so many about Florida in 2000 that to this date 

have never been sustained or substantiated. 

I do understand what you were saying about the Secretary of 

State’s directives. That is a different issue. First I was talking 

about the claims that have been made—— 

Ms. MILLENDER-MCDONALD. But is it not directly the reasons 

why one should raise red flags here and why Ohio is being looked 

at? Ohio is not the only state that is going to be looked at but you 

were one of those who were because you were the deciding factor 

on the presidential election. Make no bones about it, no one, no one 

was trying to overthrow this election. No one. 

Mr. JACOBSON. Am I still responding? 

The CHAIRMAN. Yes. 

Mr. JACOBSON. Thank you. I guess I would say, first of all, as far 

as the 2004 election, I appreciate the fact that you are here in 

Ohio. My question was rhetorical mainly directed at proving why 

or suggesting why Ohio’s system is better because of having the bipartisan independent Board of Elections unlike other states. 

Perhaps you took my rhetorical question as implying we didn’t 

have anything for people to come and look at. That was not my 

suggestion. My suggestion was that Wisconsin had it gone the 

other way, would have also been the deciding factor. 

Ms. MILLENDER-MCDONALD. And we would have been in Wisconsin today as opposed to Ohio. 

Mr. JACOBSON. But what I am suggesting is we aren’t in Wisconsin because it voted for the losing candidate. Had they voted for 

the winning candidate, perhaps we would have been there. As to 

the directives of the Secretary of State, which I think was the part 

of your question that I had not answered, I do believe that some 

of the directives raise concerns. I am glad to state that the one that 

you mentioned about the 80-pound paper was withdrawn almost as 

soon as it was promulgated. 

Ms. MILLENDER-MCDONALD. Nevertheless, it was done, sir, and 

those are the things that we carefully look at because, as Representative DeWine said, these things have become partisan. Images are so critical, especially when the stakes are high and stakes 

are high in presidential elections. When you have those types of 

things, of course, folks will go right to the jugular on that. This is 

why we have turned our attention to Ohio and did turn the attention to Ohio because of that. We would have turned those attentions to California or any other state had it been those types of 

overtures. 

Mr. JACOBSON. The last point I would make is that Ohio had a 

difficult burden because of the involvement of groups that came 

from outside the state, groups that submitted large blocks of regVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 E:\HR\OC\A790.XXX A790
30 

istrations, many of which were forged and falsified, all of which put 

a strain on the local board’s ability to deal with things in an appropriate time frame. There were many things that combined in the 

fall to produce confusion, confusion that the Secretary of State attempted in a disappointing way at times to clarify. This was the 

heat of dealing with all kinds of outside interference. I think when 

he is here—— 

Ms. MILLENDER-MCDONALD. It happens in all states. 

Mr. JACOBSON. Not to this level. I would suggest that he could 

better answer his motivations in dealing with the directives. 

Ms. MILLENDER-MCDONALD. I understand but we will always 

have, no matter what state it is, interferences. You will have 

groups coming in just like someone said about some group that 

came all the way from Oakland or whatever. You are going to have 

groups coming from all over irrespective. That is the American 

way. You can’t stop that. When we talk about 800-pound papers 

that will not be accepted, when we talk about people who cannot, 

those are not any incidents that are totally dedicated to people who 

are coming from out of state. That is your elected official. 

I am talking to you, sir, please. 

Mr. JACOBSON. Sorry. 

Ms. MILLENDER-MCDONALD. That is directly from your person 

who has the ultimate oversight of elections in your state so this is 

what we are talking about, not necessarily all of the confusion of 

these people who come in. They come in to the people’s house. They 

come from all over. They come from every place and that is their 

right to do that but it still does not circumvent those last-minute 

directives that caused contingent. 

Mr. JACOBSON. I would just say that fraudulent registrations are 

not a part of the American way and groups that are paid to come 

in and end up registering Mickey Mouse and some of the other people that were registered in return for crack cocaine, the millions of 

dollars that poured in in an attempt to influence Ohio I think is 

not normal and I would just state that it did make all of our jobs 

quite a bit more difficult. 

Ms. MILLENDER-MCDONALD. Mr. Jacobson, I would hate for you 

to characterize voters as crack cocaine. Please do not characterize 

those who are doing registration of people—— 

Mr. JACOBSON. You may not be aware of what specifically happened. A gentleman was arrested and I think pled guilty that he 

was paid in crack cocaine for submitting registration cards and the 

registration cards that he submitted included Donald Duck, Mickey 

Mouse, Mary Poppins, and all kinds of others. 

Ms. MILLENDER-MCDONALD. Of course we have heard that, but 

is that not one incident of the many? We have to be very careful 

that we do not show any resemblance of arrogance on the parts of 

those who wish to vote and let their vote be counted. There are 

many minorities in this state and in every state who have been at 

the throws of not letting their votes be counted. 

Those long lines of 10 hours that Mr. Jacobson just spoke about, 

those are some of the problems, too, that tend to have 

disenfranchised voters because folks have to leave to go pick up 

their children. Folks have to go and take medicine that they did 

31 

not bring because they thought they would be finished. These are 

the reasons why this committee is in Ohio. 

We just want it to be known that we did not just come to Ohio. 

I would love to have been with my family and not flown here but 

it was important. It is my responsibility as the Ranking Member 

on this Committee to find the facts. Thank you, Mr. Chairman. 

The CHAIRMAN. Let me note something off the bat here. Under 

the way the House committees proceed, there is not to be booing 

or clapping or emotion on either side, so we would ask you to adhere to the rule of the House. 

I would note before we move on to my colleague, as far as what 

the senator is referring to, I publicly spoke out against this. I am 

hoping this Committee addresses it. When they did the ‘‘campaign 

finance reform’’ they took union members and average people that 

are working in corporations and said, ‘‘You can’t participate in the 

system, but we will create a nine-headed monster called the 527 

and empower a very wealthy, in this case, Democrat billionaire, to 

try to put as much money in the system.’’ And let me be fair about 

this. There is probably going to be a billionaire Republican that is 

going to come to the forefront—— 

Ms. MILLENDER-MCDONALD. Already, Mr. Chairman. 

The CHAIRMAN. The Republicans hope so. Therefore, I am hoping 

our Committee will restore the voice of the average union member 

and the average corporate person to participate in the political system and the energetic give and take of public debates. I am more 

than willing to correct that little monster that was created, not by 

the IDC, but by a couple people that didn’t write the law tight 

enough in Washington. 

Ms. MILLENDER-MCDONALD. I couldn’t agree with you more, Mr. 

Chairman. If we are going to do away with 527s, let those 527s be 

done away with across the board. It was not only those on the 

Democratic side so don’t let me start talking about the issues of the 

House, please. 

The CHAIRMAN. As we move on, you have seen the MillenderMcDonald and Ney piece of legislation for next week. 

Ms. TUBBS-JONES. Thank you, Mr. Chairman. The light comes 

on. I am assuming this is on. 

Let me begin with Senator Gardner. Senator Gardner, are you 

opposed to early voting, sir? 

Mr. GARDNER. Am I opposed to early voting? 

Ms. TUBBS-JONES. Yes. 

Mr. GARDNER. I think it depends a little bit how it is constructed. 

Generally speaking I believe we have widespread access to voting 

in this state. We have, again, as the Chairman—— 

Ms. TUBBS-JONES. Let me state I only have five minutes. I am 

not a ranking member or chairperson. My question is real simple. 

Are you opposed to early voting, sir? 

Mr. GARDNER. I don’t think I have taken a public position yet. 

I have concerns about early voting. 

Ms. TUBBS-JONES. What about a voting holiday, sir? 

Mr. GARDNER. I am not in favor of a voting holiday. 

Ms. TUBBS-JONES. What about no-excuse absentee registration, 

sir? 

32 

Mr. GARDNER. I am open to hearing the debate in Ohio on that 

but I am not in favor of that at this time. 

Ms. TUBBS-JONES. Do you understand that all of these concepts, 

sir, are proposed to permit easy access to voting such that voting 

lines would not be as long as they have been in the past? 

Mr. GARDNER. I do, ma’am. 

Ms. TUBBS-JONES. Thank you. What about you, Senator 

Jacobson? Are you opposed to early voting? 

Mr. JACOBSON. I am opposed to early voting or no-fault absentee. 

Ms. TUBBS-JONES. Are you opposed to a voting holiday? 

Mr. JACOBSON. I am opposed to early voting and no-fault absentee because voters do not have all the information about all candidates on the ballot in the weeks leading up to the election. 

Ms. TUBBS-JONES. Excuse me. 

Mr. JACOBSON. They only learn about it—— 

Ms. TUBBS-JONES. Mr. Jacobson. 

Mr. JACOBSON [continuing]. In time for election day. 

Ms. TUBBS-JONES. Mr. Jacobson. 

Mr. JACOBSON. They may know the president but nothing else. 

Ms. TUBBS-JONES. Sir, I understand but I would ask for just a 

little bit of respect. I am asking you a question. Briefly answer my 

question. I only have five minutes. My question to you, sir, are you 

saying that somebody who registers to vote 30 days before an election versus someone who registers to vote on the day of election 

has more information? 

Mr. JACOBSON. No, I am not taking about registration in that 

case. I am saying that when people wait until election day to vote, 

there is the opportunity to learn about all the candidates and the 

issues. Early voting when it happens means that some voters have 

a lot less information 30 days out or 20 days out than they would 

have—— 

Ms. TUBBS-JONES. You understand, sir, that many, many states 

have early voting and—— 

Mr. JACOBSON. I believe it is a mistake. It reduces lines and it 

helps incumbents because people know the incumbents. They don’t 

know challengers. 

Ms. TUBBS-JONES. Twenty days out of an election that is how you 

get to know a challenger. Is that what you are saying to me? 

Mr. JACOBSON. No. I am saying that most campaigns are conducted in this country by TV and they are conducted working backwards from election day. If it takes place before candidates have 

reached their base—— 

Ms. TUBBS-JONES. What about—— 

Mr. JACOBSON [continuing]. The incumbent is well-known for 

months and years. 

Ms. TUBBS-JONES. What about the young people who are in Iraq 

and Afghanistan and they vote 30, 60 days out in order to get their 

absentee in? Are you saying to them that they are uneducated 

about their decision on who they vote for, sir? 

Mr. JACOBSON. I am saying that when someone chooses to vote 

early, they are choosing to vote with less knowledge than they 

would have otherwise. 

Ms. TUBBS-JONES. Because in the last 30 days you get everything 

you need to know about any candidate? 

33 

Mr. JACOBSON. That is the way campaigns work in America. 

Maybe it shouldn’t be. The incumbents are known for years. They 

send out newsletters. They are on TV. Challengers barely get a 

chance to be known at all—— 

Ms. TUBBS-JONES. Let me ask you this. 

Mr. JACOBSON [continuing]. Working backwards from election 

day. 

Ms. TUBBS-JONES. Mr. Jacobson, please. If you would stay with 

me, sir. 

Mr. JACOBSON. Sure. 

Ms. TUBBS-JONES. You said there was money left over from 

HAVA. Is any of that money going directly to local boards to administer information to the voters, sir, if you know? 

Mr. JACOBSON. I guess some of the money is being used in that 

way. What I was speaking of is when we decided not to go with 

DREs and instead—— 

Ms. TUBBS-JONES. How much money—Mr. Jacobson, do not talk 

on top of me, sir. My question is did money go to local boards to 

give them opportunities to implement HAVA? 

Mr. JACOBSON. I don’t believe I can answer the gentlelady’s question because—— 

Ms. TUBBS-JONES. Thank you very much. 

Mr. JACOBSON. I would like to—I can answer it if you would let 

me explain the answer. 

Ms. TUBBS-JONES. Answer my question. 

Mr. JACOBSON. Thank you. The reason we have money left over 

is because when we decided not to do DREs for everybody and instead to do optical scanning—— 

Ms. TUBBS-JONES. Okay. I am with you on why you have money 

left over. I am asking you did any money go to local boards for 

them to implement or give information to their voters about what 

was going on? 

Mr. JACOBSON. I do believe there was money we appropriated 

that was supposed to be used for educating poll workers as well as 

the money that was used to educate voters directly. 

Ms. TUBBS-JONES. But you don’t know whether any of that 

money went to the local boards or not? 

Mr. JACOBSON. I do believe it was supposed to but I am not in 

charge of spending the money. We make appropriations. 

Ms. TUBBS-JONES. Lastly, sir, are you aware that, in fact, the 

Secretary of State has the ability to dismiss members of boards of 

elections? 

Mr. DEWINE. Yes, I am. 

Ms. TUBBS-JONES. And so the argument that it is a bipartisan 

system, you have one partisan who is capable of dismissing members of the Board of Elections as Kenneth Blackwell threatened to 

do in this past election, HAVA gives way to the real bipartisan nature of the boards. Does it not, sir? 

Mr. DEWINE. Mr. Chairman, to the representative, I believe that 

he can only remove those board members for cause and would have 

to replace them with a person of the same party. 

Ms. TUBBS-JONES. I understand but I am saying to you that he 

has the ability to dismiss members of the board. In fact, he threatened to do that in this election. Did he not, sir? 

34 

Mr. DEWINE. I believe I heard that, yes. 

Ms. TUBBS-JONES. He did, in fact. You didn’t just hear it. It was, 

in fact, all over the newspaper and television that he, in fact, did 

that. Correct? 

Mr. DEWINE. Correct. 

Ms. TUBBS-JONES. Thank you, Mr. Chairman. 

Ms. MILLENDER-MCDONALD. Mr. Chairman. 

The CHAIRMAN. Gentlelady. 

Ms. MILLENDER-MCDONALD. Let me just for the record outline 

the amount of money that the state of Ohio has received so far. 

You are the third leading state to have received HAVA money with 

$135,704,000. You are the third state to receive the largest 

amount. I just wanted to make that for the record, Mr. Chairman, 

outside of Florida with $159,711,000. Of course, my state has over 

35 million people and received $181,580,000. 

Mr. Chairman, I would like to just ask these gentlemen to give 

us what they feel would be an improvement for elections if you can 

say that with two or three sentences. I would like to get that before 

we leave. Improve upon your elections. 

The CHAIRMAN. I think we can actually combine the last question 

that I would have, which is why we are here today. What can be 

done to improve upon elections? My other question is, in general, 

how do you believe HAVA worked? That is what I am here today 

to find out, how HAVA worked. 

Also, I would be remiss if I didn’t say as the author of HAVA, 

I am proud that my state got the lion’s share of the money. Although it was equally distributed across the country, I wouldn’t be 

doing my job if my state didn’t do that. California didn’t do bad either. If you would like to, you can combine the two questions. 

Mr. DEWINE. Mr. Chairman, members of the Committee, as you 

have pointed out, as the sponsor of the bill I believe that HAVA 

worked very well in the election of 2004. As far as my suggestion 

for what one or two things—to the Ranking Member one or two 

things that we need to be doing here in Ohio, I think we are working on those in House Bill 3 which I have sponsored. 

I think probably one of the most important things that we can 

do is codify as many of the directives that the Secretary of State 

has put out as possible. Put them into code, put them into law, put 

them in the books so that they are not left to discussion and debate, left to partisan nitpicking, days, weeks, hours, minutes before 

an election or even on election day. I believe if we are able to 

achieve that sometime this year, we will have made significant 

strides in ensuring safe, transparent, and fair elections in the state 

of Ohio. Thank you. 

Ms. MILLENDER-MCDONALD. Thank you so much. 

Mr. JACOBSON. Thank you. First of all, I think HAVA was helpful 

because it ended what could have been an interminable debate over 

what is the best way to take lessons from the 2000 election and it 

gave us a standard that we would all work to emulate and to 

achieve. 

Secondly, I think what we can do better and should do better, we 

should ensure that we have confidence in our elections by requiring 

every voter to show ID, by requiring that those who want to influence what goes on on election day have better, clearer guidelines 

35 

as to what they can do and what they cannot do so that we do not 

have some of the confusion. 

Thirdly, I think we need to make sure that we have well-crafted 

our voting machine deployment and standards so that we do not 

again face the questions that we have this year about whether or 

not the problem was the systems or their deployment, whether or 

not they were. There are so many issues that could combine to create long lines. We need to know what everyone will do so that we 

in the future will be able to prevent that from happening. 

Ms. MILLENDER-MCDONALD. Thank you. 

Mr. GARDNER. Thank you, Mr. Chairman. I, No. 1, wish we could 

have more fully implemented HAVA in the 2004 election but would 

like to congratulate early and look forward to legislation sponsored 

by Representative DeWine and in the Senate by Senator Kevin 

Coughlin of Cuyahoga Falls, as to improvements that will be made. 

There is no question in my mind that we will have good legislation 

in the weeks ahead. 

I think, again, to reiterate that I hope that this committee will 

listen to and respect the views and concerns expressed by local 

boards of election members or their association represented here 

today that we should not attempt to mandate an unproven technology so I am hopeful that we can at least relax or repeal or 

change some of which is already Ohio law and not necessarily 

speaking to the federal HAVA act. 

The final thing I think I would say is I understand the Secretary 

is going to be appearing before you today at some point and that 

Ohio does have—I served on a Board of Elections. I didn’t detect 

any partisanship on our board that interfered with our ability to 

conduct elections so I hope that is maintained in this date and I 

am not aware of any—I became a member of a Board of Elections 

when Tony Celebrezze was the Secretary of State. Actually, a fine 

Secretary of State in Ohio. 

I don’t believe any Secretary of State ever has abused his ability 

and his authority to appoint or remove members of a board of election. We might want to consider looking at that but I think, quite 

frankly, members of the Committee, not much to look at with respect to our strong bipartisan tradition in the state in carrying out 

important election duties. 

Ms. MILLENDER-MCDONALD. And we are not saying unwillingly 

abused. We are simply saying that these are things to place. Mr. 

DeWine does give an appearance of abuse or we would not say that 

seriously. We want to make sure. Mr. DeWine, your legislation 

does it speak to same-day voting or holiday voting or what? 

Mr. DEWINE. Correct. 

Ms. MILLENDER-MCDONALD. Does it speak to any variations of 

voting for the voters here in this state? 

Mr. DEWINE. Mr. Chairman, to the Ranking Member, it does not 

yet. We have had a series of robust hearings in the House Committee. There is a separate piece of legislation introduced by my 

colleague from Toledo that introduces the idea of no-fault absentee 

with the State of Ohio. That issue under House Bill 3 is getting 

lots of heavy discussion and debate. It will remain to be seen 

whether it fits in as a piece of this legislation. 

36 

Ms. MILLENDER-MCDONALD. We will be following your legislation. Thank you all so much. 

The CHAIRMAN. I want to thank all the members of the legislature. I appreciate the tough job you have. I appreciate the tenacity 

with which you do your job and the thoughts that you have. 

Ms. MILLENDER-MCDONALD. Thank you for coming. 

The CHAIRMAN. This is helpful to us today. We will continue to 

appreciate, any insight you have on HAVA, as it goes through its 

other phases. Also I want to assure you that our door is always 

open. 

Ms. MILLENDER-MCDONALD. My door is open to you, Mr. Chairman. 

The CHAIRMAN. Here in the state we talk to Democrats and Republican board of election members, not only for the 18th District, 

but from around the state. We are willing to listen. Our Ranking 

Member is Carson; Stephanie Tubbs Jones and members of the delegation are always open. With that, thank you for your time. 

We’ll move on to Keith Cunningham, President of the Ohio Association of Election Officials and Director of the Allen County Board 

of Elections; Michael Sciortino, the Director of the Mahoning County Board of Elections and prior President of the United Association 

of Election Officials; Michael Vu, Director of the Cuyahoga County 

Board of Elections; and William Anthony, Chairman of the Franklin County Board of Elections. I want to thank the gentlemen for 

being here today. We will begin with Mr. Cunningham. 

STATEMENTS OF KEITH CUNNINGHAM, PRESIDENT OF THE 

OHIO ASSOCIATION OF ELECTION OFFICIALS AND DIRECTOR OF THE ALLEN COUNTY BOARD OF ELECTIONS; MICHAEL SCIORTINO, DIRECTOR OF THE MAHONING COUNTY 

BOARD OF ELECTIONS; MICHAEL VU, DIRECTOR OF THE 

CUYAHOGA COUNTY BOARD OF ELECTIONS; AND WILLIAM 

ANTHONY, CHAIRMAN OF THE FRANKLIN COUNTY BOARD 

OF ELECTIONS 

STATEMENT OF MR. KEITH CUNNINGHAM 

Mr. CUNNINGHAM. Chairman Ney and members of the Committee on House Administration, my name is Keith Cunningham. 

I am the Director of the Allen County Board of Elections and the 

current president of the Ohio Association of Election Officials. 

Thank you for the opportunity to speak with you today. 

Let me begin by saying that despite the rhetoric and sometimes 

hysterical mania, the 2004 Presidential Election in Ohio was fairly 

administered and absent of fraud. That is not to say there were not 

some problems. However, those problems were isolated, not wide 

spread, and at worst, were the result of innocent and unintentional 

human error or circumstances that were simply not anticipated or 

were beyond the control of election administrators. 

Ohio election officials processed over three quarters of a million 

new registrations in 2004 resulting in a 12 percent increase in 

statewide voter registration. We successfully voted nearly 5.8 million people, the largest turnout in the history of our state. The acceptance rate of provisional ballots in Ohio was one of the highest 

in the nation at 77.9 percent. Let me state to you unequivocally; 

37 

Ohio election officials performed their duties in exemplary fashion 

on November 2, 2004. 

Following your lead with the Help America Vote Act, I would like 

to share some of the items the O.A.E.O. are currently advancing in 

our State Legislature to help us better serve the voters of our state. 

We believe Ohio should adopt no excuse absentee voting. We are 

not suggesting that no excuse absentee voting is a panacea. We are 

suggesting that it is a cost effective and easy to achieve measure 

that will provide an immediate albeit partial solution to long lines. 

We believe the right for anyone other than an election official to 

challenge a voter’s registration should be cut off at 20 days prior 

to election day. We do understand the role for challengers; however, we firmly believe that the rights of challengers must be fairly 

balanced with the rights of voters. Last minute challenges and lack 

of clear procedural guidelines under Ohio law proved most disruptive to many of Ohio’s voters in 2004. 

We believe that individuals and advocacy groups engaged in the 

registration of voters should be required to deliver those registrations to the appropriate Board of Elections or the Secretary of State 

within a pre-determined amount of time. Ideally no more than 10 

days. This will prevent thousands of registrations from being 

turned in at the last minute and, thus, increasing the risk that 

some voter’s names will be mistakenly entered or even possibly 

omitted from the registration rolls due to severe time constraints. 

We believe that individuals and advocacy groups soliciting registrations should be required to turn in all registrations they gather not just those they believe advance their cause or position. This 

is probably even more consequential than my previous point. In 

this scenario the person completing the registration form believes 

that they are being registered to vote, only to find on election day 

that they are not. In this instance, even a provisional ballot cannot 

help enfranchise this voter. 

We are in complete support of Chairman Ney’s efforts calling for 

the immediate and full funding of HAVA. Quite frankly, we must 

question Congress’s true depth of commitment to the principals set 

forth in HAVA if they are not willing to fully commit the funds 

promised and needed to implement these mandated provisions. 

We believe that the deadlines for HAVA compliance, along Mr. 

DeWine’s lines referring to voting machines, should be immediately 

adjusted to reflect the late start realized by the EAC and the Federal Government. We have only one chance to get this right and 

the risk that millions of federal dollars will go to waste is simply 

too great. The cost-benefit analysis demands that these deadlines 

be extended in order to best serve voters. 

On a personal note, I would like to express my extreme disappointment in the harsh behavior of a few members of the United 

States Congress during the certification of the Ohio presidential 

vote. In particular, I am deeply offended by Representative John 

Conyers’ call for an FBI investigation of Ohio’s election officials. 

The FBI is our country’s highest investigative agency for criminal 

matters. This affront to the integrity of my Ohio colleagues in the 

absence of any compelling criminal evidence should be considered 

an embarrassment by the other members of Congress. 

38 

Finally, as has been discussed here today, Ohio does have a bipartisan management structure within our election system. I believe it is a model for others to consider. Ohio’s election officials, 

Republican and Democrat, have demonstrated to this nation that 

even while partisan, we can commit ourselves to the higher ideal 

of fair and honest democratic elections. 

Again, thank you for the opportunity to present these remarks 

here today. 

[The statement of Mr. Cunningham follows:] 

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STATEMENT OF MICHAEL SCIORTINO 

Mr. SCIORTINO. Chairman Ney, members of the United States 

Congress House of Representatives Committee on House Administration, my name is Michael Sciortino and I am Director of the 

Mahoning County Board of Elections located in Youngstown, Ohio. 

Let me first say that it is truly an honor to be before you today 

presenting testimony regarding the Ohio 2004 election experience 

and The Help America Vote Act (HAVA) Implementation in Ohio. 

I will begin my testimony by sharing with you some of my experiences in administering the November 2, 2004 Presidential Election in Mahoning County. Next, I want to talk about Mahoning 

County’s journey in converting from an optical scan election system 

to a Direct Recording Election (DRE) system. I will then conclude 

my testimony by highlighting some of the work I have been engaged in with the United States Election Assistance Commission 

(EAC) as a member of the Standards Board and current Chair of 

the Standards Board Executive Committee. 

To begin with, the Mahoning County Board of Elections ran a 

solid election on November 2, 2004. The success we encountered on 

election day was due in no small part to the tireless work of our 

1,300 poll workers and talented and hard working board of election 

staff. In the months and days leading up to the election, we were 

keenly aware that the eyes of the world were truly watching. Ohio 

was THE Swing State. 

I can personally attest to the constant warnings of this notion by 

both the Kerry lawyers and Bush lawyers, whom I got to know 

very well weeks before the election. 

In administering the election, our approach in Mahoning County 

was to make our operation as transparent and open as possible; to 

ensure the candidates, lawyers, and most important, the voters, 

that our system was fair, accurate and accountable. Our message 

was simple. We had nothing to hide. I know the lawyers and candidates appreciated this message and quite candidly, the media did 

as well. 

In the months leading up to November, I watched our new voter 

registration numbers soar to record levels. In the 2000 presidential 

election year 8,500 new registrations were filed. In 2004 we had 

nearly 18,000. I also watched our absentee ballot requests sky rocketed from 12,000 in the 2000 election to 17,537 last year, a 61 percent increase. Boards of Elections across the state encountered 

similar experiences. 

In 2004 I had the pleasure of serving as President of the Ohio 

Association of Election Officials. My goal as President was to improve and provide Ohio Boards of Elections with as much communication on pending election administration issues as possible. 

With the help of Ohio Secretary of State Ken Blackwell and his 

staff, my goal was accomplished. 

Two and a half weeks before the election, Secretary Blackwell 

committed to providing daily telephone conference calls between 

the Secretary of State’s election administration staff and Ohio 

Boards of Election. Chairman Ney and members of the Committee, 

this unprecedented practice proved to be invaluable as we were 

able to improve communications and work through critical election 

issues. Questions regarding voter registrations, absentee voting, 

42 

provisional voting, election day challengers were answered in a 

timely and thorough manner. Moreover, these daily telephone conferences continued well into December addressing official canvassing issues and state-wide recount procedures. 

As an election official in Ohio who heard all of the allegations of 

poor election management surrounding the past election, I submit 

that these allegations were groundless. Ohio faced many hurdles in 

2004 but we proved that in Ohio we have good election laws administered by good people who want nothing more than to administer 

the ‘‘perfect election.’’ We all know that a perfect election does not 

exist, but in my mind it doesn’t hurt to strive for perfection. 

I want to switch gears now and talk a little bit about voting systems. A critical facet of HAVA rests with improving the way votes 

are cast. In Mahoning County, we began our search for a new voting system back in 1998 as our optical scan system was reaching 

the end of its useful life. We spent the next two years meeting with 

vendors and conducting test elections. 

In 2001, as HAVA became a reality, we were careful to select a 

system that would meet the impending federal requirements. We 

secured $3,000,000 from the taxpayers of Mahoning County for a 

new election system and began the conversion process. We completed the installation in 2002, and have now conducted 6 good 

elections using DRE. Mahoning County was a pioneer county in 

Ohio leading they way for improved election day balloting. 

Unfortunately, our success with DRE changed with the passage 

of House Bill 262 but, fortunately, Ohio Senate Bill 77 has been introduced that would permit HAVA-compliant machines to be 

grandfathered from the voter verified paper trail at least until the 

VVPAT becomes feasible. 

Ballot security and reliable elections will always be more than 

‘‘what type of voting machines do you have.’’ Instead, good elections 

are a function of the systems, procedures and people that make 

elections happen, as well as the voting equipment. In Ohio we are 

fortunate to have a particularly strong system of checks and balances with equal numbers of Democrats and Republicans watching 

each other throughout the process. 

I want to conclude my testimony now by examining the Election 

Assistance Commission. HAVA established the U.S. Election Assistance Commission. Central to its role, the Commission serves as 

a national clearinghouse and resource for information and review 

of procedures with respect to the administration of Federal elections. 

HAVA calls for establishment of two boards to advise the EAC: 

the EAC Standards Board and the EAC Board of Advisors. The 

EAC Standards Board is composed of 110 members drawn from 

State and local election officials. 

I am please to report that I am Ohio’s local election official serving on the EAC Standards Board. At the Standards Board winter 

meeting in January, I had the distinct pleasure of being elected by 

our membership to serve as one of nine Standards Board members 

to serve on its Executive Board. Most recently I was nominated by 

the Board to become the committee’s chair. 

I stand ready to serve Ohio as Chair of this Board and I am committed to helping the EAC implement HAVA in a consistent and 

43 

timely manner. I am fortunate to share Ohio’s experiences with the 

Standards Board and EAC as we work through important issues 

like drafting voluntary election system standards and administering Statewide Voter Registration Lists. 

I know that implementing HAVA across our 50 states and territories is challenging and the EAC truly has a tough job. But I want 

to assure this Committee the lessons I learned and experiences I 

have gained by administering Election 2004 in Mahoning County 

have trained me well for playing a key role in assisting the EAC 

to implement HAVA. Thank you. 

[The statement of Mr. Sciortino follows:] 

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STATEMENT OF MICHAEL VU 

Mr. VU. Thank you, Chairman Ney, Ranking Member MillenderMcDonald, members of the Committee on House Administration, 

and our Cuyahoga County Congresswoman from Cuyahoga County, 

Stephanie Tubbs-Jones, and for inviting me to speak on the topic 

of the 2004 General Election and the Help America Vote Act. 

This past year was amazing and could be categorized as the 

Olympics of Presidential Elections for Cuyahoga County. In fact, 

when the November general election was certified, it became the 

largest election Cuyahoga County citizens experienced with 

687,255 citizens going to the polls and casting a ballot. We had a 

68 percent turnout which may seem small, however, if we were to 

take away the inactive registered voters [per the National Voter 

Registration Act], Cuyahoga County had nearly a 90 percent turnout, a wonderful sign of a much anticipated election. 

Like in every election, separate and unique problems generally 

present themselves. This past election was no different. Considering the massive scrutiny and challenges that faced the Cuyahoga 

County Board of Elections, it is my belief the election was conducted in the most professional manner possible. 

There were incidences of long lines and power outages on election 

day, however, with the collaboration of many agencies, the Board 

of Elections responded and resolved each issue as quickly and effectively as possible. Although, the Board of Elections believes we conducted a good election, there are many areas of improvement and 

the 2004 Election, surely, was one to use as a guiding light to continue our efforts in election reform. 

Considering the enormity of the election, preparation for the 

2004 General Election began in 2003. The Board of Elections created a strategic plan in anticipation of the 2004 General Election. 

Public education initiatives; a countywide mailer; a Road Map to 

the 2004 Election Forum; an analysis of residual votes in the county; coordination with county and state agencies and our 59 cities 

and villages; a complete review of departmental procedures and collaboration with local companies were all made in an effort to mitigate major issues that could possibly arise. 

Many of these action steps were a result of the 2000 Presidential 

Election, including the need to educate voters to check for ‘‘chads’’ 

and to have poll workers use a demonstration ballot on every device before any official ballots were cast on any voting devices. 

There were election related issues that Cuyahoga County had to 

navigate through before the election. We had capacity issues in 

three main areas: registration forms, absentee ballot requests, and 

phone calls. 

With regard to registration forms, the Board of Elections saw interested organizations converging on Cuyahoga County from Washington State to Washington D.C. interacting with the public and 

registering them to vote. By the end of the deadline on October 4, 

2004, the Board of Elections processed 356,598 registration forms 

of which 162,020 were newly registered voters. This was 3 and 5 

times, respectively, more than what was experienced in the 2000 

Presidential Election. 

We had nearly 100,000 people request an absentee ballot which 

was 30 percent more than the 2000 Presidential Election. The 

52 

numbers of phone calls generated were considerably higher. In fact, 

we faced an equal amount of phone calls on the day of the registration deadline as we did for voting day in 2000. 

Another area of concern which Cuyahoga County experienced 

was the handling of incomplete registration cards. Currently, there 

is no statute or directive on how to handle incomplete registration 

cards. At issue is when a registration card is submitted prior to the 

deadline, but determined to be missing some vital piece of information, could the Board of Elections accept it as timely and allow the 

voter to cure their record after the deadline. Although we did not 

receive direction in this manner, we erred on the side of the voter 

and allowed them to cure their voter registration form. This is an 

item for state legislative action and should be remedied as quickly 

as possible. 

Local and national voter registration organizations were also a 

contributing factor that affected voters. On several occasions, we 

experienced a number of registration organizations holding on to 

completed voter registration cards for months or the cards were 

turned in after the registration deadline. In fact, in two days during the month of August the Board received 16,000 registration 

cards from one organization. 

In some cases, these cards were dated back in February and 

March of 2004. In order to prevent this from occurring in the future, we met with all local and national voter registration groups 

and asked them to submit, as a courtesy, the registration forms 

every five days. In another instance, we received over 3,000 voter 

registration cards one week after the October 4th deadline. In this 

case, we were unable to accept the registration cards. 

The timeliness of state directives also impacted our performance. 

The most conspicuous of these directives was the issuing of provisional ballots. The outcome was the 6th District Court of Appeals 

reversal of the lower court’s decision and instituting an additional 

provisional affirmation statement to be filled out by the voter. 

This consequently impacted the election day and post-election activities, where poll workers experienced last minute changes on administrative matters they had never experienced before. Also, the 

Board of Elections had to contend with the complex process of 

verifying and validating these provisional ballots. 

On the day of the election, we had polling location coordinators 

in nearly all 584 polling locations armed with cell phones to contact 

the Board of Elections in case of any issues or simply if a voter had 

a question that the poll workers did not have an answer. We purchased 654 additional punch card voting units for a total of 9,645 

for the county to disperse to ‘‘hot spots’’ as a result of the surge in 

new registrants in the County. 

Six zone stations were strategically placed throughout the county 

to respond. We maximized our capability to have additional computers and phone lines and we created phone banks in two separate county government buildings. 

Turn out was the largest issue that we had to contend with on 

election day. However, this only occurred in a handful of voting 

precincts out of 1,436. From different reports the longest line reported was two and a half hours coming from a suburban and 

53 

urban voting precinct. This is unacceptable and we are investigating why individuals had to wait as long as they did. 

Part of the lengthy lines can be attributed not to the lack of 

equipment, but as a result of voters waiting to be processed to receive a ballot. Also, we are attempting to comprehend how voters’ 

behavior and poll worker training issues play a part in creating the 

long lines. 

After election day there was one notable concern that we were 

aware of and had to address, provisional ballots. The direct result 

of ill-timed directives, litigation and court decisions brought concerns over how to consistently and uniformly verify and validate 

provisional ballots. 

In Cuyahoga County 25,309 provisional ballots were cast of 

which 16,757 were deemed valid and 8,552 were considered invalid, 

a 66.3 percent acceptance rate. In comparison to the 2000 Presidential Election the number of voters going to the polls in 2004 increased by nearly 100,000 voters, yet the percentage of individuals 

having to cast a provisional ballot proportionately decreased. 

I believe our public education efforts contributed to that decrease 

in percentages. However, the number of valid and invalid provisional ballots may indicate the confusion poll workers had on 

issuing the ballots and confirm the negative impact last minute 

changes had on poll workers and voters during the days leading up 

to and on the election. 

The passage of the Help America Vote Act was necessary for the 

country to bring accountability and awareness to elections in light 

of the controversy and division born out of the 2000 Presidential 

Election. The Help America Vote Act instituted many new changes 

and coupled with the National Voter Registration Act overhauled 

many components of election administration. 

It was a wonderful beginning to renew our efforts to create a 

more secure foundation for democracy. For many states, the principles laid out in the Help America Vote Act were instituted for the 

first time in the 2004 Election. Across the United States, HAVA requirements were implemented in order to raise the standards of 

our electoral process. 

The Help America Vote Act has indeed, made a positive impact 

on election administration. Voters have a safety net across all 50 

states, voters will have an opportunity to remedy any selections 

through second chance voting and the public can be assured the 

voter registration rolls will be more accurate as a result of the 

statewide voter registration system than in the past. 

The Help America Vote Act for its purely altruistic intentions 

contains three looming issues that deserve attention. I consider 

these the ‘‘penumbra’’ or gray areas that require specific definition. 

These include a definition of a permanent paper record; jurisdiction; and a single, uniform, official, centralized, interactive computerized statewide voter registration list. 

The Election Assistance Commission has been very helpful in establishing ‘‘best practice’’ guidelines and they should be thanked for 

their hard work and their proactive role in moving the Help America Vote Act along. However, there is no single body to give us a 

standard of acceptability and a definitive direction to comply with 

the Help America Vote Act. 

54 

Next year, 2006, will be the true test for the Help America Vote 

Act, when all of the requirements will converge. This will be the 

true test of whether all fifty states and territories are able to comply with the spirit of election reform. 

Thank you, again, for this opportunity to give testimony, and I 

would be more than happy to answer questions the committee 

members may have. 

The CHAIRMAN. Thank you, Mr. Vu. 

Mr. ANTHONY. [The statement of Mr. Vu follows:] 

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STATEMENT OF WILLIAM ANTHONY 

Mr. ANTHONY. Good Afternoon Mr. Chairman and honorable 

members of the Committee. I am pleased to represent the bi-partisan members and administration of the Franklin County Board 

of Elections today in my capacity as Chairman. I am also Chairman of the Franklin County Democratic Party, and I am a staff 

representative for the Ohio Civil Service Employees Association, 

Local 11. 

Mr. Chairman, there are five areas that I will address today: 

voter registration, provisional voting, voter information, voting machine allocation, and the misreported unofficial election results 

from Gahanna 1B. 

As the Committee is well aware, there were enumerable political 

organizations spending tens of millions of dollars on voter registration drives. In Franklin County alone, we processed more than a 

quarter of a million voter registration forms between January 1, 

2004 and the close of registration in early October. This was twice 

the registration activity as compared to the same period in 2000. 

Knowing that these registration drives were taking place, but 

also knowing that the Board had no authority to actually regulate 

them, we engaged each organization privately to ensure that each 

understood the policies and procedures of the Franklin County 

Board of Elections, the requirements of federal and state law, including HAVA, and encouraged them to submit their registration 

forms each week. 

As organizations submitted completed registration forms, Staff 

reviewed the forms and provided each entity with feedback as to 

recurring problems. By engaging in this proactive monitoring process, the Board protected those registering to vote and reduced possible occurrences of fraud. 

Second, Mr. Chairman is provisional voting. Ohio has been permitting the use of provisional voting since the early 1990’s. However, nowhere in Ohio’s laws will one find the words ‘‘Provisional 

Ballot.’’ Over time, individual county Boards of Elections developed 

their own rules and regulations governing these important decisions. 

Concerned about equal protection accusations, the Franklin 

County Board of Elections in a formal resolution requested on August 10, 2004, that the Ohio Secretary of State provide guidance 

on this important issue. No response was received until the 

issuance of Directive 2004–33 on September 16, 2004. 

While a federal appeals court ultimately upheld the letter of the 

Secretary’s interpretation, the resulting confusion, particularly in 

the thirty days immediately preceding the Election, was a detriment to the voters, our poll workers, and the electoral system. 

To help limit confusion within Franklin County, our Staff developed a nearly 400-page Street and Road Guide that was provided 

to each precinct that listed the assigned polling place for every address in the County. This allowed poll workers to assist provisional 

and other voters in finding the correct precinct in which their ballot would count. 

Additionally, since all of our poll workers had received training 

prior to the final Court decision, the Board mailed to each of its 

nearly 5,000 poll workers a detailed four-page letter outlining how 

70 

to administer provisional voting based upon the appeals court ruling. Because Franklin County took this and other positive actions, 

4 percent of our nearly 15,000 provisional ballots had to be disqualified for being cast out of precinct. 

The third category, Mr. Chairman, is voter information known in 

political circles as get out the vote, GOTV. Because of intentional 

or unintentional activities of others, voters in Franklin County received misinformation about election day activity. 

Approximately three weeks before the Election, the Board determined that so much misinformation had been disseminated that we 

responded by mailing a post card to every one of the 847,000 registered voters in the county notifying them of their correct precinct 

and voting location at a cost of more than $250,000 to the County. 

As I wrap-up my testimony, Mr. Chairman, I would like to address two situations in Franklin County that have been taken up 

by the conspiracy-theorists and internet-bloggers alike as evidence 

of fraud and their reason why Franklin County’s and Ohio’s election results cannot be trusted. These two situations are, of course, 

the long lines at voting locations allegedly due to the intentional 

misallocation of voting machines and the misreported, unofficial 

election night results from one of our county’s precincts. 

Yes, Mr. Chairman, and members of the Committee, there were 

long lines to vote in Franklin County, in all of Franklin County. 

Some have alleged that precincts in predominantly African-American or Democrat precincts were deliberately targeted for a reduction in voting machines thus creating the only lines in the county. 

I can assure you Mr. Chairman, and members of the Committee, 

both as a leader in the black community, Chairman of the local 

Democratic Party and a labor leader, and as Chairman of the 

Board of Elections that not one of these accusations are true. 

On election day, I spent several hours driving around the county 

in the rain and observed long lines in every part of the county: 

Urban and suburban neighborhoods, black and white communities, 

Democrat and Republican precincts. Long lines on election day 

were the result of three things and these three things only. 

First, nearly one hundred thousand more people voted on Election Day 2004 than during 2000. This is almost a 25 percent increase over the previous presidential election. Which brings me to 

the second reason. Despite the fact that we had a dramatic and historic increase in the number of voters compared to previous elections, the resources available to the Franklin County Board of Elections remained static. 

In 2000, the Board of Elections owned an inventory of 2,904 voting machines for 680,000 registered voters in 759 precincts. Four 

years later, in 2004, the Board of Elections owned an inventory of 

2,904 voting machines, the exact same number of voting machines 

as in 2000, a static resource that had to be spread even thinner to 

meet the increased demand of voting machines for 847,000 registered voters in 788 precincts. 

Knowing this, why didn’t we purchase more voting machines? 

Because of the passage of HAVA by Congress and Ohio’s House Bill 

262 requiring a Voter Verifiable Paper Audit Trail, all previously 

discussed plans to purchase additional machines for implementation in 2004 were canceled. 

71 

Third, and finally, the 2004 General Election ballot was exceptionally lengthy. In the city of Columbus alone the situation was 

particularly difficult as the ballot included eight long bond issue 

questions and a referendum in addition to State Issue One, school 

levies, and local options. 

The final situation, Mr. Chairman and members of the Committee, has been used by some in an effort to undermine to the 

credibility of the election results specifically and the benefit of electronic voting generally. On election night, as a part of the unofficial 

results, the Franklin County Board of Elections reported that candidate George W. Bush had received 4,258 votes in a precinct 

where only 638 voters had voted. 

Once the mis-reported result was discovered, full-time staff reviewed the election night report printed for the poll workers from 

each machine in the Gahanna 1–B precinct. The error was narrowed down to one machine, machine number 013717. Staff then 

generated a machine memory report directly from the 3 memory tables in the machine in question. Staff did the same for the cartridge used in that machine. The results from these two reports 

were then compared to the election night results tape generated by 

the machine for the poll workers and the actual recorded results 

were consistent across all three reports. The voting machine had 

functioned precisely as it was supposed to have and properly recorded 115 votes for Bush. Copies of these tapes are being submitted today for your review and inclusion in the official record. 

Mr. Chairman, Franklin County was the battleground county of 

the battleground state. Many people, whether they wished us well 

or ill, predicted a train wreck in Franklin County and Ohio. Because of the proactive attitude of our professional staff, their hard 

work and dedication, and that of our nearly 5,000 poll workers, 

Franklin County was not a train wreck. 

Do we have room to improve? Absolutely. To that end the Board 

conducted a thorough self-review and communicated this finding in 

our 2004 Report to the Community which I have submitted today 

for your review and for inclusion into the record. I am pleased to 

report to you, Mr. Chairman and honorable members of this Committee, that Franklin County rose to the challenge in Election 

2004, met its critics head on, and successfully administered an 

election that was fair, accessible, and accurate. Thank you very 

much, Mr. Chairman, and member of the Committee. 

The CHAIRMAN. Thank you. 

[The statement of Mr. Anthony follows:] 

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Ms. MILLENDER-MCDONALD. Mr. Chairman, before you get started, may I please ask Mr. Anthony to supply us with your testimony. We must have the copy of your testimony so that we can 

have it for my record as well as the record of the Committee. 

Mr. ANTHONY. Yes, ma’am. 

Ms. MILLENDER-MCDONALD. We have everyone’s but yours. 

Mr. ANTHONY. I am sorry. We just got finished with a couple of 

hours ago. We will provide it. 

Ms. MILLENDER-MCDONALD. Thank you. 

The CHAIRMAN. I will ask a few questions. I don’t want to dominate the entire time. I want to thank all of you for being here. I 

think you are probably one of the most important panels because 

you do this, and you do it all the time. You have a lot of good poll 

workers, and do a good job with all the things you have to deal 

with. Additionally, you are at the local level. I think it is important, as we put together the Help America Vote Act, that we consult the election center and the individuals that represent you. 

Also, I wish we could have gotten the Help America Vote Act 

quicker. I wish the EAC could have been put together quicker. One 

of the reasons it took us a long time was because we went through 

this line by line and literally had a lengthy conference committee 

where members actually sat there and actually read legislation 

until 5:00 in the morning. Time after time, members reread the 

bill, literally 30 times, Democrats, Republicans, staff, and everyone 

in the room. With this you don’t want to get it wrong. 

Now, it is not perfect, and that is why we are here today. I would 

appreciate your comments on HAVA. I am not blaming any one 

single entity or individual, but the delay Ohio had in implementing 

HAVA made things difficult. That brings me to my first question. 

I have some individual questions and some generic questions for 

anybody that wants to answer. 

Mr. Sciortino, I would like to address your concerns with HAVA. 

Let us reiterate that HAVA, in fact, does not say that Franklin 

County has to have the same system as Mahoning County or Belmont County or other counties. That is an individual decision of 

the states and the legislature. You do have the issue of keeping 

your DREs, do you not? To clarify, isn’t that a major issue in being 

able to implement the vote? 

Mr. SCIORTINO. Mr. Chair, that is precisely the major issue that 

Mahoning County is facing. As I mentioned in my testimony, back 

in 1998 we began looking at election systems wanting to get away 

from optical scan into a DRE-based system. We now have the DRE 

system. I am not advocating that the DRE system is a perfect system whatsoever. 

I am advocating that in terms of Mahoning County it is the best 

fit for Mahoning County. With the passage of House Bill 262 we 

are faced with either retrofitting our DRE machines with some 

type of voter verified paper trail mechanism which does not exist 

with the current election system and software. 

Or simply putting our DRE machines aside and having the state 

purchase the DRE machines and repurpose an optical scan system 

for Mahoning County. We spent $3 million on our DRE system 

which under the Help America Vote Act complies because we purVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00100 Fmt 6633 Sfmt 6602 E:\HR\OC\A790.XXX A790
99 

chased this system under the existing ’02 federal guidelines and it 

is HAVA compliant after 2000. 

But we face being noncompliant with the Ohio rules in 2006 so 

either we are grandfathered out of VVPAT or VVPAT is repealed 

or VVPAT or set aside for the time being where some workable 

standard for retrofitting will come into play or simply the state 

purchases our machines from us and purchases the new optical 

scanners. 

The CHAIRMAN. You had optical scanners at one time in 

Mahoning County. 

Mr. SCIORTINO. Right. 

The CHAIRMAN. In Georgia, when they converted from optical 

scans to DREs, they went from 7 percent under or over error rate, 

I hope I am quoting that correctly, which meant that under the 

DRE system they can scan 71,000 more people than under the optical scan. I don’t know who they are or who they voted for. It is irrelevant. 

It is important that 71,000 more people could be counted. Their 

vote could be counted under Georgia’s rates. Do you happen to have 

any statistics? You don’t have to provide them today, but do you 

have any statistics from Mahoning County where you switched 

from optical scan or where you count error under or over voting at 

that time? 

Mr. SCIORTINO. Chairman Ney, with our reporting under optical 

scan systems we were able to track over and under votes. Depending on what type of office or race you are targeting because you 

have drop-off in the ballot and for purposes of our discussions today 

we can just use the presidential election as the first office on the 

ballot. As you go down the ballot there is always drop-off. 

In other words, there are voters who consistently vote for the 

presidential ballot and as we get down to the local offices or the 

issues, I am not saying this is every time but there is a drop-off. 

In terms of percentages or statistics, I can tell you that our percentages for under votes, which I think are more critical, undervoting was an issue on the paper ballot system. 

We did not have a precinct count optical scan system that is compliant under HAVA. We had a centralized count optical scan system which means the voter votes his or her ballot. It is placed in 

a box and it is counted later that night at the Board of Elections. 

Our under-vote percentages were higher, five or six percent. 

Under the DRE, as you know, you either vote on the particular 

race by submitting your choices or you don’t. Under-voting was significantly reduced by way of DRE to less than a percent. In fact, 

this past election it was even less. I don’t have the actual percent 

but I could get it to you. 

I heard some numbers across the state and the panelist can comment if they know, but the amount of under-votes across the state 

on a punch card system was nearly 70,000 which is a very alarming number when you talk about the presidential election. The 

DREs certainly combated that problem and was one of the reasons 

why we moved from optical scan to DRE. 

Mr. CUNNINGHAM. Mr. Chairman, may I continue that conversation? 

The CHAIRMAN. Mr. Cunningham. 

100 

Mr. CUNNINGHAM. Our county has been running optical scan 

since 1995, the only county in the state. I think when we talk 

about optical scan we have to make sure we differentiate between 

precinct count and central count. Our situation on election day this 

year, I have about 45,000 ballots cast at the polls. There were only 

73 over-votes recorded so I think precinct count optical scan probably is comparable to DREs in the numbers dealing with residual 

votes. 

The CHAIRMAN. I have a question about the DREs themselves because there was the Paper Trail Bill. I would also like to address 

the people in the country that felt prior to the election that the machines would be rigged and all the things that were said about machines being fixed, etc. 

Maryland moved to address some problems with DREs to have 

them checked in some random sampling. I am sure you are aware 

of the nonscrutiny that the machines in the casinos go under, so 

that they are not fixed, and people can win large sums amounting 

to millions of dollars. We have had that discussion. 

At the time that the bill was introduced, if we had went to a system that would have required immediately that every state would 

have to have the paper trail, it might have caused complete chaos 

in the country. There was no way that could have been implemented at that time. If that was going to be considered, it should 

have been the original Help America Vote Act. It is great to discuss 

and debate these things, but to have implemented it would have 

been a problem. 

However, nothing in HAVA says you couldn’t have implemented 

it. Our state chose to have the paper trail. Putting aside the paper 

trail debate for a second, what security changes have been made 

to DREs? I have always argued that you can fix the machine to fix 

the paper trail. I am not a computer guru, but that should looked 

into. 

What about some random checks on DREs for states that implement a policy? The EAC can grapple with this. By the way, how 

you check these DREs for fraud? Does anyone have any thoughts 

on DREs or how to check for fraud? 

Mr. VU. There is a lot of discussion revolving around the security 

of this and I think this goes to the heart of the DRE devices. One 

of the things that has been implemented, in fact, in California was 

parallel testing and I think that would be a wonderful effort in actually conducting for all states that move toward the DRE is doing 

parallel testing to be able to determine whether fraud is occurring 

or not. 

It does mitigate some of the issues that we have with the VVPAT 

standards or the VVPAT requirements as we have today but I 

think parallel testing is one of the items that we should be discussing and hasn’t been discussed on a national level. 

Mr. SCIORTINO. Mr. Chairman, just to follow that up, prior to our 

election in Mahoning County we conducted a full 13–hour mock 

election day coordinated and monitored by our local League of 

Women Voters. They basically come in and pick any dozen machines off of the rack and conduct an election for 13 hours. It required volunteers. It required record keeping. 

101 

That type of random auditing if made a proper procedure or necessary and routine as part of the Board of Elections in terms of 

opening up these machines and allowing for independent 

verification as to whether they have been accurately checked and 

are calibrated. Robust and random audits I think is key because 

you mentioned the voter verified paper trail. 

I think the rules changed after the implementation of the Help 

America Vote Act. I am not saying it is necessarily a bad thing. I 

understand where people are coming from when they say, ‘‘We 

need a verified paper trail.’’ But at the other end, we have to allow 

them the opportunity to come in and learn more about the system. 

I think we do that maybe by parallel testing or some random audits, mock elections and to be a part of programming that to see 

how it is done. 

A lot of times people call these systems computers. They are not 

computers. Not in the sense that we use the terminology computer. 

They are more like a calculator. They are redundant systems of 

storing memory and that is basically it. But we have to open up 

our doors and sort of share that to get that message across. 

The CHAIRMAN. Let us discuss provisional ballots for a second. 

There has been discussion on the percentage count of provisional 

ballots. Now, the implication is that jurisdictions of the higher percentage count are somehow to be commended while those with the 

lower percentage count are to be criticized. I wonder, is that fair? 

Does this effectively punish the jurisdictions that have a good registration list? If every eligible voter is already on the list the provisional ballot rejection rate would be 100 percent. Any comments on 

that? 

Mr. CUNNINGHAM. Mr. Chairman, I believe those of us in the 

election business that do this every day are a little dismayed by the 

discussion that has been taking place the last couple of years because what is never discussed is the voter’s responsibility. 

Ms. MILLENDER-MCDONALD. The vote what? 

The CHAIRMAN. The voter’s responsibility is to register in a timely fashion, to change their address with us when they move, and 

to keep their voter registration current. Now, if all of that is done, 

the voter has no problem whatsoever. We certainly try on an ongoing basis through our local meetings and so forth to put that word 

out. Particularly as we get close to elections. 

I don’t think that the percentage of provisional votes counted is 

a reflection of board function. I think it is more of a reflection of 

voter function because boards were using the same criteria across 

the board to count provisional ballots. I believe in a county where 

there were probably a lower percentage of provisional ballots counted, it was more reflective that more unregistered people tried to 

vote in that county than what the board function reflected. 

Mr. SCIORTINO. Mr. Chairman, I think—— 

Ms. MILLENDER-MCDONALD. Mr. Cunningham, you are saying 

that provisional ballots and some of the inaccuracies that are being 

counted is left up to the voter. Am I understanding you on this? 

If I am not mistaken, you are putting all of the onerous on the 

voter as opposed to the local county elected officials having some 

type of education program that is ongoing because I don’t know 

102 

about Ohio, I haven’t looked at your immigration percentages, but 

we have 87 languages spoken in California. 

In fact, more than that now. There are many who perhaps are 

not cognizant of this or are not readily aggressive enough to come 

forward and ask for this. I am not sure whether or not we should 

change which totally depends, if I am understanding you correctly, 

that provisional ballots or the lack of intelligence on how to move 

with that, should be left up totally to the voter. 

Mr. CUNNINGHAM. I think you misunderstood me with all due respect. Provisional ballot is voted because there is some anomaly in 

the voter’s registration. I certainly would not even attempt to make 

you believe that is all the responsibility of the voter. Boards of 

Elections certainly do enter data incorrectly from time to time or 

make mistakes. 

But there is also a very large percentage of provisional ballots 

that could be avoided if voters were to—perhaps if we were to 

spend a little more time educating voters and voters would spend 

a little more time educating themselves. 

Ms. MILLENDER-MCDONALD. Absolutely. 

Mr. CUNNINGHAM. My point was in the discussions over the last 

couple of years one thing that has been absent in all of the discussions has been any identification of voter responsibility in this 

equation. I am not advocating that in lieu of Board of Elections responsibility but I don’t think we do ourselves any good. If we also 

in the course of holding Boards of Elections accountable and talking about what is required of them we are not doing ourselves any 

good. We also don’t educate the voter better as to what is required 

of them. 

Ms. MILLENDER-MCDONALD. I agree with you on that. Thank 

you, Mr. Chairman. 

Mr. VU. Chairman, I think you were talking about the acceptance rate. That is one of the things that, as I stated in my testimony, the high percentage that Ohio had and Cuyahoga had relative to accepting the provisional ballots may be also on the reverse 

side of this that we were accepting it which is an outstanding aspect of our staff to be able to accept them. 

But it also may be an indicator as to what occurred on election 

day and what confusion there was regarding provisional ballots on 

election day. It goes back to some of the directives that we were 

sent prior to the election, the time frame between what we had to 

implement. The court decisions also, mind you, and some of the 

things that we had to institute. The poll workers had to be educated prior to the election. 

The CHAIRMAN. I want to ask an additional question about that. 

We will go to Mr. Anthony. 

Mr. ANTHONY. I am sorry. I thought you were going to ask the 

question first. You know, when it comes down to the whole provisional voting aspect of this, unlike my colleagues here I chair our 

Board of Elections. I don’t do the day-to-day operations of it but I 

do know that in the past years prior to this election we had conducted our provisional voting differently. We had allowed folks to 

vote and then it was the bipartisan board’s responsibility to take 

a look at those that were in question to see if they were actually 

voting in our county or not or if we could accept them. 

103 

We had asked for some clarification on that because we had an 

inkling that things might change here in Ohio. As I said in my testimony, we had asked for clarification in August of 2004. We got 

no response back until September when the directive came out. 

Ms. MILLENDER-MCDONALD. Who were you supposed to get a response from? 

Mr. ANTHONY. From the Secretary of State’s office. 

Ms. MILLENDER-MCDONALD. That is what I thought. 

Mr. ANTHONY. That last minute maneuvering with all this stuff 

knowing good and well because I was also part of a law suit in my 

role as a party chairman against the Secretary of State for making 

that decision to make provisional voting only allowed in the precinct where our voter lives. I believe my colleagues also will tell 

you that is not quite the way we have done it in the past elections. 

Coming so close to the eve of election created the turmoil and the 

confusion, I believe, that a lot of folks had as to where they were 

supposed to vote. I believe in Franklin County how we ended up 

having such good numbers in our provisional voting, one, because 

we took a proactive position to actually do, and we paid for this 

itself with no HAVA money, to do advertising on public radio with 

my counterpart from the Republican party telling folks exactly how 

to register to vote, how important it is to register to vote, and also 

to get out and vote. 

Now, we did that. We found some money in our own budget and 

we paid for that. We believe that helped us to keep our numbers 

down somewhat. Then we took a proactive stance on mailing out 

information to all of our voters at a cost to our county. We did that 

because we knew that there would be problems with provisional 

voting. 

Not only did we do that but we also produced a Road and Atlas 

Guide that we put at every voting location so that if you came in 

there and you happened to be at the wrong polling location because 

there was a lot of confusion with the challengers and law suits flying, folks had no idea. It could have been a bigger mess. Those 

Road and Atlas Guides allowed our coworkers to at least tell folks 

where to go, which precinct they should go to based on where they 

live and based on their voter registration information. 

What I think ought to happen, and the Franklin County Board 

of Elections feels should happen, we should have a no-excuse absentee voting which is AKA early voting. I believe that should happen. I believe that we should go to early voting and I believe that 

the election day should either be a holiday or an employer should 

allow folks time to go vote. 

The CHAIRMAN. On the holiday week we talked about that during 

the Help America Vote Act. We couldn’t ascertain whether we 

would be encouraging more voting or whether people would go on 

vacation. I am not saying it was good or bad, but we had a huge 

debate for days on that. 

Mr. CUNNINGHAM. Miller Lite would probably advocate the holiday. I have to take some exception here. I really hate to do it at 

my colleague’s expense. My county has always counted provisional 

ballots in the home precinct. I believe law has always been very 

clear on that matter. 

104 

Now, if there were questions and the Board wanted clarification, 

I understand that but I think Ohio law has always been very clear 

that a ballot must be cast in the precinct in which you live. Our 

county did nothing different in this election than we have ever 

done in regards to county provisional ballots. 

Ms. MILLENDER-MCDONALD. Mr. Chairman, may I say that your 

law provides you the opportunity to only have persons fill out provisional ballots in the precinct by which they are registered. Am I 

correct on what you said, Mr. Cunningham? 

Mr. CUNNINGHAM. Heretofore in Ohio provisional ballots have 

been used by people who have moved since the voter registration 

or have failed to update the voter registration prior to the deadline. 

Ms. MILLENDER-MCDONALD. That is correct. 

Mr. CUNNINGHAM. We have always endeavored. In fact, we even 

have a transmittal slip that if you come into a precinct and you are 

not in the book, the first thing our poll workers have been instructed to do is call the Board of Elections to see if we can direct 

you to the correct precinct. We have a transmittal sheet that we 

use because usually the person comes into this precinct and they 

say, ‘‘We are sorry. You are not registered.’’ 

Ms. MILLENDER-MCDONALD. And is this the practice that you did 

on this last election? 

Mr. CUNNINGHAM. Yes, ma’am. 

Ms. MILLENDER-MCDONALD. So, therefore, you did not follow 

HAVA because HAVA said that you have the autonomy to give that 

provisional ballot to a person irrespective of whether they were inside of their precinct or not and then allow that ballot to be counted later. 

Mr. CUNNINGHAM. No. We were discussing there the traditional 

Ohio provisional ballot. 

Ms. MILLENDER-MCDONALD. That is correct. 

Mr. CUNNINGHAM. We had HAVA ballots available as well and 

they would be issued if a voter insisted on voting. We tried as 

much as possible to direct a voter to the correct precinct and we 

always have done that. 

Ms. MILLENDER-MCDONALD. When you say a HAVA ballot, what 

is different? 

Mr. CUNNINGHAM. A HAVA provisional? 

Ms. MILLENDER-MCDONALD. Yes. What is different than just a 

provisional ballot? Did you not just have provisional ballots irrespective of whether it was HAVA or not? Did you identify that as 

a HAVA ballot? 

Mr. CUNNINGHAM. Yes, we have basically in our county HAVA 

provisional ballots. 

Ms. MILLENDER-MCDONALD. Because it was in conflict with their 

regular law? Is that the reason why? 

Mr. CUNNINGHAM. It didn’t serve the same purpose. The traditional provisional ballot in Ohio is to accommodate a voter that has 

moved or their registration is incorrect. It is not to enfranchise—— 

Ms. MILLENDER-MCDONALD. This is what I am saying. That goes 

across the board, across the nation. 

Mr. CUNNINGHAM. Yes. 

Ms. MILLENDER-MCDONALD. Irrespective of that with the HAVA 

law—— 

105 

Mr. CUNNINGHAM. If we attempted to send you to the correct precinct and you insisted on voting in this precinct, we gave you a 

HAVA ballot. According to court order, you were also then given 

the affidavit saying you understood. 

The CHAIRMAN. I want to move on to one other question. I want 

my colleagues to be able to ask questions on some other issues. On 

the provisional voting, I think Mr. Anthony said that the rest of 

Ohio had provisional voting, but didn’t have a provisional ballot 

necessarily within the law. Is this correct? 

Mr. ANTHONY. Yes, sir. 

The CHAIRMAN. One of the issues we had with the Help America 

Vote Act was this: people from different parts of the country would 

come to me and say, that they were turned away from the polls because of race. They were turned away from the polls because of 

some condition, or they were turned away from the polls because 

of their political party. Now, in some cases that might be genuine. 

We won’t say it hasn’t happened. 

In some cases it may not have happened, but the idea of provisional voting, is so important. I discussed this with Mr. Hoyer, our 

colleagues, civil rights groups, and members both sides of the isle. 

Provisional voting means that you are not turned away from the 

polls. 

Now, in Ohio, I know there are cases where somebody walked in, 

and I know some of the people this has happened to, and said, ‘‘I 

want to vote.’’ Somebody without malice said, ‘‘You are not on our 

polls.’’ They then walked out and said, ‘‘I wasn’t given a chance to 

vote.’’ They felt disenfranchised for whatever reason. 

So provisional voting, and, in a way, the Help America Vote Act, 

codified the existing rules on provisional balloting in Ohio, and 

made it clear that you have to give them a ballot. Now, I know that 

local boards, all of you, Democrat and Republican, are smart 

enough to say, ‘‘By the way, it looks like you are not registered in 

Belmore County anymore. You are now in Monroe County.’’ But 

that person insists, ‘‘I still want that ballot.’’ ‘‘You take it.’’ The 

Help America Vote Act says you accept it no matter what. 

Now, counting it is a different story. Counting it is left to local 

state law. The idea in the provisional voting was that it would 

guarantee the right to cast a provisional ballot. I just wanted to 

clarify that about provisional voting. 

Let me go to my last question and then move on to my colleagues. The long lines. Mr. Vu, I think you mentioned in your testimony that the longest recorded wait time was two and a half 

hours. It took place in the suburbs. We have heard people claiming 

10 hours. I respectfully quoted you to the U.S. House because I was 

managing the electoral college on the House side for the majority 

party with Mr. Larson, who was also managing the House side. I 

quoted about the lines with regards to the machines, where machines were placed, or were not placed, in certain minority precincts. 

I didn’t quote either one of you because I didn’t have enough evidence. That is not putting anybody on the spot. I am just saying 

that he addressed the long lines. Anything to add on the long lines? 

The second question I guess I want to ask you is, do you think we, 

106 

the Federal Government, should cure your long-line problem if you 

have one? Those are the two questions I have. 

Mr. ANTHONY. There were long lines in Franklin County. As I 

said in my testimony, they were in all of Franklin County. The 

problem we had in Franklin County was that we did not have 

enough machines. I know there were folks out there that claim we 

purposely took machines out of black areas and moved them into 

white areas as a way to somehow suppress the black vote. 

If that was our intention, it certainly didn’t work in Franklin 

County because there were 50,000 votes and most of the votes 

came from the core city. What happened was purely numbers. We 

did not have enough machines. We had an increase in voter registration and we count all of our 847,000 votes as active voters and 

we allocate machines purely number wise the best that we could 

based on the 2000 election and the turnout in the 2000 election. 

There were population shifts and there were areas that grew more 

than other areas. We at least tried to have two machines for each 

precinct and the long lines happened. On election day all heck 

broke loose. 

Mr. Chairman, we don’t have a large staff but our first order of 

business on election day is to make sure that those machines that 

are out in the voting area are working and that folks can vote. 

That took pretty much the better part of the day for us. After that 

we started taking a look at our limited resources of our employees 

and trying to get machines out to areas that needed them. 

We did the best we could. Our whole intent on election day was 

to have brand new machines by 2003. That didn’t happen because 

we had House Bill 262 kick in on us and it placed a whole new requirement on the types of machines that we could purchase. 

Also, we could not lease additional machines because the machines we have were, I think, Danier. We don’t have machines just 

sitting out there waiting to be leased. Plus, we couldn’t have 

bought more machines even after we knew that this House Bill 262 

and some of the other HAVA requirements. Danier was not on the 

approved list of vendors that Secretary of State had previously approved so even if we could have bought some more, they weren’t 

on the list. 

Not only were they not on the list, but our machines didn’t meet 

the HAVA standards and certainly not the House Bill 262 standard. We were between a rock and a hard spot which is why we are 

trying to get clarification on provisional voting and why we did all 

the other steps that we did to try to at least make the process go 

a lot faster. What would help us currently, I mean, right now we 

have an injunction on the Secretary of State not to force us to use 

scan machines here in Franklin County. 

We feel that the long-range cost of those machines far outweighs 

the benefit of them. We would like to continue with our DREs and 

go to the next generation of DREs. Our hands are tied right now 

because we have House Bill 262 and also some of the HAVA requirements. And we are between a rock and a hard spot because 

those regulations we have to comply by them by the 2006 election. 

Any help you could give us and maybe some help in some machines we could take a look at and those that we think would fit 

better in Franklin County. We just don’t believe the scan machines 

107 

will work in a large county such as ours. That is what we could 

use some help on, to slow it down or some regulation so that we 

could come into compliance and still take care of our voters. 

Mr. CUNNINGHAM. Boards of Elections historically handle turnouts anywhere from 13 to 40 percent the other three years of the 

cycle. We sort of toiled in obscurity those three years and everybody pays attention in a presidential year. 

Boards of Elections are funded and staffed by in large by what 

their turnout normally is. I really don’t know why it would surprise 

anybody that when suddenly the turnout spikes to the largest in 

the history of the country that the lines would be longer. 

Now, the other thing that plays into this is when these equipment allocations are made it is usually before the registration 

deadline. If you have allocated equipment to a precinct and all of 

a sudden at the very last minute, this goes to the issue we talked 

about today, 600 or 700 new registrations get dropped on you in 

that precinct 30 days out, there is not much you can do to adjust. 

You just have to try and manage that as best you can. 

We probably will not see more than a 15 to 20 percent turnout 

on May 3rd in Ohio and the line problem suddenly won’t be there. 

Either we have to equip and adjust to 70 plus percent turnouts 

which I think probably would be wasteful in the long run to our 

county governments or we have to just figure out a way to flex on 

the big years and understand that there is probably going to be a 

little—I think every Board of Elections in the state prior to election 

day was telling people in their community, ‘‘Be prepared to spend 

a little more time voting this year. We just expect a higher turnout.’’ 

The CHAIRMAN. I am going to move on. Mr. Vu. 

Mr. VU. I just wanted to respond to your questions about Cuyahoga County specifically. Long lines occurred in urban and suburban precincts. Unlike Frankly County where there were not enough 

resources we had enough resources. We had 10,000 voting devices. 

Almost approximately nearly 10,000 voting devices. 

There was a study and analysis that was done by the paper The 

Plain Dealer, where they assessed what our resources were and 

also where we distributed those voting devices. We did it across the 

board and we had one device for every approximately 115 registered voters. I think that was a really good number to use for it. 

What we learned, though, is two things. Again, as I stated in my 

testimony, we saw voting behaviors as well as poll worker issues 

that we didn’t expect. One of those voting behavior issues is that 

we had three precincts at a location, as the Congresswoman had 

stated earlier, where we might have three or four precincts in a 

polling location. When a voter sees a line, they will go to that line 

as opposed to going and finding their precinct. 

Some of the actual experiences from talking with voters on election day that I heard was that they had waited in line for an hour 

to find out that they were in the wrong line. Also on election day 

we found out that our poll workers, in some cases, and I visited 

some of these polling locations and precincts on election day, were 

confused as to the provisional voting portion of it and all the other 

extraneous part of the election that were coming last minute. 

108 

Things like challenges. Things like pre-challenges prior to election 

day so there were a lot of things revolving in and around that area. 

What The Plain Dealer article found out is that our allocations 

of our voting devices was evenly across the board between suburbs 

and urban precincts. One of the things that we also found out is 

that poll workers didn’t utilize all of their voting devices on election 

day and that is something that can be easily remedied for future 

elections. That is a concern, as far as your question, and concern 

about funding level as Mr. Cunningham approached you. 

We are not funded at 100 percent capacity for every election. 

That is due, in part, because of the nature of the way we conduct 

elections and the four-year cycles that we have. If we were going 

to do it, and which I advise as we move toward election time, that 

local Boards of Elections get funded not only for devices and equipment, but also for public education efforts also. 

The CHAIRMAN. It was an unusual election. I am not saying that 

we should criticize all these people who turned out at the polls. 

They die to vote in Iraq and Afghanistan. Real quick, yes or no, because I do want to move on to my colleagues. Do you believe that 

a federal commission, say the EAC, or the U.S. Congress, should 

set how many machines you have, or should it be done within the 

state or the current process here? 

We will start with Mr. Cunningham. 

Mr. CUNNINGHAM. If you want to do it efficiently, you should 

leave it to the local jurisdiction. 

Mr. SCIORTINO. As a member of the standards board and the 

EAC I think there is a debate with the state’s rights versus the 

federal sovereignty and I think it needs to be left to the states to 

come up with that. 

Mr. VU. I would say it needs to be left for each local Board of 

Elections to determine that number. 

Mr. ANTHONY. I would say each level of jurisdiction should have 

that responsibility. 

The CHAIRMAN. Thank you. 

The gentlelady from California. 

Ms. MILLENDER-MCDONALD. Thank you so much, Mr. Chairman, 

and thank you all. You are very professional men and you are very 

honorable. In fact, it brings me to the point that there are all honorable men and worthy women here anyway testifying from this 

great state of Ohio. 

I am going to start with Mr. Cunningham. Mr. Cunningham, you 

did mention that you believe that Ohio should adopt a no-excuse 

absentee voting because partially it would solve the long lines. I 

couldn’t agree with you more so if you would get with your representative, Mr. DeWine, who is presenting this HB House Bill 3. 

He is in a quandary as to whether or not that should be part of 

that bill so maybe you can help him by telling him that this is 

something that you at the local level deem important for him to 

have in his field. 

Mr. CUNNINGHAM. The association has presented that testimony. 

Ms. MILLENDER-MCDONALD. Very good. Secondly, and I am 

happy that you are open to that, I hope you are also open to sameday voting as well as some of the variations of voting that are now 

beginning to take place. 

109 

Mr. CUNNINGHAM. I heard you mention it earlier. I am not sure 

what you mean by same-day voting. Do you mean same-day registration? 

Ms. MILLENDER-MCDONALD. That is right, registration. 

Mr. CUNNINGHAM. I would be adamantly opposed to same-day 

registration. 

Ms. MILLENDER-MCDONALD. And why is that? 

Mr. CUNNINGHAM. It is a recipe for fraud. I am sorry. That is not 

a workable solution. 

Ms. MILLENDER-MCDONALD. Even with electronic devices now 

and high technology that can be verified? 

Mr. CUNNINGHAM. There are only three states that use it. That 

is probably the reason why. I don’t think that is a good idea in a 

practical application. 

Ms. MILLENDER-MCDONALD. You mentioned also in your statement that you believe that persons, advocacy groups who solicit 

registration forms should be required to turn in all registration 

forms and not just those that are endemic to their cause. That is 

against the law if they don’t. That is really against the law. 

Mr. CUNNINGHAM. Provided that you know. 

Ms. MILLENDER-MCDONALD. They are supposed to do that and if 

there is anyone who is doing that practice, we should know about 

that. Nobody is supposed to withhold any registration forms irrespective of whether it is in opposition to what you think or not. 

And given that provisional ballots can and do enfranchise voters 

and so I do believe in that irrespective. 

The other thing that you mentioned that Congress and our chairman is absolutely calling for immediate and full funding of HAVA. 

That is really a position of all members of Congress, not only those 

of us who are on this committee. Congress really does have a deep 

commitment to the principles set forth in HAVA and, thereby, 

should fund that. You know that we have a war and the President 

is calling for some $80 some billion. We, too, have to be cognizant 

of our fiscal constraints and all states will have to as well because 

of the various amounts of money that is being taken off for other 

reasons. 

The last thing that I would like to ask you, Mr. Cunningham, is 

that were you giving active funding from the state to carry out the 

mandates on HAVA? Did you get that funding in time? Secondarily, were the last-minute directives from the Secretary of State 

in conflict with Ohio’s law as it has been outlined by Mr. Anthony 

many times, the House Bill 262? 

Mr. CUNNINGHAM. The first part of the question is the funding? 

Did I receive enough funding? 

Ms. MILLENDER-MCDONALD. Yes. 

Mr. CUNNINGHAM. Well, there is never enough money. 

Ms. MILLENDER-MCDONALD. Exactly. 

Mr. CUNNINGHAM. There is never enough money. I am not going 

to take issue with the Secretary of State on that matter. Could we 

have used more? Of course you can always use more. 

Ms. MILLENDER-MCDONALD. And I don’t intend for you to do 

that. I am not putting you in that position but was there a formula? 

110 

Mr. CUNNINGHAM. Yes. I believe the formula was evenhanded 

across the state. I don’t think that I got any less than anybody else. 

Ms. MILLENDER-MCDONALD. Was it in adequate time? 

Mr. CUNNINGHAM. I don’t have any complaints with the time 

frame. I think it flowed to us. Quite honestly, the last minute directives were only a part of the confusion. There were a lot of confusing things going on before the election leading right up to it. 

Ms. MILLENDER-MCDONALD. They were not the last-minute directives solely. 

Mr. CUNNINGHAM. Absolutely not. 

Ms. MILLENDER-MCDONALD. There were other things. 

Mr. CUNNINGHAM. Political activists were very involved. We have 

never had attorneys in our office. We have never had activists in 

our office. I mean, they were quite honestly very disruptive, very 

distracting. This is probably the single most—I am pushing my 8th 

year and the November 2004 election was probably the single most 

difficult thing I have ever tried to manage in my life. 

Ms. MILLENDER-MCDONALD. They were not supposed to be disruptive. Or were they? 

Mr. CUNNINGHAM. Well, for instance, the card we send out to voters to tell them where they are registered, what your precinct is, 

I spent the better part of an afternoon arguing with somebody that 

the type on the card was too small when it is the same card we 

have been sending out for some time. It is the default setting of the 

printer. My belief, ma’am, is that not everyone in November of 

2004 was dealing in good faith. There were people on the ground 

and present in Ohio—— 

Ms. MILLENDER-MCDONALD. Not everyone in 1870 was dealing in 

good faith. I mean, you never have everybody dealing in good faith 

no matter what year it is. 

Mr. CUNNINGHAM. I am confident my colleagues were dealing in 

good faith. There were people that were tempting to create chaos 

and confusion in hopes that out of it would come something that 

could be exploited. 

Ms. MILLENDER-MCDONALD. That is unfortunate. 

Mr. CUNNINGHAM. I would probably say to you that I think the 

four people at this table, and we are outnumbered, by the way. Our 

association has far more women than it does men. 

Ms. MILLENDER-MCDONALD. Thank you very much. 

Mr. CUNNINGHAM. I think it is absolutely stunning that the election officials in Ohio pulled the election off in the fashion that they 

did, managed it the way that they did, and succeeded as they did 

in light of the absolute chaos and confusion that was taking place. 

Ms. MILLENDER-MCDONALD. The confusion did not come from 

anyone particular group. Am I correct? 

Mr. CUNNINGHAM. No, ma’am. 

Ms. MILLENDER-MCDONALD. They were on both sides of the political spectrum? 

Mr. CUNNINGHAM. It is everybody. Yes, ma’am. 

Ms. MILLENDER-MCDONALD. Okay. Fine. 

Mr. CUNNINGHAM. I am not taking any issue with one group or 

other group. 

Ms. MILLENDER-MCDONALD. Mr. Sciortino, first of all, you should 

tell your state representatives that Ohio was the swing state. 

111 

Thereby, this was the reason that all eyes were on Ohio. Please tell 

that to your state reps that were here earlier, especially Senator 

Jacobson? 

Mr. SCIORTINO. I have told him that personally but I will do it 

again. 

Ms. MILLENDER-MCDONALD. Sometimes the second time. It is by 

rote. You have to constantly remind people. You also said that 

there were two and a half weeks leading up to the election. There 

were changes in directives and other things, last minute directives 

and that type of thing. Also Mr. Blackwell provided daily telephone 

conversations to you guys. 

Did you not have his total input for the two-and-a-half weeks? 

Did you have a statewide or how wide spread was your campaign 

election education so that you would have been able to have some 

intelligence on a lot of things that perhaps could go wrong or just 

the mere fact of educating the masses on what to expect? 

Mr. SCIORTINO. Leading up to the election, again, it was my job 

as president of our association to try and conceptualize all the 

issues that were facing the association. Again, as time progressed 

it is not as though we knew what was going to happen next because this was not a regular election year. There were issues about 

some late directives but that wasn’t the impounding reason. 

Ms. MILLENDER-MCDONALD. But given that your state was the 

swing state, did you not recognize that you were going to have an 

abundance of new registers? 

Mr. SCIORTINO. Sure, and that is where we had dialogue between 

the county boards, ourselves. There was some litigation popping up 

over provisional voting and what not. We met with the Secretary 

and asked the Secretary for additional resources in terms of improving communication. 

Ms. MILLENDER-MCDONALD. Was it given to you? 

Mr. SCIORTINO. The output of that was this daily—— 

Ms. MILLENDER-MCDONALD. Was that given to you, the funding 

for more outreach and education? 

Mr. SCIORTINO. Not specifically to each county but the daily telephone conferencing with regards to how on a daily basis boards can 

better handle these election issues. 

Ms. MILLENDER-MCDONALD. But that was only two and a half 

weeks out. We are talking about really months to get this thing 

going. 

Mr. SCIORTINO. In all honesty, I don’t think a lot of the major 

issues hit until September, October. I was more worried about administrative issues, you know, handling questions from these lawyers that come in. Then as questions started to come in to our 

boards, I was getting other questions from other Boards of Elections. Let us try and communicate better. That was our biggest 

goal. 

Ms. MILLENDER-MCDONALD. Those administrative questions 

should have been answered by you. How about poll workers? Were 

they trained adequately? 

Mr. SCIORTINO. I can only speak for Mahoning County and I am 

sure across the state at least a month out we began training poll 

workers the presidential year. As well as in the primary every poll 

worker was trained as well as our auxiliary poll workers. 

112 

Ms. MILLENDER-MCDONALD. It should be more than one month. 

Although you are not part of the Secretary’s state association but 

it should have been ongoing really for at least a year out. We recognize that this was a presidential year. You being the president of 

the Ohio Association of Elected Officials certainly you would have, 

and I would like to think, that you would have been able to discern 

early on that this was going to be that rash of registrants and provisional ballot requests and you would have been able to educate 

people much earlier than a month or two. 

Mr. SCIORTINO. Well, are we talking about the voters themselves 

or poll workers? 

Ms. MILLENDER-MCDONALD. Poll workers so that they will then, 

in turn, speak to various voters. A lot of the lines could have been 

circumvented it seems to me if poll workers were more educated to 

some of the things that would happen and they would direct them 

to the various precincts within the areas they were supposed to go 

to. 

Mr. SCIORTINO. Well, two things. We do training following state 

guidelines in terms of poll worker training and what not. I tend to 

do it 30 days out because any sooner than that you run into whether or not retention in terms of what they have learned is going to 

carry over into election day. I think that is what we do in our county. I think that is pretty consistent across the state. The other 

thing is there are financial burdens because we pay our poll workers to come to training. 

Ms. MILLENDER-MCDONALD. Are you suggesting that House Bill 

262 is in conflict with HAVA? 

Mr. SCIORTINO. How is that? 

Ms. MILLENDER-MCDONALD. In that it seems that all of the law 

that you follow tends to be the Ohio state law and not the integration of HAVA with that law or the HAVA law as opposed to the 

Ohio law. 

Mr. SCIORTINO. Well, we made every attempt to, and I think we 

have, train in terms of poll workers train on the new provisions 

contained in HAVA absolutely. I don’t know, you know, what specific portion of House Bill 262 gave additional resources for the 

county to pull upon other poll workers. Obviously the voter verified 

paper trail issue comes into play with 262. Our colleagues, every 

Board of Elections tried to have every new training source available to bring HAVA into play. 

Ms. MILLENDER-MCDONALD. Mr. Vu, speak about poll worker 

training and HAVA is very strong on that. Does that House Bill 

that we keep hearing about and that Mr. Anthony spoke about 

many times, 262, does it talk about poll worker training? 

Mr. VU. House Bill 262 outlines voter education and the allocation of $2.5 million, actually $5 million, 2.5 going to the Secretary 

of State to educate the entire state and then the other 2.5 allocated 

on a formula basis to all the various counties with a minimum of 

$5,000. Then this past election we did not receive any of that $2.5 

million. None of those monies were appropriated to any local Board 

of Elections that I am aware of. I am sure that occurred. 

Ms. MILLENDER-MCDONALD. And, yet, that is an Ohio law that you were supposed to get $2.5. 

Mr. VU. That is correct, for local Boards of Elections. 

113 

Ms. MILLENDER-MCDONALD. Local boards. 

Mr. VU. Let me, if I may, describe some of the training efforts 

that we did. Of course, we can always do better with our poll workers. As you probably know, poll workers are citizens like you and 

I. On election day they serve as election officials for a 13-hour time 

frame. There are some retention issues that we have. 

In this past election we had training that occurred during the 

primary election and also the general election. The primary election 

occurred in March and the general, of course, in November. During 

the general election we overhauled our poll worker manual and instituted a highlight page because many poll workers have done this 

for years. 

In fact, in once instance we actually gave a resolution to one of 

our poll workers because they had done it for 50 years. As you 

probably can tell, they go to a poll worker training year in and year 

out. One of the complaints that we hear is, ‘‘It is the same stuff. 

Why should we go?’’ We institute different things to kind of change 

the format, especially this year. 

Ms. MILLENDER-MCDONALD. You need to tell them that they 

have to go. 

Mr. VU. We did. It is a requirement for Cuyahoga County for 

them to attend, although they had by statute met their obligations 

for primary election training. Of course, we wanted them for the 

November election to have training for our poll workers. The reason why is because there are so many different things that they 

had to be aware of like chads. 

Also things like various directives that had occurred. By the time 

that we were able to train our coworkers was almost after the fact 

of when we started receiving the directives. For Cuyahoga County 

we have to recruit 6,000 poll workers for election day, plus 500 as 

a reserve for election day. This becomes a mass last-minute education effort on election day to send out all this information and on 

election day we actually were sending out more information for poll 

workers. You could just imagine—— 

Ms. MILLENDER-MCDONALD. Election day is too late to be sending out any information about what one should be doing, for Heaven’s sake. 

Mr. VU. That is what we were told. 

Ms. MILLENDER-MCDONALD. No wonder these people were so 

flustered because you are sending out these directives. The registration cards that you mentioned in your statement which were 

missing some vital information but you did not receive directions 

in this matter or directions from the Secretary of State? 

Mr. VU. That is correct. I believe the reason why is because there 

is nothing within state statute that talks about incomplete registration cards. One of the things, the National Voter Registration 

Act, that was passed in 1993 essentially did was erred on the side 

of the voter and that is the way we have proceeded once we did 

not receive any indication from the state. 

Ms. MILLENDER-MCDONALD. The best practice tool kit that was 

put out by EAC, did any of you follow that leading up to the election given that they have the best practices for many states that 

have proven to be very useful? 

114 

Mr. VU. Yes. I did look at the best practice guidelines. I actually 

did. There are a couple of check-off lists that I used as well as the 

Cuyahoga County Board of Elections used. In fact, what I did was 

used that but also coupled it with the election center checklist that 

they had and also what was unique for Cuyahoga County. So I essentially created a separate template of best practices for Cuyahoga 

County. 

Ms. MILLENDER-MCDONALD. Before I get to Mr. Anthony for the 

last questioning, Knox County. Who takes care of Knox County? 

Any of you? 

The CHAIRMAN. That is me. 

Ms. MILLENDER-MCDONALD. I was told that there were many, 

Mr. Chairman, students who went to a neighboring school that had 

to wait until 4:00 a.m. in the morning to vote. 

If that is not a 10-hour plus time span given the fact that voting 

starts at 7:00, 8:00, and that they were in line at a reasonable time 

and had to wait up through 4:00 a.m. the next morning, my goodness. What in the world are we going to do to circumvent that from 

happening again with this younger population who we are trying 

to get to buy into the political process? Mr. Cunningham. 

Mr. CUNNINGHAM. First, I think it should be noted that was one 

precinct in thousands in the state of Ohio. 

Ms. MILLENDER-MCDONALD. Anytime one voter is 

disenfranchised or has to stand in line that long, it is as if everyone 

throughout this country. 

Mr. CUNNINGHAM. I do not run Knox County. My understand—— 

Ms. MILLENDER-MCDONALD. I am sorry? 

Mr. CUNNINGHAM. I said I don’t really have anything to do with 

Knox County or run it but my understanding through the association is that some of that issue is attributable to what we have been 

talking about where literally thousands of registrations were 

dropped on the Board of Elections at the registration deadline and 

they were simply overwhelmed and unable to compensate for that 

many people, that many new registrations in that precinct. I am 

not saying that is totally the reason but in part the tremendous 

number of new registrations in that precinct played a role in the 

length of those lines. 

Ms. MILLENDER-MCDONALD. Mr. Anthony, will you clarify for me 

what you mean by saying, and I put this in quotes because I am 

trying to say it verbatim, ‘‘Provisional ballot voting is not like we 

used to do or accustomed to doing. You know there would be problems with provisional ballots.’’ Can you kind of explain what you 

are talking about here? 

Mr. ANTHONY. Mr. Chairman, Madam Committee Member, I 

have been on the Board of Elections, I believe, this is my 7th year. 

The way we have always done our provisional balloting or voting 

in Franklin County is that we always try to err on the side of the 

voting. We feel if a person took the time to come out and go vote, 

that we should do what we can to make sure that person’s ballot 

is counted. 

In the past what we have done in Franklin County is if a provisional vote comes before us, before the Board of Elections, the staff 

takes a look at it and makes sure that they are a registered voter, 

115 

that they live in the precinct, and they basically qualify. Those 

folks’ vote would be counted. 

The ones where we had concerns about, they would bring them 

before the bipartisan board, two Democrats and two Republicans, 

and we would take a look at those and then they would tell us 

what their concerns were. We would make every effort to either 

allow that person to vote, what items they could vote on that ballot 

if they are voting out of precinct. There may be some local options 

or maybe a split—— 

Ms. MILLENDER-MCDONALD. Right. 

Mr. ANTHONY. What we would do then is we would allow that. 

If they were a qualified voter, then we would accept that vote. It 

would be done by bipartisan. All four of us would have to agree to 

it. 

Ms. MILLENDER-MCDONALD. And that qualified voter would be 

whom? 

Mr. ANTHONY. They would be in our voter file. 

Ms. MILLENDER-MCDONALD. Irrespective of whether they were in 

the precinct by which that provisional—— 

Mr. ANTHONY. That is correct. If they were on our voter rolls as 

a registered voter. 

Ms. MILLENDER-MCDONALD. Okay. So provisional ballots were 

distributed rather fairly across the counties irrespective of whether 

those voters were actually voters in that precinct? 

Mr. ANTHONY. What we did was we allowed—anybody that wanted to vote could vote and I think that is the clear distinction. Congressman Ney said it real clearly there that we instructed out poll 

workers if they come in there, you let them vote. You don’t sit 

there and argue. You let them vote. Give them their right to vote. 

We in the past figured that stuff out at a board meeting. That is 

where it was figured out. 

Ms. MILLENDER-MCDONALD. Also, Mr. Anthony, you said that 

there were increased voter registration and you did not have either 

the machines to fulfill the voters’ wishes to vote. Am I correct in 

that assessment of what I think you said? 

Mr. ANTHONY. Mr. Chairman, Madam Congressperson, that is 

correct. 

Ms. MILLENDER-MCDONALD. And, yet, Mr. Vu said that there 

were 10,000 election devices. Would that not have been—could that 

not have been some devices used to help this gentleman in his 

county or what were you saying? 

Mr. ANTHONY. Mr. Chairman, Madam Congressperson, we use 

two different voting systems. He uses a punch card system. We use 

a DRE type system in Franklin County so there is no way we could 

have shared equipment and there was no way that I could have acquired additional equipment because of the reasons I stated earlier 

which were: 

1. They would not have met the HAVA requirements; 2. They 

wouldn’t have met the Senate Bill 262 requirement; 3. They 

wouldn’t have met the requirements on the Secretary of State’s 

preferred vendor’s list; 4. There would have been maybe some compatibility issues with our current system by bringing in new Danier 

machines. They were Danier machines that we had. Because of all 

116 

of that it became totally not prudent for us to even try to pursue 

this. 

Ms. MILLENDER-MCDONALD. It was very honorable of you to 30 

days out map outline differences of precincts as you outlined here 

where people should go to vote. It was three weeks, you say, from 

this information. Yet, you put out these cards to folks to let them 

know where they were supposed to go. Am I correct on what you 

said there? 

Mr. ANTHONY. Yes, ma’am. It is two different things there. We 

had found out that a lot of groups had gotten the voter registration 

information from the Secretary of State’s office. That information 

is probably six months old so it is not real current information. We 

provide the information to the Secretary of State’s office. Then 

what happened—— 

Ms. MILLENDER-MCDONALD. Are you saying information from the 

Secretary of State’s office is old? 

Mr. ANTHONY. It is six months beyond ours. We give to him and 

then we—— 

Ms. MILLENDER-MCDONALD. How can that be? 

Mr. ANTHONY. All that is getting ready to change now with the 

new voter registration system. During this time frame—— 

Ms. MILLENDER-MCDONALD. That is awful. 

Mr. ANTHONY. What happened was a lot of those groups purchased those lists from the Secretary of States and had the wrong 

precinct on them. That information was sent out to voters telling 

them where to go vote. There were phone calls out to some voters 

to tell them where to go vote and it was not the correct information. We took it upon ourselves that we should do that. 

Ms. MILLENDER-MCDONALD. So your Secretary of State was 

blaming you guys for this information. 

Mr. ANTHONY. The other part of this, too, if you have got—these 

guys probably know this. 

Ms. MILLENDER-MCDONALD. You can just answer yes or no on 

that. 

Mr. ANTHONY. Yes. What happened is we are taking in voter registration forms on a daily basis so our stuff is up to date. Our information is up to date. We transmitted to the Secretary of State’s office. I am not sure how that process works. 

Ms. MILLENDER-MCDONALD. Obviously they are not checking it 

or even implementing it if it is six months late for Heaven’s sake. 

Mr. ANTHONY. At any rate—— 

Ms. MILLENDER-MCDONALD. You don’t have to answer that. You 

have already done that by your silence. 

Mr. Chairman, thank you so much. After Ms. Tubbs-Jones we 

would like to introduce you to what you have told us what would 

be some of the things that we can improve HAVA after the 

gentlelady speaks. 

The CHAIRMAN. Just for the record, Knox County is a wonderful 

county that I represent. 

Ms. MILLENDER-MCDONALD. I think it is because it sent you to 

Congress. That is correct. 

Ms. TUBBS-JONES. Mr. Chairman and Ranking Member, gentlemen thank you very much for coming this afternoon. I am sitting 

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117 

ing Member so I don’t get as much time as they do in asking questions or getting answers so I would appreciate if you could to restrict your answers specifically to my question. Otherwise, I will 

run out of time and not get to ask all the questions I would like. 

I, again, would like to thank all of you for coming. 

Let me start with Mr. Cunningham. Mr. Cunningham, how many 

people vote in Allen County? 

Mr. CUNNINGHAM. Total registration of 67,000. Turnout is 50 

some thousand depending on the election. 

Ms. TUBBS-JONES. Mr. Sciortino. 

Mr. SCIORTINO. Yes. 

Ms. TUBBS-JONES. How many people vote in New York County? 

Mr. SCIORTINO. We have about 190,000 registered voters. Roughly close to 70 percent turn out. 

Ms. TUBBS-JONES. Mr. Vu, Mr. Anthony, I know the answer to 

that question for both of you. I spend a lot of time in both your 

counties. 

Mr. Cunningham, in the conversations that we have been having 

about absentee balloting and all those other things. One of the 

things that I want to assure and all of us want to assure is that 

every vote counts. In some communities that means different 

things for different people. How many workers do you have on election day? Pollers? 

Mr. CUNNINGHAM. Approximately 600. 

Ms. TUBBS-JONES. Approximately 600. 

Mr. CUNNINGHAM. Right. 

Ms. TUBBS-JONES. How many do you have, Mr. Vu? 

Mr. VU. 6,000 plus. 

Ms. TUBBS-JONES. 6,000. It is a lot easier to manage 600 than 

6,000. 

Mr. CUNNINGHAM. I have a staff of five and he has a staff of 70 

or 80. 

Ms. TUBBS-JONES. Regardless of that, sir, but it is a lot easier 

to manage 600 people than it is 6,000. 

Mr. CUNNINGHAM. I would say it is all relative, ma’am. 

Ms. TUBBS-JONES. Okay. Well, I see I am not going to get an answer out of you on that one, Mr. Cunningham. Let me go forward 

to something else and say to you one of the things that is important and we are looking at, all of us recognize that poll workers 

often will say, and I heard Mr. Vu say this, that, ‘‘I’ve been working at a polling place for 20 years.’’ ‘‘I’ve been working here 15 

years.’’ ‘‘I’ve been doing this all my life and no matter what the 

mandate says, I am going to do it like this anyway.’’ 

Not just elections but anywhere. Pretty fair statement. Conceptually it is almost like being in management. People say management is like oil and water. The directors are the oil floating on top 

of the water and the people are at the bottom. The oil doesn’t stay 

at the bottom of the glass. The directors stay on top. You are familiar with what I am talking about as a manager. 

What I am trying to get to is that conceptually all of us could 

have done all the things we need to do on election day to assure 

a perfect election but a poll worker could have said, ‘‘The hell with 

them. I am not going to do it like that. I’ve been doing this all my 

life and I am going to keep doing it.’’ 

118 

Which meant that they control how many machines were put up, 

how fast the people made it through the process, whether or not 

they were given a provisional ballot, all of those other things. This 

is not degradation to poll workers because I love poll workers. I am 

an elected official and I love poll workers. 

Without them we wouldn’t have a process. Conceptually those 

are the kind of things that you can’t control as a manager or on 

election day. I will go on to my next question even though that 

might have been a statement which is what we do in Congress occasionally. 

How much money, Mr. Cunningham, did you receive for voter 

education in Allen County? 

Mr. CUNNINGHAM. None. 

Ms. TUBBS-JONES. How much money did you get, Mr. Sciortino, 

for voter education in your county? 

Mr. SCIORTINO. I didn’t get any. 

Ms. TUBBS-JONES. Mr. Vu, how much money did you get for voter 

education in your county? 

Mr. VU. None. 

Ms. TUBBS-JONES. Mr. Franklin—Mr. Franklin, I am sorry. Mr. 

Anthony, how much money did you get in your county for voter 

education? 

Mr. ANTHONY. We got zero from the state but we have 200,000 

from our own internal funds. 

Ms. TUBBS-JONES. You got none from the Secretary of State or 

any state organization? 

Mr. ANTHONY. That is correct. 

Ms. TUBBS-JONES. And you are all aware that the Secretary of 

State received money from voter education from HAVA. Are you 

not, Mr. Cunningham? 

Mr. CUNNINGHAM. Yes. 

Ms. TUBBS-JONES. Wouldn’t it have helped you in this process 

had you received any money for voter education? 

Mr. CUNNINGHAM. Obviously, yes, ma’am. 

Ms. TUBBS-JONES. And it might have cured some of the issues 

that were floating around throughout this election had you received 

any of that money. Correct? Another interesting thing for me is 

HAVA requires the Secretary of State to come up with a plan to 

meet the HAVA requirements. Are you aware of that? Are all of 

you aware of that? Have any of you been brought into a meeting 

by the Secretary of State to help put together a plan for Ohio? 

Mr. CUNNINGHAM. No. 

Ms. TUBBS-JONES. Have you been asked? 

Mr. CUNNINGHAM. No. 

Ms. TUBBS-JONES. Have you been asked? 

Mr. SCIORTINO. No. 

Mr. VU. No. 

Ms. TUBBS-JONES. Have you been asked? 

Mr. ANTHONY. No, ma’am. 

Ms. TUBBS-JONES. And you are the people where the rubber 

meets the road. Is that correct, sir? Gentlemen? 

Mr. CUNNINGHAM. Yes. 

119 

Ms. TUBBS-JONES. It would have made sense for you to have 

been brought to the table for party create in Ohio. Don’t you think 

so, sir? 

Mr. SCIORTINO. Yes. 

Mr. VU. Yes. 

Mr. ANTHONY. Yes, ma’am. 

Ms. TUBBS-JONES. Mr. Chairman, I know my time is up. Gentlemen, I thank you for the opportunity to speak with you this afternoon. I look forward to future opportunities. Please let me hear 

from Cuyahoga County. I take an oath to represent all the people. 

I welcome your comments about elections and I look forward to 

helping you in the future. Thank you very much. 

The CHAIRMAN. To the panel, just real quick, a question to Mr. 

Cunningham. You talked about a requirement that groups submit 

all registrations they gather, not just for the candidate they favor. 

Did you hear of groups starting registrations? 

Mr. CUNNINGHAM. I don’t have any empirical data that would 

stand up in a court of law or anything like that but it has been 

pretty well rumored and talked about that it did take place. 

The CHAIRMAN. But you don’t have any data on it? 

Mr. CUNNINGHAM. No, but I think we certainly have people that 

claim they filled out voter registrations. The problem is we don’t 

know who circulated those registrations so we have no way to go 

back. 

The CHAIRMAN. Mr. Vu, you mentioned one who dumped 16,000 

registrations on you in August and they were dated March and 

February? 

Mr. VU. Some of them, yes. 

The CHAIRMAN. Was it a certain group or across different groups? 

Mr. VU. There was one specific group. That group was Project 

Vote. 

The CHAIRMAN. Project Vote. Has anybody told you why they did 

that? 

Mr. VU. No. There was no explanation. From my understanding 

it was to start the process to reach a certain number from my understanding but no one directly came in and told me why they were 

submitting the registration cards like they did. 

The CHAIRMAN. Thank you. How about the implementation of the 

ID requirement, briefly. How did that go? We haven’t touched on 

that. I am just curious because there isn’t an ID requirement in 

HAVA. 

Mr. CUNNINGHAM. It was confusing. We did manage to work it 

out. Probably the biggest problem—— 

The CHAIRMAN. When we created HAVA we provided a lot of latitude. You may not have a driver’s license, so we gave out bank 

card stickers. We gave a lot of latitude, I know we put that into 

the bill, which probably should have caused—— 

Mr. CUNNINGHAM. It caused the poll workers more problems than 

it caused us personally in the office. The other issue was it took 

us—when that provision was ordered to take place when we begin 

to start tracking who registered by mail, our software didn’t have 

a field in it for that so we had to do it by hand until we could 

quickly get the software to do it. We are through it, though. It will 

be okay. 

120 

The CHAIRMAN. So you feel more comfortable? 

Mr. CUNNINGHAM. It will be better next time, sir. 

The CHAIRMAN. Also, were there any bad reactions from voters? 

Mr. CUNNINGHAM. There was mixed reaction. In our county some 

voters it is like when you ask them for ID at the bank. Some people 

appreciate it and some people get offended by it. I would say it was 

pretty mixed all in all. 

Mr. SCIORTINO. I would agree. 

The CHAIRMAN. I will clarify for you. I am sorry. First-time voters. 

Mr. SCIORTINO. First-time voters, correct. I agree with Keith. I 

don’t want to expound anything more. I was allowing individuals 

who didn’t have that on their registration card to—I was providing 

notice of that before the election—to get that in as quickly as possible because if we can solve a problem before election day, if I can 

target who is going to be a provisional voter and try and get them 

on the roll before election day, that solves a problem. It is going 

to allow that voter to go through the process. On election day let 

us flag that voter registration book and that voter and ask them 

that question and get that ID. Some didn’t like it, like Keith said, 

but I think we have a better handle on it now. 

The CHAIRMAN. Mr. Vu. 

Mr. VU. I would say the exact same sentiments as the two gentlemen to my right. The only other item that I would add to that 

also is that when we start implementing issues like ID requirements and trying to train poll workers as to a first time by mail 

registered voter per HAVA we start being very concise and specific. 

Again, this becomes a poll worker training issue which we need to 

get better at and in due time it will mature. 

One of the things that we learned out of this is that poll workers 

were, again, similar to like the primary elections were asking individuals that were supposed to provide identification so there was 

some miscommunication on that end as to what the poll workers 

were doing. 

Ms. MILLENDER-MCDONALD. Mr. Chairman—oh, you want him to 

answer this question. 

The CHAIRMAN. Mr. Anthony. 

Mr. ANTHONY. I have the same answer. It generally worked very 

well for us and it was a poll worker training issue. The report that 

we submitted to you we are talking about trying to be a little—trying to do more poll worker training partnering with our high school 

and university level groups to try to help us. 

The CHAIRMAN. Gentlelady. 

Ms. TUBBS-JONES. I think the gentlewoman needs to raise one 

more question if she is permitted to do that. 

Ms. MILLENDER-MCDONALD. Mr. Chairman, thank you very 

much. Mr. Vu, just one more question, or quick series of questions. 

In fact, the Cuyahoga County Board of Elections made the decision 

to not follow a directive of the Secretary of State with regard to the 

provisional ballot. Is that correct, sir? 

Mr. VU. I apologize that I need to elaborate on this. We had a 

forum, a road map to the 2004 election forum where we stated that 

there was a directive and that we were going to err on the side of 

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121 

ing, is that if the voter insisted that they were in that precinct, 

that we would give them that provisional ballot. 

Of course, this was contrary to a directive that we had received 

because we had specifically stated and asked for clarification on 

this directive as to whether or not we could issue a provisional ballot. It was the issuing portion of it. 

Ms. MILLENDER-MCDONALD. Right. 

Mr. VU. Whether we could issue a provisional ballot to the voter 

and the answer to that was no. Of course, that went to litigation 

and the appeals court, 6th District Appeals Court, said it was parallel to what the Board of Elections in Cuyahoga County thought. 

Ms. MILLENDER-MCDONALD. In fact, the Secretary of State said 

to you if you don’t follow his directive, he threatened every member 

of that Board of Elections for choosing to make that claim. Did he 

not? 

Mr. VU. That is correct. We received a letter from the Secretary 

of State’s office that if we did not follow the directive that the director and its board may be dismissed. 

Ms. MILLENDER-MCDONALD. Thank you. I better follow up on 

that. Was this the only county where that threat was made by the 

Secretary of State or was it all of you? 

Mr. CUNNINGHAM. I wasn’t threatened. 

Mr. ANTHONY. It was implied. 

Ms. MILLENDER-MCDONALD. I am sorry? 

Mr. ANTHONY. It was an implied threat. 

Ms. MILLENDER-MCDONALD. Sir, threats are not implied. They 

are directed. 

Mr. ANTHONY. Yes, ma’am. 

Ms. MILLENDER-MCDONALD. They are direct threats. Threats are 

not implied. 

Mr. ANTHONY. We didn’t receive communication. 

Ms. MILLENDER-MCDONALD. Why is it that your county was the 

only one where you were threatened or the members of your board? 

Mr. VU. I believe it was out of the forum. There was an article 

that was written as a result but there was no communication on 

our end from the Secretary of State’s office asking for clarification 

of what was said in the forum. It was an article that was written 

as to what our position was relative to the provisional voting that 

prompted the letter to be directed to the Cuyahoga County Board 

of Elections. 

The CHAIRMAN. Did you deem it to be a threat or the Secretary 

of State’s perception of following current law? 

Mr. VU. It was the Secretary of State. According to the letter it 

was the Secretary of State and the Board of Elections following the 

law. 

Ms. MILLENDER-MCDONALD. If you did not then? 

Mr. VU. That any and all including dismissal of the Board and 

its director would be—— 

Ms. MILLENDER-MCDONALD. And that is in your law? 

Mr. VU. It is the prerogative of the Secretary of State and the 

authority of the Secretary of State. 

Ms. MILLENDER-MCDONALD. No, it is not in the law. 

The CHAIRMAN. It is actually in the law. 

122 

Mr. CUNNINGHAM. We are appointed by the Secretary of State 

and he has the authority to remove us from office if he thinks we 

are not doing our job. 

The CHAIRMAN. Whether we like it or not it is in the law. 

Mr. CUNNINGHAM. Yes. He is the boss. 

The CHAIRMAN. Whether we agree or not he carries out the law. 

Ms. MILLENDER-MCDONALD. Therefore, it is not bipartisan by 

any means. 

Mr. CUNNINGHAM. I don’t think it is fair to say that because the 

situation in Ohio is—— 

Ms. MILLENDER-MCDONALD. Let me just leave this, sir. It is my 

time to do that, sir. Mr. Chairman, I will do this and be done with 

it. Volunteers from all over the world took part in the Fair Election 

International Project spearheaded by global exchange, an international human rights organization. 

In December the Organization released a report summarizing the 

election observations conducted by 15 election experts and democracy advocates from five continents who observed voting activities 

in Florida, Ohio, and Missouri. 

The report concluded that, ‘‘Despite reforms undertaken in response to the 2000 election, confidence in and the equity of the 

United States electoral system continues to be compromised by ambiguities and election standards, partisan oversight, and problematic voting equipment. All of the practices the coalition agreed 

needlessly undermined voter confidence and the integrity of the 

United States election system.’’ I thank you. 

The CHAIRMAN. Let me just close by thanking my colleagues. 

This is something that should be aired and it is a good thing that 

I can do it. We also have a bipartisan group. I am assuming some 

of you are Democrats. 

You have been a wonderful panel. We surely appreciate your 

time. Also on behalf of all the election people that I know on both 

sides of the aisle, they do a very, very decent job, and I think all 

parties are alike in their performance. Thank you very much for 

your testimony. 

We are going to take a five-minute recess. 

[Whereupon, at 3:38 p.m. the committee recessed to reconvene at 

3:52 p.m.] 

STATEMENTS OF KEN BLACKWELL, OHIO SECRETARY OF 

STATE; DANA WALCH, DIRECTOR OF LEGISLATIVE AFFAIRS, 

OFFICE OF THE OHIO SECRETARY OF STATE; PAT WOLFE, 

ELECTION ADMINISTRATOR 

The CHAIRMAN. It is a pleasure to have the Secretary of State 

Ken Blackwell here, and also Dana Walch from the Secretary of 

State’s office. We also have one other person. 

Mr. ANTHONY. Pat Wolfe. 

The CHAIRMAN. I know who she is. I wanted to read her nice biography. She is from Shacklyn County. 

Mr. ANTHONY. Absolutely. Here you go, Mr. Chairman. 

The CHAIRMAN. I just want to take a second. Pat Wolfe has been 

in the election profession for 21 years. She served as both the Director and Deputy Director of Shacklyn County Board of Elections, 

one of 16 counties I represent. I specifically brought her here today. 

123 

Ms. MILLENDER-MCDONALD. It was the Secretary of State who 

brought her. 

The CHAIRMAN. We endorsed it. From 1984 to 1992 she served 

as Assistant Elections Administrator and Director of Elections and 

she joined the Secretary of State’s office in ’92. She is a member 

of the National Association of Election Directors. 

She was only the third State Election Administrator in the nation to receive the certified Elections Registration Administrator 

Certification in August of ’98 from Auburn University. I just wanted to say hello. With that we will begin with Mr. Walch. 

STATEMENT OF DANA WALCH 

Mr. WALCH. Thank you, Mr. Chairman. Chairman Ney, members 

of the Committee on House Administration, thank you for providing me the opportunity to testify before you today. My name is 

Dana Walch and I am the Director of Legislative Affairs for Secretary of State Ken Blackwell. For background purposes, I have 

also served the Secretary of State’s office as the Director of Elections and the Director of Election Reform, overseeing our implementation of the Help America Vote Act of 2002 (HAVA). 

Today I would like to discuss Ohio’s progress in implementing 

the requirements of HAVA. While we have had bumps along the 

way, Ohio is well on its way to meeting all of the requirements of 

HAVA. I will discuss not only the progress we have made with 

HAVA implementation, but also the difficulties we have faced. 

Ohio has been a leader in HAVA implementation. While many 

jurisdictions have complained that there was not enough time to 

meet the requirements of HAVA, the State of Ohio has embraced 

the change and moved forward from the very beginning. We were 

one of the first states in the nation to release a Request for Proposal (RFP) from voting machine vendors to purchase new voting 

equipment to meet the voting system standards in HAVA. 

We qualified three vendors providing five voting systems to offer 

to our counties. Through our negotiation process, we secured the 

best pricing, warranty, and maintenance package in the country. 

Once we completed our process of selecting vendors, we posted our 

Vendor Proposal Evaluation Findings Report on our website so that 

other jurisdictions could use it as a guide if they chose. In short, 

we believe we had the most comprehensive, transparent voting machine procurement process in the country. 

We have also made great strides on the statewide voter registration database. We have built the statewide database and put the 

infrastructure in place to the 88 county boards of elections. In the 

2004 general election, Ohio had 71 of its 88 counties on the statewide system. We currently have 81 of our 88 counties on the system with the remainder to come on board in the coming months. 

We feel very confident that our statewide voter registration database will be completed well in advance of the January 1, 2006 

deadline in HAVA. 

We have in place other requirements of HAVA such as the development of an administrative complaint procedure, the posting of 

voter information at polling locations, and the creation of a toll-free 

system for voters to verify if their provisional ballot was counted. 

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We had all of these requirements in place for our March 2004 primary election. 

We also met the provisional ballot requirements of HAVA. Ohio 

has had a system of provisional balloting for over 10 years, but 

some modification was necessary due to HAVA. The issuance and 

counting of provisional ballots was an issue that was litigated right 

up to election day in Ohio. The major issue was the definition of 

the word jurisdiction. 

We feel, and the courts agreed, that HAVA was very clear in 

stating that the definition of jurisdiction was at the discretion of 

the states. In our state, jurisdiction is defined as the precinct. This 

court action forced our office to issue a number of different directives regarding provisional balloting as we approached election day. 

Now that this issue has been litigated and clarified by the courts, 

our implementation of HAVA provisional ballots will be much easier in the future. 

While we have made great progress in the State of Ohio in meeting the requirements of HAVA, we still have a long way to go. Due 

to a number of factors, we have been unable to begin purchasing 

new voting equipment for our counties. The first obstacle was the 

security concerns raised in 2003 over Direct Recording Electronic 

(DRE) voting systems. As most of our counties were preparing for 

a conversion to DRE voting equipment, we felt it necessary to conduct further security testing on this equipment to ensure the public 

that their votes would be secure. 

For that reason, we contracted with the Compuware Corporation 

and InfoSentry Services to conduct the most thorough security 

evaluation of voting equipment done to date. These security reviews did uncover some items that the vendors could do to improve 

the security of the equipment and Secretary of State Blackwell 

mandated that the vendors make these necessary modifications before we would purchase the equipment. In keeping with our philosophy of public disclosure, we publicly released the findings of the 

security reviews. 

Then in the spring of 2004, our state legislature began discussion 

on the need for all DRE voting machines to be equipped with a 

voter verified paper audit trail (VVPAT). In May of 2004, the Ohio 

General Assembly passed Amended Substitute H.B. 262 that did 

mandate that all DRE voting machines be equipped with a VVPAT 

by the first federal election after January 1, 2006. Due to our approved vendors not having voting devices with a VVPAT, this legislation brought our plans to implement new voting machines for the 

2004 general election to a halt. 

The other item that has caused a slowing of our process was the 

Ohio General Assembly requiring the Secretary of State to develop 

standards for the operation of a VVPAT. As I am sure you are 

aware, there are currently no national standards for the operation 

of a VVPAT system. 

The State of Ohio has done considerable research on this subject 

and our proposed rule on these standards will be heard this week 

before the Joint Committee on Agency Rule Review (JCARR). We 

have had numerous meetings with each of our vendors and interested parties to develop these standards. Once these standards are 

125 

official, the vendors can modify their equipment to include this new 

requirement. 

Because of the cost associated with the addition of a VVPAT, and 

that no voting system with a VVPAT has been certified for sale in 

the State of Ohio, we have made the decision to implement Precinct Count Optical Scan systems to meet the voting system requirements of HAVA. As you are aware, Ohio experienced a 12 percent increase in voter registration in 2004. 

There is simply not enough money available to purchase DRE 

voting equipment for our entire state while accounting for the additional cost of VVPAT, the increase in voter registration, and to provide enough voting devices with a VVPAT to keep lines at the polling places to a minimum. We will provide for one DRE voting device at each polling location to meet the disability voting requirements of HAVA once systems are certified. 

As it relates to HAVA, I would respectfully offer the following 

suggestions: 

(1) That the United States Congress completes the funding of 

HAVA. Congress has done an excellent job of funding HAVA, but 

there is still approximately $900 million that was authorized in 

HAVA that has yet to be appropriated. While I am aware that Congress is concerned with appropriating more money when not all of 

the states have drawn down their appropriated funds, states like 

Ohio that have been moving forward to meet the requirements 

could use the remaining funds to complete our job. We are not asking for additional funds, we are just asking that you finish funding 

what was authorized in HAVA. 

(2) That Congress asks the National Institute of Standards and 

Technology (NIST) to develop and for the Election Assistance Commission to implement standards for DREs with a VVPAT. These 

standards should be developed quickly so they are available to 

states that may implement VVPAT as a requirement. This would 

keep states from having to go through what Ohio has had to do in 

developing VVPAT standards on their own. 

(3) That Congress let states implement necessary changes to 

meet the requirements of HAVA before passing additional legislation. Many states are having difficulty meeting the time lines in 

HAVA, and additional changes now could put states even further 

behind in their implementation efforts. 

In conclusion, I would like to make a couple of comments relating 

to the 2004 presidential election. In 2004, election officials in Ohio 

and throughout the country were put under tremendous pressure 

and our election system faced its highest level of public scrutiny 

ever. We were faced with constant litigation over a variety of 

issues, an unprecedented increase in voter registration, and the 

largest voter turnout in our state’s history. 

The communication between the Ohio Secretary of State’s office 

and the 88 county boards of elections was the best it has ever been. 

We instituted a daily conference call with the 88 county boards of 

elections to communicate up-to-the-minute information. While our 

election in Ohio was not perfect, as no election ever will be, I am 

proud of the work that our office and the bipartisan boards of elections did to ensure that every voter had the ability to cast a ballot 

and have that ballot counted accurately. 

126 

I am greatly disturbed that some have decided to rely upon the 

misinformation spread by internet bloggers and those with partisan 

agendas instead of relying on the word and experience of the honest, hard working men and women charged with administering our 

elections. While there has been much written by the many conspiracy theorists about the election in Ohio, I would like to note for 

the committee that we only had one individual file a complaint 

through our HAVA mandated administrative complaint procedure. 

The over 50,000 Ohio election officials and poll workers who 

worked in the 2004 election should be commended for a job well 

done. 

Chairman Ney, thank you again for providing me the opportunity 

to testify before you today and I would welcome any questions the 

Committee may have. 

The CHAIRMAN. Thank you very much. 

Secretary of State. 

[The statement of Mr. Walch follows:] 

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STATEMENT OF SECRETARY KENNETH BLACKWELL 

Secretary BLACKWELL. Thank you, Chairman Ney and members 

of the Committee, for the opportunity to testify today. As Ohio’s 

chief elections officer, I am keenly interested in the Help America 

Vote Act and proposed changes to the federal law, and, more than 

that, I am interested in fair, clean, and transparent elections in my 

state and other jurisdictions. 

The state of Ohio received more than its fair share of attention 

during the long campaign of 2004. With the prospect of a close contest for the state’s 20 Electoral College votes, Ohioans experienced 

an unprecedented media blitz and energetic drives to register voters, which produced nearly 1 million new voters. As Election Day 

approached, attorneys for both sides, and I underscore from both 

sides, were in position, combing Ohio’s election rules for provisions 

that would help their candidate or their particular campaign. 

In addition, they scrutinized the process for errors that might invalidate the election if that would help their respective candidate. 

There have been plenty of materials and evidence for the public 

record to that effect and to that end. 

Let me quote one succinct statement about the outcome: ‘‘Overall, Ohio has a good system. Like any system, if you scrutinize it 

enough, you are going to find weaknesses.’’ 

This quote is from Don McTigue, a Democratic election lawyer 

who worked in the secretary of state’s office in a previous administration, and who was deeply involved in the election and its aftermath. 

I happen to agree with Mr. McTigue. Overall, Ohio has a good 

system, and it performed well under extraordinary stress. And yes, 

it has some imperfections, areas where we must work to make our 

system even better. But I also must speak to, and I do in my full 

statement that I have submitted for the record, fabrications and exaggerations that some who dislike the fact that their presidential 

candidate lost Ohio keep repeating. 

Unlike Mr. McTigue, they dismiss evidence and simple explanations and the word of fellow Democrats when the intimation of 

some vast conspiracy to steal the election is so easy to grasp and 

to promote that some of them found that this was more exhilarating for them. 

Sadly, these fabrications come not only from disappointed partisans talking to each other on internet boards, but also from people in responsible positions and people with enough experience in 

electoral politics to know better. 

We had a tremendously complex election day. As has been described to you on many occasions, but most recently during the last 

panel, we have 50,000 poll workers and election officials. Ohio is 

made up of 45,000 square miles of geography. We have 88 counties 

with their own Boards of Elections. We have 176 appointed Democrat members of those boards and 176 appointed Republicans. Our 

system and its strength is a bipartisan transparent system. Every 

step of the way, everything is scrutinized by Democrats and Republicans alike. 

Let me say that I had the occasion to peruse the media accounts 

of other meetings where questions were asked about some issues 

that I think are very, very important. The biggest issue, which was 

132 

raised in the question and answer session with the last panel, was 

around provisional ballots and directives. We will in our questionand-answer period give you a keen sense of the history of those 

provisional ballots. 

I will give you a directive on provisional ballots that was issued 

in compliance with Ohio’s law in 1994 by my most immediate predecessor, the now Governor Bob Taft. I will show that it was in the 

month of August that we got a rash of inquiries as to whether or 

not we were going to liberalize the provisional ballot law. 

Most people who inquired understood that to change the law 

would take an action or a decision by the legislature. But they were 

asking me, as did the Franklin County Board of Elections, for my 

interpretation. Listening to a host of lawyers who had different 

legal perspectives we, in fact, in mid-September advanced a directive that had a slight change in it. It actually liberalized our provisional ballot law. 

It immediately was pounced on as not being liberal enough or 

having changed substantially the provisional ballot law in the state 

of Ohio and gave rise to a series of legal challenges where we had 

courts directing me to change my directive every other week. 

If you really want to understand why there were late directives, 

there were late directives because, one, there were serious questions that started in August about our interpretation of the Help 

America Vote Act. In mid-September we provided a directive that 

would have allowed ballots in split precincts that had been erroneous given to a voter by a poll worker to be counted in this case. 

That was a change. 

Now let me tell you, federal courts threw out that change and basically said I had overstepped my bounds in terms of liberally interpreting that law. They, in fact, directed me to go back to the 

original interpretation, which was a much more conservative interpretation. 

If you really want to know why there were exchanges back in October, it was because the courts kept changing their minds. I think 

most folks sitting on this panel understand that. I think most folks 

in Congress understand that. I can tell you that most folks who 

read the newspapers in Ohio understood and understand that. 

The other question is around poll worker training. I just want to 

get to it right at the top. Poll worker training. What you heard 

from those individuals was that poll worker training followed the 

normal course of events this time around. What you didn’t hear 

from that panel was that we had two statewide meetings, plus a 

primary election in 2004. We had a meeting of all the election officials in January of 2004. We then had a primary and we had a 

summer meeting of all the election officials. 

Those are sessions where clarifications are made, where, in fact, 

we talk about techniques that are working, and we exchange best 

practices. Not only did the EAC and the NASS, the National Association of the Secretaries of State, distribute best practices, we, in 

fact, used those best practices. Because, you know what? Ohio was 

referenced in those best practices as much, or if not more, than any 

other state. We actually do know how to handle provisional ballots 

in this state. 

133 

What I have suggested to you is that the courts, the legislature, 

and I as the Chief Election Officer of this state, what we did was 

we went with Ohio law and we did it within the context of HAVA. 

We happen to be privileged to have the Moritz College of Law here 

in Columbus who did an extensive legislative history on the evolution of HAVA and it was brought to our attention in that legislative history that there was a profound debate within the Congress 

where in the House there was a belief that jurisdiction would mean 

any place in the county so it was a broader definition. 

Senator Bond, who led the effort in the Senate, wanted the more 

conservative definition of jurisdiction. In conference committee the 

Senate won and so HAVA basically says that it is up to the state 

to determine jurisdiction. The narrow definition did not get approved, nor did the broader definition. 

HAVA left that up to the state. I submit to you from the record 

that legislative history. I would suggest to you that everyone sitting up there understood that legislative history and everyone in 

Congress who was following the process understood that legislative 

history and the courts and the Secretary of State’s office understood that history. 

We had a good election in the state of Ohio. Not a perfect election. Elections are, in fact, human endeavors and as a consequence 

they are never perfect. But just as Lincoln said about our union, 

‘‘Elections are perfectible. We can make them better.’’ 

I was struck by the fact that there is common ground between 

myself and members of this Committee. I have advocated since the 

inception, my first day on the job, my first week on the job. My 

first legislative idea was to go with no-fault absentee ballots for 

broader use of absentee ballots, moving away from the 11 or so excuses that are there now that you have to meet in order to get an 

absentee ballot. 

I am a very strong advocate of early voting and have been. I also 

am respectful of the legislative process and understand that this is 

a matter where the balance of power works and the legislature has 

said that we will not have at this point a broader use of absentee 

ballots, nor will there be early voting. 

I can tell you if you want to come and help me campaign with 

the legislature for their broader definition, you are more than welcomed, but I would suggest to you that just as you like to have 

your integrity respected, so does the Ohio legislature. They are the 

elected representatives of the people of Ohio in this legislative process. 

I hope that we can find common ground. I can tell you right now 

I was among the first to challenge the continued use of punch-card 

ballots. That is why I got this letter. Not just a form letter, but a 

handwritten note from Congressman Steny Hoyer and the Chairman basically saying that I was in the forefront of moving forward 

the passage of HAVA and the elimination of punch-card ballots. 

We, in fact, in the 11th hour, got House Bill 262, which basically 

changed the rules of the game and said that we needed a voterverified, paper audit trail. 

I don’t know where you all net out on that, but I am here to tell 

you it has been a center piece of the national debate, a center 

piece. But the EAC has yet to establish standards and the indeVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00135 Fmt 6633 Sfmt 6602 E:\HR\OC\A790.XXX A790
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pendent testing authorities have yet to establish standards. So as 

a consequence, we are in a situation where Ohio law prevails and 

I have my marching orders from the legislature and I am going to 

play out the hand that was dealt me. 

You all haven’t changed the implementation schedule. They 

haven’t changed the VVPAT requirement. And we haven’t gotten 

any more money. We have $105 million for machines and the only 

way that we can be in compliance and meet your schedule and deal 

with the money that has been provided is by going to the precinctcount optical scan, which those machines are HAVA compliant, 

they are within our budget of the money allotted, and we can, in 

fact, meet our deadline. 

In closing, let me say, because this seems to be another issue of 

question, the legislature in House Bill 62 allocated the dollars for 

voter education and they had two strategic objectives. The counties 

were to receive voter education money at the point that they implemented and deployed new machines. Because the voters would be 

using new machines, House Bill 262 said that at that point they 

would get $2.5 million to be allocated on formula. We had OEAO 

agreement, the Ohio Association of Election Officials. Nobody spoke 

to the conference committee to the contrary. 

Secondly, let me tell you why we spent $2.5 million on a voter 

education program that is considered to be the template of best 

practices, because 70 percent of our voters use the punch-card system, a punch-card system that many on the panel found to be discriminatory against low income and minority voters in urban areas. 

I was in the forefront of saying that we needed to get rid of that 

system and I am still in the forefront of saying that we are going 

to meet your time lines to get rid of that system. I would just suggest to you that we will, in fact, spend the money on the new system on voter education, but we must measure the effectiveness of 

our education program. 

I know the Chairman has had a question. He has had a question 

about whether or not we have had impact on over or under ballots 

where, in fact, you can measure folks who over-vote. You can’t determine whether folks who under-voted did so initially or if there 

was some machine malfunction. 

As compared to 2000, we had fewer over/under votes percentage 

wise because we had over a million more voters than we did in 

2000. The education program worked. It was cost effective, because 

we made commercials that could be used across the state because 

the dominant system in our state was the punch card. 

We, in fact, ran an aggressive voter education campaign. By anybody’s measure, it worked. If we want to get more money out to 

counties, then we start with the legislature and we say let us get 

them more money. But the fact is that we are not to denigrate a 

statewide system that worked against a statewide problem. Thank 

you. 

The CHAIRMAN. Thank you very much for your testimony. 

[The statement of Secretary Blackwell follows:] 

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The CHAIRMAN. I will start by asking a question. Secretary of 

State, I recall that you were the first person involved from the forefront. You were the first person called when this started, as well 

as your colleague, Democrat Secretary of State Priest from Arkansas. We received unanimous support of NAS. I have said that, and 

appreciate you doing that, and appreciate the phone call that first 

day to help us along in this process. 

Mr. Walch, you referred in your testimony, and, it was raised 

about Knox County, to the voter’s fair and other issues that have 

been raised about disenfranchisement and other issues. You mentioned there is only one person that filed an administrative complaint. Do you want to expound on that? That individual is from 

which county? 

Mr. WALCH. Mr. Chairman, that individual is from Allen County, 

Ohio. 

The CHAIRMAN. Why do you think only one person filed a complaint? 

Mr. WALCH. Mr. Chairman, I think the overall reason as to why 

there were so few filed is because, as the Secretary said, and I 

think I said in my testimony also, I think we had a very good election here in the state of Ohio. Overall things went very smoothly. 

As I think we have all testified to and said in public statements, 

it by no means was a perfect election. 

There are always improvements that we can do and we have 

gone through an analysis of the selection and have been working 

on that. You heard Representative DeWine talk earlier about 

House Bill 3 and Senate Bill 3, a companion piece of legislation 

that our office is working very closely with the legislature on to improve an already very good system. My answer to that is the reason I think not more people filed was because we had a good election year in the state of Ohio. 

The CHAIRMAN. I have another question for either the Secretary 

of State or Mr. Walch. A key component of HAVA is the requirement that each state establish a statewide voter registration database. Once this requirement is met here in Ohio, what impact do 

you think it will have on the registration process and the demand 

for provisionals? Do you have any reflection on what is coming 

down the road? 

Secretary BLACKWELL. Again Ohio is in the forefront. Most states 

are having a very difficult time. We now have all 88 counties in 

place and it will have a tremendous impact. It will, in fact, deal 

with the time lag that the gentlewoman from California raised with 

the last panel as to why we trail the counties. 

Well, we don’t have a centralized system so we are dependent 

upon information coming in from all 88 counties and then we put 

the information back out to them. With a very shoebox system, a 

very paper oriented system, that takes a whole lot of time when 

you are talking about now, you know, 7.3 million voters. That is 

an issue. This issue is one of the great accomplishments of HAVA. 

That issue goes away. 

Now, I do want to say that there was some question about HAVA 

and the statewide plan. We had a statewide plan and I got here 

just in time to hear each member of the last panel ask if they were 

on the statewide plan. A more pointed question would have been 

251 

were election officials represented on the statewide plan committee 

which the state plan is now part of the national registry. 

It got approved by the Federal Government. It went through the 

express process of inviting anybody who wanted to testify at at 

least three public hearings to come in and testify. It was, in fact, 

a plan that was signed off on by election officials, as well as community-based voter groups. The plan is a statewide plan that had 

diverse input from across the state. 

Let me just say for the gentlewoman from Cleveland that the 

chairman, Mr. Thomas Coyne. I think he is a Democrat, was a 

member—he was the Chairman of the Board of Elections, was a 

member of the statewide plan committee. So our largest county was 

represented on the statewide planning committee. 

It was a committee that had its final product, the statewide plan, 

vetted nationally because it had to fit on our website and we had 

to deal with questions and answers from not only from Ohio, but 

from across the country. It was a well-vetted state plan. It was also 

a state plan that the National Association of Secretaries of State 

used as a model. 

The CHAIRMAN. I have a question on voter ID. How did that go? 

Do you have any opinions on voter ID? 

Mr. WALCH. Mr. Chairman, we received very few calls about any 

problems with that on election day. I think in the state of Ohio it 

went very smoothly. We had implemented that in the primary election we had in March of 2004. The feedback we received from election officials throughout the state was that most people are actually surprised when they have gone to vote and didn’t have to show 

some form of ID. Those that were required to show some form of 

ID, which were not many in the state of Ohio, those folks didn’t 

have any problem. 

The CHAIRMAN. I haven’t heard much nationally. We did hear 

some issues out west, but one of the most common complaints arising from the 2004 election was that the lines were too long at some 

polling places. I asked the question today. Mr. Secretary, I don’t 

know if you were here at the time, but I asked all four of the last 

panelists: Do you want the Federal Government to solve that or the 

local bodies? Nobody wanted the Federal Government. I thought I 

would mention that, but it is difficult to solve long lines because 

of an insufficient number of machines. 

Again, the two complaints you hear the most are that the lines 

are too long at some polling places, and that the voters could not 

cast a provisional ballot anywhere within the county in which they 

live, but rather had to cast at their assigned polling places in order 

for it to be counted. Any comment on those two? 

Secretary BLACKWELL. You can disagree with Ohio law. California has a different law than the state of Ohio, but the fact is 

that Ohio law says that the jurisdiction is the precinct in which a 

voter resides. Now, Ohio law has also allowed for a couple things 

for a decade. First, anybody who is in question can register and 

cast a ballot at the Board of Elections. Anybody who wants a provisional ballot can go to the Board of Elections and get it done. They 

can do that. 

Secondly, we allow for the creation of provisional voting centers 

throughout a county, one as large as Cuyahoga. That has been part 

252 

of the law for 10 years. We can’t mandate it from the central government of Columbus, but it, in fact, is a provision of the law 

which allows for the creation of those provisional voting centers. 

Anybody who has been around for two years, four years, six years, 

eight years, seven years, as I heard one gentleman say, should 

know that. That is a fact. 

And, you know, as it relates to long lines, I agree with you. No 

one should have to wait until the wee hours of the morning. No one 

should have to wait for two and a half hours. But you all have to 

understand that voting machine deployment has an intersection 

with a whole host of issues. 

First, it is voting pattern history, available dollars, production 

timing. These machines are not just sitting on a shelf. We in Ohio 

have allowed for the use of different systems that meet specific 

standards. I understand that you had a question asked of the gentleman from Franklin County where they had too few machines 

and the gentleman from Cuyahoga County where they had 1,000 

excess machines, but they used two different systems. 

The fact is that we have some very real issues that we have to 

wrestle with, and that is, do we move to a one-system concept. We 

got to that through the back door. One system in the general sense 

of a precinct count optical scan even though we are dealing with 

two different manufacturers. That is optimally what we would like 

to do but we don’t have enough machines at a reasonable cost that 

meet all of the certification guidelines and so that is a problem. 

I was the first to say that we couldn’t control the rain. We 

couldn’t control county budgets and state budgets. The fact of the 

matter is that we can now take steps to make sure that those problems are alleviated in the future with a broader use of absentee 

ballots and early voting. I said that right out of the chute. 

Now, the reality in this county—let us go to Knox County. We 

got a lot of publicity, and rightfully so, but anybody who has been 

around election administration for two hours could understand 

this. The gentlewoman from California, let me just say I agree 

wholeheartedly with something that you said. 

Political veterans understood that there hasn’t been a Republican 

win or retain the White House without carrying Ohio. That was a 

fact that didn’t go to sleep. The Kerry campaign didn’t sleep, nor 

the Bush campaign. The other issue is that if you go back to 2000, 

you take Ralph Nader off the ballot, you are probably talking about 

a 1 percentage point difference between then Governor Bush and 

Vice President Gore. 

Anybody who had a historical point of view would know that we 

are going to have a major, major influx because we had Americans 

acting together. We had a very hot issue around the definition of 

marriage and a constitutional amendment that had gotten a lot of 

folks revved up. Even knowing that, we didn’t have enough money 

to employ additional machines. 

Even anticipating that, it wasn’t there. Now, at one point I 

thought it might be there to get half of the counties moved into the 

new DRE system and, lo and behold, we got the last minute requirement of a VVPAT. I will say, in all fairness, a lot of it was 

coming from Democratic camps, the demand for the VVPAT. 

253 

Here in the state of Ohio, Senator Fedor from the western side 

of the state was the primary leading Democrat. The fact of the 

matter is that this is not something that Republicans conspired. It 

was bipartisan. Senator Jacobson, who I understand had a nice exchange with you today to say it mildly, was right there demanding 

for VVPAT. It was a bipartisan, last-minute decision. But it was a 

last-minute decision and it drove up the cost of the machines, so 

there was no way that you were going to have enough machines. 

Let me tell you what happened. In Knox County, where Keynon 

College is located, traditionally those students vote absentee ballots 

in their respective home states. Because folks understood Ohio, 

was going to be the battle ground state, the campaigns both adopted a strategy of getting them to vote in the state of Ohio which was 

an option open to them. The fact of the matter is they filed their 

Ohio voter registrations late. 

Not past the deadline, but late into the system so there was no 

way that those folks could have anticipated that there was going 

to be that change in voter behavior. What they did was the best 

they could do with too many voters for too few machines. They did 

the best that they could do. Shame on us if that happens again, 

because we now have that historical experience. 

So, yeah, were there long lines? They were across the board. 

Were there long lines in Franklin County? Yeah, you heard. But, 

look, our system is a bipartisan system. It would have taken the 

collusion of 176 Democrats. Not just any Democrat. Most of them 

are Democratic leaders. Tim Burke in Hamilton County, Chairman 

of the Hamilton County Democratic Party, very active in the Kerry 

campaign. 

Bill Anthony, labor leader, Chairman of the Franklin County 

Party, as well as the Chairman of the Board of Elections. The two 

people responsible in Franklin County for the distribution of voting 

machines are two Democrats so it is silly on its face to think that 

there was some kind of bipartisan conspiracy to disenfranchise 

black and inner-city voters in Franklin County when you had 

Democrats and blacks in charge of that system. 

The CHAIRMAN. We want to move on to our Ranking Member and 

member from Cuyahoga County, but I have just one correlation in 

my mind. If you allow people to cast ballots anywhere in the county 

or state, you are going to have extremely long lines. I don’t know 

how we could have anticipated where on earth anybody would vote. 

If you do statewide voting, everybody driving from counties going 

across Ohio could vote wherever they please. I don’t know how we 

would have known where anybody would vote. 

Secretary BLACKWELL. Mr. Chairman, let me just say, the expectation in a fledgling democracy like Afghanistan was that voters 

would vote in their assigned voting area or jurisdiction. We are veterans of the democratic process. For 228 years, there have been two 

hallmarks of American elections that are truly free and fair. The 

first is the protection of the sovereignty, the sanctity of the voting 

station so that the secrecy of the ballot is protected. 

Secondly, it is an honest count. In Ohio, you got an honest count 

three times—three times. In Ohio you, in fact, had election officials 

that fought to make sure that we balanced two strategic objectives 

to meet the first overriding concern and that is the protection of 

254 

the voting station and the secrecy of the ballot. That was that we 

have to balance two strategic objectives. The first is we have to 

make voting as easy as possible. Make the ballot as accessible as 

possible. 

Secondly, we have to understand that a fraudulent vote discounts 

legitimate votes, so we have to work very hard to make sure that 

our system is fraud-free and that we were able to do. That is one 

reason why we have had a record turnout and the system, no matter how taxed it was, showed stability and professionalism and patience and got the job done. That is what I found so offensive about 

the charges that were made against the system by folks who didn’t 

have the decency to check the facts. Let me just answer that question and let me just make this statement. 

Early on, there was a lot of concern about how we were dealing 

with provisional ballots and it was positioned as if Ohio was doing 

something dramatically different and out of the mainstream. Let 

me underscore, for the record, that 27 other states, plus the District of Columbia, require votes to be cast in the correct precinct 

to be counted. 

There was the amazement on my part is that I didn’t see press 

conferences and pickets going to Boston, Massachusetts, where 

they have the same laws we have in the state of Ohio. I didn’t see 

press conferences held in the District of Columbia, where they have 

the same provisional law as we have in Ohio. 

So if the controlling principle was the concern about the disenfranchisement of African-Americans, there are more AfricanAmericans per square mile in the District of Columbia than in the 

state of Ohio. Why weren’t there protests there? This positioning 

of Ohio as doing something that was radically different. It was a 

false position. We were in the mainstream of states. Twenty-eight 

states, plus the District of Columbia. None of them changed. 

All of them, in fact, found reasonableness in that requirement 

and they maintained it. I would suggest that there were issues to 

deliberately cause confusion in the state of Ohio. We were targeted 

for such chaos and confusion and it is a testament to the professionalism of 50,000 poll workers and election officials that got it 

right in the face of this. 

Mr. WALCH. I am sorry, Mr. Chairman. Can I make an additional 

comment to the Secretary, please? 

The CHAIRMAN. Yes. 

Mr. WALCH. To your point of voters not being able to cast a ballot 

anywhere in the county, I listened to our colleagues on the previous 

panel talk about that and some previous ways of doing in some 

counties. I heard Mr. Cunningham talk about from Allen County 

that he in this election did not do one thing different than he has 

done in past elections as it related to the issue of counting provisional ballots. 

That is because Mr. Cunningham has been doing it by the same 

directive that has been out there, as Secretary Blackwell talked 

about earlier, since 1994. If there are counties out there that felt 

that there was some sort of change to past practice on this, that 

was due to them not doing it properly in past elections. 

But our job at the Secretary of State’s office was to ensure that 

they were doing it by law and that is why we reminded them of 

255 

current Ohio practice on issuance and counting of provisional ballots. I would also to your point of provisional ballots, I would also 

for the Committee’s consideration remind everyone that Ohio had 

the fourth highest acceptance rate of provisional ballots cast in the 

country according to Electionline.org. 

I would say I am very proud of the work that we in the bipartisan Boards of Elections did in ensuring that everybody got a provisional ballot who wanted one and that those provisional ballots 

were counted if that voter was eligible to vote. 

Ms. MILLENDER-MCDONALD. Mr. Chairman, can we get a yield 

for a moment from Mr. Walch? 

The CHAIRMAN. Just on this point, Ranking Member, my intention of HAVA is very clear. You have to have the provisional ballots, but never had the word ballot been written into the law. The 

idea was, especially for states that didn’t have it, to stop disenfranchisement. You have to give people the ballot. 

We never, rightfully so, dictated how you count it. You have 

standards in Ohio and set procedures. If people don’t like that then 

they go to their state legislators and you change it. Now, I mentioned the county thing because I can’t imagine—you want to talk 

lines or chaos, I can’t imagine how you could have counting in the 

county. It would be chaos. Now, in perfect day when we are no 

longer here on this planet and electronics work, you pull up a little 

screen and you put your finger on it or your iris, you could be in 

California and vote in Belmont County, for example. That hopefully 

will come some day, but we don’t have that currently. 

I have always asked this question. How on earth would a person 

in a county vote in St. Clairesville if he is from Bellaire, my original hometown. If you are from Bellaire but you go and vote in St. 

Clairesville and say, ‘‘Well, by the way, I am voting on the St. 

Clairesville school levy, but I am from Bellaire, Ohio, where I pay 

my taxes.’’ How do you sort that out? These are things that I find 

impossible to sort out. I think we would have complete imploding 

of the election under the current technology. 

Secretary BLACKWELL. Mr. Chairman, I think you have to start 

by the fact that you are never going to have the perfect system. 

There is always a way to make it better so you are never going to 

be able to totally eliminate the possibility of long lines. 

Let me tell you what my experience has been as I have crisscrossed the country over the six or seven years that I have been 

in this office. Something that has not been talked about today is 

that the complexity of the ballot is a big issue. Let me just tell you 

something, if you want to go back and understand. 

If, in fact, you have, like in California, 17 different statewide 

issues and a whole host of judges that you have to go in and look 

through, most voter behavior is that they wait until the last couple 

of hours and many of them go into the voting booth with the 

League of Women Voters Voter Guide and say, ‘‘Let me see where 

this guy graduated from.’’ 

The issue becomes one of voter complexity. In the state of Ohio, 

thank God, this time around, because we educated against it, but 

it is still on the books you only have five minutes to vote. Yeah. 

Now, I tried to get that eliminated, but it didn’t get eliminated. 

You only have five minutes to vote. 

256 

The CHAIRMAN. Mr. Secretary, would you like to clarify that? 

Secretary BLACKWELL. No, I don’t want to clarify it. It is right. 

The CHAIRMAN. Mr. Secretary, this is not an adverse situation. 

It is for the gentlelady’s information. 

Secretary BLACKWELL. If, in fact, you went into a voting booth 

and you hadn’t done your homework and you decided to read the 

information while you were in the voting booth, you inconvenience 

‘‘those who are in line.’’ We are talking about lines now. We are 

talking about lines. 

Ms. MILLENDER-MCDONALD. Irrespective. 

Secretary BLACKWELL. Let me tell you. We are talking about 

lines. What I just told you is that we didn’t get that exercised out, 

but we didn’t have that problem this time. By not enforcing the 

five-minute rule, we added to the wait. You can’t tell me—you said 

they enforced. 

Ms. MILLENDER-MCDONALD. No, I am not saying that. 

Secretary BLACKWELL. I know you are not. So you said you 

shouldn’t enforce it. 

Ms. MILLENDER-MCDONALD. That is right. 

Secretary BLACKWELL. So that means that—— 

Ms. MILLENDER-MCDONALD. And you said you did not enforce it. 

Secretary BLACKWELL. We didn’t enforce it and that meant that 

we had longer waits because of people’s voter behavior. If you want 

to talk about this in an academic sense, that has been studied. People take longer sometimes than five minutes if they are not familiar with the ballot or if the ballot is very complicated and has a 

lot of issues on it. 

Ms. MILLENDER-MCDONALD. Of course. 

Secretary BLACKWELL. That is all I am saying. So there are a 

whole host of issues that impact wait and the length of the line. 

Ms. MILLENDER-MCDONALD. That is one of those. 

Secretary BLACKWELL. That is one of those. Absolutely. If you 

want to begin to attack ways to eliminate lines, some could argue 

that you, in fact, enforce the five-minute rule and the voter responsibility is to be educated before he or she walks into the station to 

execute the ballot. Others will say, ‘‘take as long as you want. If 

somebody else has to wait, so be it.’’ 

The CHAIRMAN. We will move on. I was defending you. 

Secretary BLACKWELL. I know you were. 

The CHAIRMAN. She is from California. I just wanted to clarify. 

Ms. MILLENDER-MCDONALD. You put California out there five 

different times. My goodness. You said California once before and 

he said California three times. 

Secretary BLACKWELL. I said California three times. I sure did. 

Ms. MILLENDER-MCDONALD. Just referencing. 

Secretary BLACKWELL. Referencing because I have looked at 

problems—— 

Ms. MILLENDER-MCDONALD. Problems—— 

The CHAIRMAN. If you will take me back for a second, Ranking 

Member, I am clarifying that you are from California and asking 

if you are familiar with our five-minute rule. 

Ms. MILLENDER-MCDONALD. That is true. 

The CHAIRMAN. No offense. 

Ms. MILLENDER-MCDONALD. He was defending you. 

257 

The CHAIRMAN. With that, I will yield to the Ranking Member. 

Ms. MILLENDER-MCDONALD. He is a great Chairman. 

Secretary BLACKWELL. Yes, he is. 

Ms. MILLENDER-MCDONALD. You have given us a great Chairman here from Ohio and we are very pleased with him. 

Before I get to the Honorable Secretary of State, I would like to 

go back to Mr. Walch. You were saying that Mr. Cunningham perhaps had abided by this 1994 law. It seems to me you were implying that the others were not, causing some confusion. Am I correct 

in my assessment of that? 

Mr. WALCH. Mr. Chairman, Congresswoman, yes. That is correct. 

If a county felt that there was something different going on this 

year than had gone on in the past, the only explanation for that 

was they were not doing it correctly in the past. Ohio law—— 

Ms. MILLENDER-MCDONALD. Isn’t it your position then to correct 

them? 

Mr. WALCH. That is what we did. 

Secretary BLACKWELL. Let me answer. Let me just say what is 

unknown, and I will welcome your advocacy. No, I wouldn’t. We 

have 12 central office election officials. What my office does, the 

majority of my staff does, is on the business services side of the office. Now, the reality is that in terms of elections administration, 

we have 12. We don’t have an enforcement agency. The only thing 

that we can do through directives is clarify and give reference 

points for the 88 county Boards of Elections. So it might be easy 

to come in from out of state and assume I have dozens upon dozens 

upon dozens of people to cover 45,000 square miles of territory and 

88 counties. I don’t. 

Ms. MILLENDER-MCDONALD. Just—— 

Secretary BLACKWELL. The issue is you asked him don’t we 

have—this isn’t our responsibility. I want to be clear on what our 

responsibility is. 

Ms. MILLENDER-MCDONALD. Is it not your responsibility? 

Secretary BLACKWELL. Our responsibility is to state Ohio law 

and to give a reference point. The only way that we can find out 

is through a complaint system or through their own admission. 

Ms. MILLENDER-MCDONALD. Which you did not get. 

Secretary BLACKWELL. Which we did not get. 

Ms. MILLENDER-MCDONALD. You did not get that. 

Secretary BLACKWELL. Prior to coming into this, right. That is 

how our system works. And the other issue is one of local enforcement; it is the job of the respective county prosecutor. 

Ms. MILLENDER-MCDONALD. Well, you know, Mr. Secretary of 

State, you do have a lot of improvement to do and that is based 

on your limitation of personnel or a myriad of other things that you 

have outlined. 

Secretary BLACKWELL. I just—— 

Ms. MILLENDER-MCDONALD. But I am saying—— 

Secretary BLACKWELL. The whole state does. I mean, the whole 

country does. 

Ms. MILLENDER-MCDONALD. I am going to say that in Wisconsin. 

I am going to say it in Pennsylvania. I am going to say it in Florida. I am going to say it wherever I go because there are problems 

258 

that are systemic around the country. Now, Mr. Secretary of State, 

you were well aware that Ohio was a swing state. 

Secretary BLACKWELL. Right. 

Ms. MILLENDER-MCDONALD. You are well aware that when the 

swing states come into focus leading up to a presidential election— 

I was going to ask how long have you been here. You have been 

the Secretary of State for six or seven years? 

Secretary BLACKWELL. Six years. 

Ms. MILLENDER-MCDONALD. So it is obvious that you knew that 

folks would be coming in from all walks of life. You would have a 

barrage of folks coming in. You knew that and, yet, with all of this, 

you are saying that you don’t know why the media blitz, you don’t 

know why all of these folks are coming in with these different 

groups. 

Secretary BLACKWELL. No, I didn’t say that. You go back and 

check the record. I didn’t say that. Somebody might have said it, 

but I did not say that. I anticipated. I anticipated. Let me tell you 

when I anticipated it most is when we took Ralph Nader off the 

ballot and I was very much aware of what I told you beforehand. 

I knew that Ohio was going to be the premiere battleground state. 

I knew it. 

Ms. MILLENDER-MCDONALD. Then did you know that then you 

should have known that you were going to have over a 100,000 new 

registrants perhaps. 

Secretary BLACKWELL. Right. 

Ms. MILLENDER-MCDONALD. And that you should have put into 

place some type of mechanism to deal with this onslaught of all 

these registrations. 

Secretary BLACKWELL. Madam, in your brilliance, would you tell 

me who would have paid for it? 

Ms. MILLENDER-MCDONALD. I am sorry? 

Secretary BLACKWELL. In your brilliance would you tell me who 

would have paid for it? 

Ms. MILLENDER-MCDONALD. It is a possibility you would not 

have had that, even though you got the third highest amount of 

money from HAVA. 

Secretary BLACKWELL. Can you tell me who would have paid for 

it? 

Ms. MILLENDER-MCDONALD. But, you know what, Mr. Secretary 

of State? You are the Chief Election Officer. 

Secretary BLACKWELL. You dagone straight I am. Let me tell you 

something. 

Ms. MILLENDER-MCDONALD. You should have had—— 

Secretary BLACKWELL. I am not the legislature. I am the Secretary of State and I do not allocate money. 

Ms. MILLENDER-MCDONALD. I understand the provisions of that. 

Secretary BLACKWELL. The legislature does. 

Ms. MILLENDER-MCDONALD. Okay. Fine. But it is incumbent 

upon you to have found some way by which those extra registration 

forms could have been dealt with differently than what they were 

irrespective, Mr. Secretary of State, and you had ample time to do 

that it seems. 

259 

Secretary BLACKWELL. Expand on that. I am fascinated how you 

can fly in here to Ohio, that you would fly in here and you would 

make an assertion that—— 

Ms. MILLENDER-MCDONALD. It seems to me—— 

Secretary BLACKWELL. You are going—— 

Ms. MILLENDER-MCDONALD. I am not saying you should have. 

Secretary BLACKWELL. Okay, it seems to you. I will start 

wordsmithing with you. 

Ms. MILLENDER-MCDONALD. Okay. 

Secretary BLACKWELL. The fact is that you have left an impression that, contrary to what all the election professionals have told 

you, and we will give you full comprehensive answers to your questions. Pat Wolfe is the Election Administrator. She has been introduced to you. 

The reality is that we started in January of 2004 at the statewide meeting of the Ohio Association of Election Officials starting 

to talk about the challenge of this election and what it was going 

to mean. I can tell you right now that if we hadn’t had the preparation that we did have, it would have been a catastrophe. The fact 

of the matter is that what you don’t want to hear is that Ohio—— 

Ms. MILLENDER-MCDONALD. Do not say what I don’t want to 

hear. 

Secretary BLACKWELL. Well, then what you are not hearing. 

Ms. MILLENDER-MCDONALD. You don’t want me to put words in 

your mouth. 

Secretary BLACKWELL. What you are not hearing is that Ohio, 

whether you are talking about the National Associations of Secretaries of State or by any other objective measure, has one of the 

best election administration performances in the country. 

Ms. MILLENDER-MCDONALD. Mr. Blackwell, irrespective of that, 

there have been many allegations put out there. Now, again, you 

don’t want to hear they are out there. 

Secretary BLACKWELL. Most of them have been—let me just show 

you something, madam, because I don’t want to waste your time 

coming into Ohio. Most of the challenges to our state were handled 

by the media in our state. 

Ms. MILLENDER-MCDONALD. I am sorry, who? 

Secretary BLACKWELL. The analysis was done by the media of 

our state, as well as other third party personnel and organizations. 

Ms. MILLENDER-MCDONALD. May I just say this, sir? 

Secretary BLACKWELL. Yes, ma’am. 

Ms. MILLENDER-MCDONALD. One of the things that was raised is 

that you did have long lines. 

Secretary BLACKWELL. Right. 

Ms. MILLENDER-MCDONALD. And, therefore, there was a certain 

amount of disenfranchisement because people just couldn’t wait in 

those long lines. Now, you have said you did have long lines but 

you have explained why some of the reasons for the long lines. 

Secretary BLACKWELL. Right. 

Ms. MILLENDER-MCDONALD. Nevertheless, that is out there. 

Secretary BLACKWELL. Everybody had long lines in the country. 

Nobody had the anomaly of Knox County that I know of. Everybody 

in general had long lines and longer waits. We had a record turnout. We had a million more voters this time around. 

260 

Ms. MILLENDER-MCDONALD. Because you are a swing state. 

Secretary BLACKWELL. Not only because we are a swing state. 

Because we, in fact, had encouraged voter education and registration and we got it on both sides of the aisle. 

Ms. MILLENDER-MCDONALD. Well, we did not have 10-hour 

waits, but I am not sure that is an accurate account of the number 

of hours that folks waited here in Ohio either. Let me ask you 

about the forms, 800 pound paper stock that was suggested. Are 

those allegations or is this true that you out of the—as the results 

of public outcry you have changed that? 

Secretary BLACKWELL. No. 

Ms. MILLENDER-MCDONALD. Can you explain that to me? 

Secretary BLACKWELL. Yes, I can. As a part of reasonable feedback from election officials, we relaxed the standard. Prior to this 

election, most of our voter registration came to us from the voters 

themselves and came to us through the mail. 

This election, we, in fact, had a record number of third-party registrations. When they were coming to us through the mail, we, in 

fact, had a paper weight standard because what we didn’t want to 

do is disenfranchise voters by post office machines damaging their 

registrations. Now, the reality is that this predated me. Now, Pat 

Wolfe—— 

Ms. MILLENDER-MCDONALD. What predates you? 

Secretary BLACKWELL. The paper weight requirement. Pat is 

here. She will explain to you the process, why we have it, and how 

we approached it this time around. As soon as folks told us that 

they, in fact, were getting more over-the-counter registrations than 

they were getting through the mail, and that the standard was a 

problem as opposed to an asset, we, in fact, relieved and relaxed 

that standard pure and simple. 

It is something that had been in our director’s guide. We had, in 

fact, had it for a number of years. I’ll let Pat explain to you because 

I own that. I own two things. I own the directive and I own the 

relaxation of that directive. But I, in fact, worked on the advice of 

election professionals and Pat is that election professional and one 

of the few in the country that is certified. She is certified, and she 

recommended to me. I will let her explain it to you, but I own it. 

Ms. MILLENDER-MCDONALD. I just want to continue to talk with 

you, sir. 

Secretary BLACKWELL. Okay. Pat, would you answer the question? 

Ms. MILLENDER-MCDONALD. No, Mr. Secretary of State. Let us 

finish. 

Secretary BLACKWELL. Do you accept that answer or not? 

The CHAIRMAN. Let me just stop here for a second. Let us take 

a deep breath. First of all, gentlelady, you can proceed on the question. After that, I would like to hear from Pat Wolfe. Ranking 

Member, proceed. 

Ms. MILLENDER-MCDONALD. Thank you, Mr. Chairman. Mr. Secretary of State, we will get to the lady. We are just trying to clear 

up some either allegations or misinterpretations of what happened. 

This is your opportunity to do that so that is why I was—— 

Secretary BLACKWELL. That is why I am going to give you the 

whole process. 

261 

Ms. MILLENDER-MCDONALD. I understand—— 

Secretary BLACKWELL. If we really want to get to that, I will give 

you the whole process. We will put a pin in it, flag it, that Pat will 

give you the process from the very beginning when it started, you 

know, when that standard was established and why. 

Ms. MILLENDER-MCDONALD. Okay. Mr. Secretary, there are allegations that voters were told that they could not fill out provisional 

ballots in any other precinct than the one in which they reside. I 

think you have made some clearances on that. But will you reiterate for the record again with me why was that? Or why are there 

still allegations out there that you circumvented provisional ballots 

from being given to voters who did not reside in the precinct by 

which they had come? 

Secretary BLACKWELL. The most simple answer is that I don’t 

know why people would continue to spread misinformation, except 

there was a mid-October, and you probably have seen it, either officially or politically, a DNC workbook that suggested that folks 

come in and look for problems. If there were no problems, exercise 

a preemptive strike and create problems where there were none. 

I would suggest that is probably what we are still experiencing 

here. I will give you a copy, just in case you don’t have it, so you 

can reference it. It was very interesting. It came up in October. I 

was doing a Fox News Sunday interview with Chris Wallace on set 

with a Democrat lawyer. Very finely distinguished fellow. This was 

the first time that I saw that DNC newsletter. The lawyer couldn’t 

respond to it. 

Ms. MILLENDER-MCDONALD. Are you saying this was conjured up 

by—— 

Secretary BLACKWELL. I don’t know. I am just saying that—here 

it is right here. 

Ms. MILLENDER-MCDONALD. Are you suggesting that—— 

Secretary BLACKWELL. Kerry/Edwards Colorado Election Day 

Manual. ‘‘If no signs of intimidation techniques have emerged yet, 

launch a preemptive strike, particularly well suited to states in 

which their techniques have been—where these techniques have 

been tried before.’’ 

Ms. MILLENDER-MCDONALD. So it is not related to Ohio. That is 

a general statement. 

Secretary BLACKWELL. Well, it is a general statement. But just 

as you recognized that Ohio was a swing state and the premiere 

battleground state, I am sure they did, too. 

Ms. MILLENDER-MCDONALD. The question is did you circumvent 

any provisional—sir, Mr. Secretary of State. 

Secretary BLACKWELL. Go ahead. I am listening. 

Ms. MILLENDER-MCDONALD. Yes, but I don’t have your—— 

Secretary BLACKWELL. You have my undivided attention. 

Ms. MILLENDER-MCDONALD. No, I don’t. 

Secretary BLACKWELL. I can chew bubble gum and listen to you 

at the same time. 

Ms. MILLENDER-MCDONALD. Sir, are you saying that there is not 

a ruling by you or a directive that says that no one should have 

a provisional ballet who did not reside in the precinct by which 

they have come to vote? 

262 

Secretary BLACKWELL. There was no directive. There was, in 

fact, a letter back to the Cuyahoga County Board of Elections 

which basically raised what I would consider to be an ethical question. One, if, in fact, you know that someone is not in the correct 

precinct, to give that person a ballot that you know is not going to 

be counted effectively and intentionally, disenfranchises that person, even though it might make election administration more convenient. 

What I was told, and it was made very clear, that there were two 

things we had to separate. One was the provision of the ballot and 

the other was the counting. The courts told me that when they narrowed the definition of where the jurisdiction was, they upheld 

Ohio law and Ohio authority, to require the jurisdiction to be the 

precinct. 

They also made it clear to me and my lawyers that the ballot in 

accordance with HAVA had to be given to anybody. Just for accountability purposes, they were to tell the folks where they should 

vote. If they still wanted a ballot, HAVA said give them the ballot, 

but make them sign. Allow for them to sign an affidavit saying that 

they knew that if this vote was cast in the wrong precinct, it 

wouldn’t be counted. That was a court compromise on a fine point, 

but it, in fact, was just that. I think, at that point, the court was 

doing their job. 

Ms. MILLENDER-MCDONALD. But are you saying—— 

Secretary BLACKWELL. So the answer to your question is in Ohio 

in this election, everybody got a provisional ballot that demanded 

one. There was a good-faith effort made to tell them that it had to 

be cast in the precinct in which they resided. Or, as Ohio law says, 

they could go down and vote at the County Board of Elections and 

if you happen to live in the county that was forward thinking 

enough and if they had provisional ballot centers, they could have 

voted there. 

Ms. MILLENDER-MCDONALD. I was going to ask you that. Why is 

it—so, in other words, provisional ballots are one thing but to count 

those that were submitted is another thing. 

Secretary BLACKWELL. Right. 

Ms. MILLENDER-MCDONALD. So you still disenfranchise people 

for not counting these ballots when, in fact, you should have 

dragged them down to this provisional center where I suppose you 

have the setup for them to then follow through on whatever they 

need to for clearance. 

Secretary BLACKWELL. They can be told that. 

Ms. MILLENDER-MCDONALD. I am sorry? 

Secretary BLACKWELL. I would say in most counties they were 

told that. Voters have some responsibility. We don’t run a taxicab 

service. The fact is that they were told the precinct in which they 

could vote and had that vote counted in accordance with Ohio law, 

not California law, not Massachusetts law. Well, in Massachusetts 

it wouldn’t have counted. We, in fact, told voters that if they still 

insisted on a ballot, HAVA said they could get a ballot. 

Ms. MILLENDER-MCDONALD. That is correct. 

Secretary BLACKWELL. And they got a ballot in Ohio. But Ohio 

law and the courts that upheld this said, ‘‘We are not going to, in 

fact, be responsible for disenfranchising you. We will tell you where 

263 

you are supposed to vote and if you don’t want to do it and for 

whatever reason you want a provisional ballot—— 

Ms. MILLENDER-MCDONALD. But they disenfranchised them anyway. 

Secretary BLACKWELL. They disenfranchised themselves if they 

didn’t vote in the right precinct. Look, let me just put it this way: 

Given the big states, the most popular states, we, in fact, had the 

highest validation rate than any big state in the country who had 

a similar law to ours. California in accordance with their, was one 

notch under. We had 78 percent rate and California had 77. 

Ms. MILLENDER-MCDONALD. I understand. That is correct. 

Secretary BLACKWELL. Our neighbors next door had about 38 

percent and Illinois had 49. 

Ms. MILLENDER-MCDONALD. See, we don’t tell them that their 

provisional ballots are not going to be counted. 

Secretary BLACKWELL. And Arnold is not the Governor of Ohio 

either. I understand that we have different laws. 

Ms. MILLENDER-MCDONALD. So is your law in conflict with 

HAVA? 

Secretary BLACKWELL. No. HAVA says that in terms of the 

counting of ballots, jurisdiction is determined by state law. State 

law has been well established in the state of Ohio as being in the 

precinct. 

Ms. MILLENDER-MCDONALD. Mr. Blackwell. 

Secretary BLACKWELL. Yes, ma’am. 

Ms. MILLENDER-MCDONALD. Another thing, if you can clear this 

up with me, because I have a list of problems from Ohio as I will 

have a list of problems from California and any other state that we 

go into. This problem says that voters were told, whether it was 

incorrectly or correctly, and incorrectly in this instance, that the 

presidential election would be on Wednesday the 3rd of November 

as opposed to November 2nd. 

If you have this really widespread educational campaign program 

where there are videos and people from the media, why would that 

be something that voters were told? If that is correct, that is another provision or statement that disenfranchised people. 

Secretary BLACKWELL. The answer to that is I don’t have a clue 

why somebody would do something so devilish and evil. I don’t 

have a clue, but the fact of the matter is—— 

Ms. MILLENDER-MCDONALD. You hadn’t heard that before today? 

Secretary BLACKWELL. I heard it. I don’t have a clue why they 

would have done it. I still don’t know the motivation. You can’t 

even tell me who did it. 

Ms. MILLENDER-MCDONALD. No, I cannot. 

Secretary BLACKWELL. Right. You can’t tell me who did it. I have 

not a clue because we spent money telling people when the election 

date was in the 88 counties. You tell me why. A lot of the assertions are made on Internet boards or a lot of the assertions are 

made by wild conspiracy theories. I have no idea. If I could interpret their brains and their minds, I would be a rich man. 

Ms. MILLENDER-MCDONALD. You know what, Mr. Blackwell? 

Then why is it that this statement of those who went before this 

House of Congress on January 5, 2005, exercising their rights to 

raise questions of either improprieties or misinterpretations of alleVerDate Aug 04 2004 03:49 Jun 23, 2005 Jkt 020790 PO 00000 Frm 00265 Fmt 6633 Sfmt 6602 E:\HR\OC\A790.XXX A790
264 

gations, or whatever you want to define these, why were they characterized as nasty and disingenuous partisan people when, in fact, 

either side of that spectrum, had it fallen on whichever side, you 

would have the same type of exercise? 

I guarantee you that because I have been in the Congress long 

enough to see that exercise played out on both side of the spectrum. Why do you call Americans who are elected officials who are 

trying to exercise their constitutional right to inquire nasty and 

disingenuous? 

Secretary BLACKWELL. Let me say that anyone who alleged, intimated that any of our professional election officials or the Secretary of State or the Secretary of State’s employees promulgated 

that nonsense is disingenuous and silly. I really don’t care what 

their nationality is. 

Ms. MILLENDER-MCDONALD. We are not speaking on nationality, 

sir, nor culture nor gender. 

Secretary BLACKWELL. That is my point. I call it as I see it. Anybody who suggests that there was an election organization, official 

election organization in the State of Ohio that promulgated that 

misinformation is disingenuous or silly and I stick by that label. 

Ms. MILLENDER-MCDONALD. Let me say this. You knew ahead of 

time that these members were going to come to the floor and speak 

their displeasure about the selection. Why didn’t you then write a 

letter to try to clarify some of this as opposed to calling them nasty 

and disingenuous? 

Secretary BLACKWELL. Well, let me just say—— 

Ms. MILLENDER-MCDONALD. You are a man of honor. 

Secretary BLACKWELL. And integrity and professionalism and the 

list goes on. 

Ms. MILLENDER-MCDONALD. And humble. 

Secretary BLACKWELL. Very much so. I will submit for the record 

the Cleveland Plain Dealer and the Columbus Dispatch third party 

media representatives who did thorough analysis of the allegations, 

so it wasn’t any propaganda coming from the Secretary of State’s 

office. I, in fact, didn’t need to be there. Representatives of our 

state, the Chairman included, submitted for the record these independent analysis. Yeah, I didn’t need to write a letter. 

That is why they are elected and that is what they get paid to 

do and they do it well. They stuck to the facts. You would have to 

have the imagination of Jonathan Swift to believe some of this nonsense that was promulgated on that day. 

Ms. MILLENDER-MCDONALD. Let me say my last thing here, Mr. 

Blackwell. In your statement you say that when the intimation of 

some vast conspiracy to steal the election is so much more exhilarating and speaking to the whole notion that they were experienced, the elected officials, those who knew the process, Mr. 

Blackwell, and that you were disappointed with this bipartisan 

type of chat. 

Let me say this to you and Mr. Walch. While Mr. Walch states 

that he has only had one complaint and you are saying that these 

are the only folks who—only the disciplined partisans were the 

ones who have been very upset about this election. What about the 

average Joe? What about the average Jean? 

265 

What about those who think like those whom you have just outlined? Mr. Walch, we have been inundated with calls from Ohio. 

Maybe your lines are tied up with other things because those calls 

are coming to us. But you cannot always identify the partisans. 

You said yourself, Mr. Blackwell, that you got a lot of registrations 

of third party people. 

Secretary BLACKWELL. Absolutely. 

Ms. MILLENDER-MCDONALD. So how can you make that type of 

assumption or comments that they were partisan acts? 

Secretary BLACKWELL. I am glad that you directed folks to that 

segment of my fully submitted statement for the record. 

Ms. MILLENDER-MCDONALD. I am just trying to get some clarification. 

Secretary BLACKWELL. I am glad that you pointed that out. I will 

suggest to you that it was an interesting—let me just give you a 

quote. Let me compliment a partisan in this regard. On September 

29, 2004, Dan Travis, spokesperson for the Ohio Democratic Party, 

called Blackwell’s decision, and this is a quote, ‘‘A victory for the 

citizens of Ohio. You can’t attempt massive deception and fraud to 

make the ballot,’’ 

Travis said. ‘‘The law is clear on this and they did not follow the 

law.’’ This was in the context of an article which, in fact, spoke to 

the face that I was pretty evenhanded in my decision and that I 

didn’t let partisan persuasion get in the way. He was subsequently 

fired. 

Ms. MILLENDER-MCDONALD. By whom? 

Secretary BLACKWELL. The Ohio Democratic Party. He was subsequently fired for speaking the truth. 

Ms. MILLENDER-MCDONALD. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, gentlelady. 

The gentlelady from Ohio 

Ms. TUBBS-JONES. Mr. Chairman, thank you very much. Secretary Blackwell, it is so kind of you to come before our Committee 

and answer questions. 

Secretary BLACKWELL. Good to see you. 

Ms. TUBBS-JONES. It was so good to see me that you chose not 

to shake my hand in the anti-room. Is that correct, sir? 

Secretary BLACKWELL. I chose not to shake your hand. 

Ms. TUBBS-JONES. That is the question. You chose not to shake 

my hand in the anti-room because it was so good to see me. Is that 

right? 

Secretary BLACKWELL. I chose not to shake your hand until I see 

how you purport yourself in this setting. 

Ms. TUBBS-JONES. Well, you know what? Watch me, sir. 

Secretary BLACKWELL. I have been watching you a lot. 

Ms. TUBBS-JONES. Let me ask you this question. Could you answer this question for me, sir, please? A quote said, ‘‘I chose not 

to enforce the procedures with regard to the five-minute vote.’’ Can 

you tell me where the five-minute vote is listed and how you have 

the option of deciding whether somebody has five minutes to vote 

or 25 minutes to vote? 

Secretary BLACKWELL. I said we didn’t have that problem in this 

election because we basically erred on the side of the voter. Now, 

if you want me to create longer lines, if you want me to say Ohio 

266 

is the state that harasses, the fact of the matter is those are local 

decisions. Because I only have 12 people, we did not, in fact, encourage the enforcement of the five-minute rule. 

Ms. TUBBS-JONES. So you are saying there is a rule under Ohio 

law that says people only have five minutes to vote and when they 

don’t vote in five minutes, you can push them out of the line and 

tell them to keep going? 

Secretary BLACKWELL. Unfortunately. 

Ms. TUBBS-JONES. Would you please cite that for us, please, the 

citation? 

Secretary BLACKWELL. We will get it for you. Before you leave we 

will have it for you. 

Ms. TUBBS-JONES. Let me also ask you, sir, you quoted—you 

seem to want to quote so many Democratic persons in support of 

your position. You quoted Don McTigue in your written statement 

and it says—let me quote a statement about the outcome. ‘‘Overall 

Ohio has a good system. Like any system if you scrutinize it 

enough, you are going to find weakness.’’ 

I was interested that Mr. McTigue would make such a statement 

so I called him up and asked him was there anything else that he 

said and he specifically stated to me that there were some deficiencies. ‘‘If you look close enough you will see problems like lack 

of procedure, lack of leadership, and lack of consistency in direction 

from the Secretary of State.’’ Just so the record is clear, I just 

wanted to add that to the record, sir. 

Now, let me also ask you, sir, I saw your TV ads giving education 

to people about voting. Can you tell us specifically what you told 

the voter with regard to voting location, sir? 

Secretary BLACKWELL. Vote in your precinct. What we, had instructed and in accordance with Ohio law, Boards of Elections were 

to tell voters that they must, in fact, vote in their precinct for their 

vote to count. 

Ms. TUBBS-JONES. Did you tell them in their ad that if they 

couldn’t vote in your precinct they could go vote at the Board of 

Elections? 

Secretary BLACKWELL. No, the Boards of Elections did. 

Ms. TUBBS-JONES. No, but you were the one spent $2.5 million 

doing a TV ad for people who, in fact, have the opportunity to do 

punch card voting because 70 percent of the people in Ohio do 

punch card voting. 

Secretary BLACKWELL. Absolutely. 

Ms. TUBBS-JONES. In this ad you said, ‘‘Vote your precinct,’’ but 

you never told them that if they couldn’t vote in precinct, they 

could go the Board of Elections and vote. Did you, sir? 

Secretary BLACKWELL. I sure didn’t. 

Ms. TUBBS-JONES. Excuse me? 

Secretary BLACKWELL. Can’t you hear? I said I sure didn’t. 

Ms. TUBBS-JONES. And you did not why? 

Secretary BLACKWELL. Because you can only get so much information in a 30-second ad which is the most—— 

Ms. TUBBS-JONES. That was important information because you 

just gave that to all of us for the world to see, sir, that either you 

go vote at a designated voting location, you vote in your precinct, 

or you go to the Board of Elections. 

267 

Secretary BLACKWELL. Absolutely. And that is what they were 

told. We made sure that those 50,000 election officials and poll 

workers understood that was an option for someone who was in the 

wrong precinct but was insisting on—— 

Ms. TUBBS-JONES. But you did an ad statewide. 

Secretary BLACKWELL. Just—— 

Ms. TUBBS-JONES. You did an ad statewide that you spent $2.5 

million on and you didn’t tell them. 

Secretary BLACKWELL. And it worked. 

Ms. TUBBS-JONES. Except—— 

Secretary BLACKWELL. It worked. It worked. It worked. 

Ms. TUBBS-JONES. When you get through saying ‘‘it worked’’ let 

me go on. How many more times are you going to say it worked? 

Secretary BLACKWELL. It worked. It worked and I will say it 

worked every time you ask the question. The education program 

worked and if you want the details on it, you can have them, but 

it worked. The fact of the matter is that we have—among popular 

states, we had the best validation rate and that meant that those 

folks counted. 

Ms. TUBBS-JONES. But you—— 

Secretary BLACKWELL. And our campaign was—— 

Ms. TUBBS-JONES. Just let me know when you are done. 

Secretary BLACKWELL. I sure will. Our campaign was Make Your 

Vote Count. The surest way to make your vote count was to vote 

your precinct. What I don’t have in here—let me tell you what I 

don’t have in here. We went into a million households by phone 

and they were essentially urban households and they were disproportionately in your district and in Cleveland. We told people 

there how to vote their provisional ballot. We told them to call 

their Board of Elections and we had a system that allowed for that. 

Let me tell you, as much as you want—— 

Ms. TUBBS-JONES. Mr. Chairman, I can’t let you use all my time 

answering the questions you have already answered. 

Secretary BLACKWELL. As much as you want to create a thirdworld situation in the United States, most households, even in your 

district, have telephones and we, in fact, called them. We called 

them. I want you to know that we paid particular attention to your 

constituents. We called in and told them how to vote that provisional ballot to make their votes count because what I wanted was 

as many votes to count as humanly possible. 

Ms. TUBBS-JONES. Are you done, sir? 

Secretary BLACKWELL. For right now. 

Ms. TUBBS-JONES. So you specifically said—you called into my 

district and you told people to go vote their precinct but you never 

told them they could go vote at the Board of Elections? 

Secretary BLACKWELL. No, we told them—— 

Ms. TUBBS-JONES. The answer is yes or no, sir. 

Secretary BLACKWELL. No, it is not yes or no. We told them to 

call the Board of Elections so that they would, have the option of 

where to go. 

Ms. TUBBS-JONES. But you could have told them. Let us count 

the words. Vote in your precinct or vote at the Board of Elections. 

Call the Board of Elections. Same number of words. You could have 

268 

said to them vote at the Board of Elections. Could you have not, 

sir? 

Secretary BLACKWELL. But given that I was elected Secretary of 

State with a constituency much larger than yours, I chose the language for that ad. 

Ms. TUBBS-JONES. And in the ad you specifically excluded you 

could vote at the Board of Elections. 

Secretary BLACKWELL. Right. Look, let me just say, all you had 

to do was go back and look at that ad. We told them where to call. 

We got them to our website. That information was right there so 

they got that information. We, in fact, made sure that coworkers 

understood to give them that information. I will tell you what. I 

refuse to sit here and be harangued by you. 

Ms. TUBBS-JONES. You know what, Mr. Blackwell? I am not trying to harangue you, sir. If you choose not to—— 

Secretary BLACKWELL. Hold on. Let me—— 

The CHAIRMAN. Time has expired. 

Secretary BLACKWELL. Thank you. 

Ms. MILLENDER-MCDONALD. Mr. Blackwell, Mr. Chairman, just 

one thing, though. Not every voter has a master’s degree. Not every 

voter has a bachelor’s degree. We tend to want to make sure that 

information is on a level where everyone understand. Now, had you 

said that you vote this way or that way or your vote would not be 

counted, that would have sparked—— 

Secretary BLACKWELL. Madam, look. Both of us are trained educators. 

Ms. MILLENDER-MCDONALD. I am sorry? 

Secretary BLACKWELL. Both of us are trained educators. 

Ms. MILLENDER-MCDONALD. Yes. 

Secretary BLACKWELL. I, in fact, used the language that a bipartisan firm, and you can have the copies. These are the same guys 

that did work for Bill Clinton. We used the language that they recommended and they were very much familiar with the demographics. 

Ms. MILLENDER-MCDONALD. You know, bipartisan doesn’t mean 

a thing when these folks speak over—— 

Secretary BLACKWELL. But did you hear the ad? Did you hear the 

telephone message? 

Ms. MILLENDER-MCDONALD. No, I did not see the ad. 

Secretary BLACKWELL. We will get you the—hold your judgment 

on the complexity of the message on the telephone. 

Ms. MILLENDER-MCDONALD. I am wide open to anything. 

Secretary BLACKWELL. We will get you that. 

Ms. MILLENDER-MCDONALD. The last thing I want to say to you 

is one of you local county folks said that 30 days—in fact, it was 

Mr. Andrews or Anthony. 

Secretary BLACKWELL. Anthony. 

Ms. MILLENDER-MCDONALD. Thirty days out there was a map 

outlining where the precinct would be and it was a change of 

venue. Three weeks from the election the misinformation was disseminated which means it became absolute chaos so says Mr. Anthony. Now, those were also problems and issues why many were 

concerned about the disenfranchisement of voters. 

Mr. Walch, do you want to answer? 

269 

Mr. WALCH. If I could, Mr. Chairman, Congresswoman. That, 

again, was a case of folks making calls. We have no idea who was 

making those calls or who they were making them to that were 

calling folks in Gahanna and telling them that they were now supposed to go vote in Canal Winchester. I don’t know the specific jurisdictions. Those were not made by election officials or anything 

like that. I felt the Franklin County Board of Elections when this 

came to light that somebody was out making these types of phone 

calls, Franklin County Board of Elections did a very good job of getting it in the newspaper, that if anybody had any question of where 

they were to go to vote, they would contact the Board of Elections. 

Ms. MILLENDER-MCDONALD. Mr. Walch, do you find that is possibly trying to disenfranchise others? 

Mr. WALCH. Absolutely. No question about it but it was not done, 

again, by election officials or anybody like that. We have no idea 

who did it. Somebody with an agenda of some sort. That would be 

very hard to determine. 

Ms. MILLENDER-MCDONALD. If you did not know who did it, it 

could very well have been done by some elected folks who were on 

either side of the spectrum. Let us be fair about this. You cannot 

say it was not done given that you don’t know who did it. 

Secretary BLACKWELL. Right. I can say this. In fact, until proven 

with hard evidence otherwise, we will defend the professionalism 

and the integrity of the 50,000 election officials and poll workers 

in this state. I would defend them to the teeth. 

Here for your record, and let me just say to the gentlewoman 

from California, California taught me the fact that we have an obligation to be bilingual. 

Ms. MILLENDER-MCDONALD. I am sorry? An obligation to what? 

Secretary BLACKWELL. To be bilingual. 

Ms. MILLENDER-MCDONALD. Oh, yes. 

Secretary BLACKWELL. Because we have the fourth highest migrant worker population in the country after California, Texas, and 

Florida. A lot of those folks just migrate, but some families stay 

around. The Spanish-speaking population has exploded in portions 

of our state. The outline of how every dollar was spent, the accounting firm, and our report to the controlling board and the legislature is in this document. 

We, Mr. Chairman, will make sure that you get that. We will 

also make sure that the citing for the gentlewoman from Cleveland 

will be granted to the Committee so there is no misunderstanding 

about it. I wrestled with it in 2000 because it was a real problem 

right again here in Franklin County, where people were forced out 

of the voting booth because they were taking too long. 

This is not a perfect science, but if you are standing in line and 

you have to be at work or you have to go to the babysitter and 

somebody is taking 15 minutes in that booth and that adds to your 

line, you now see the human dilemma. Do you rush that person in 

the booth or do you inconvenience that person who is ready to vote 

and standing in line? 

Those are the on-site decisions that local election officials have 

to make and that is what we try to do from our historical experience in 2000. We first try to go to the legislature and say, ‘‘Look, 

that makes sense.’’ I would suggest this to you, Mr. Chairman, that 

270 

the DRE system is not necessarily a quick system so we have to 

understand what the tradeoffs are in these new systems. We have 

to understand that Ohio is becoming more and more a state with 

referendum or making the ballot. Citizens are speaking out on 

issues. That means that the ballot is going to become more complex. 

Ms. MILLENDER-MCDONALD. That is a good thing. 

Secretary BLACKWELL. But it is going to be more complex and it 

is going to require greater voter education at the county level. 

Hopefully in 2006, we will not have the punch card dilemma in the 

state of Ohio or any place in this country. 

The CHAIRMAN. Secretary of State, if you are done, there is a 

question for Mr. Walch by the gentlelady from Cuyahoga County. 

I would conclude with a brief question to the subject of our hearing 

today, HAVA. Mr. Secretary, are there any areas in particular that 

you think we need to readdress or look at on HAVA, or should we 

let it go to the EAC for a while? Is there anything in general? 

Secretary BLACKWELL. Here is the dilemma that we have. It is 

an age-old dilemma and American federalism. You see it going on 

now with a case in Florida. Where do federal rights to protect 

human dignity and human rights and civil rights start versus state 

rights? You have this issue as to whether or not there is a state 

requirement of a VVPAT and there is no national requirement. 

The question is: Are you willing to take a risk on a machine that 

has gone through, and we will give it to you, the most comprehensive vetting process in the country but it still has some security 

issues? Does the Congress? Does this Committee? Any of us want 

to own that by putting a machine that has not met security concerns? If our search is for the perfect system, it does not exist. We 

have to make some decisions based on money that is available. 

I know why this committee has every intention to try to get us more money. I have to work from the fight that we have $150 million in the bank and that cannot buy an infinite number of machines. It can only by a finite number of machines. The VVPAT increases, at minimum, the cost of the machines, as we understand 

the design right now, about 25 percent. 

If, in fact, one of the things that we want to do is to buy more 

machines to reduce the voter-to-machine ratio, then we don’t have 

enough money so there has to be some understanding and some 

tradeoff on functionality of machines, vote security, and dollars 

available. You have a state government that is talking about a $5 

billion deficit. I can’t imagine with the prosecution of the war that 

you are going to get any more money through the Congress. 

Maybe you will. If so, more power to you because it is needed. 

I can tell you right now that the county governments, there might 

be one or two or three or four or five or six or seven that might 

tax their own citizens for more expensive machines. For the 

present you all are the only game in town and the question for us 

in charge of election administration really does turn on our ability 

to get this thing done within that budget. 

Mr. Chairman, you all accommodated me and I thank you for 

that. I do think for the public because this is one of the more outstanding issues in front of us that the Chair said you would hear 

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sibilities on a day-to-day basis. As you indicated, she came not only 

from your district but she came from the ranks of election professionals. She was a Deputy Director of a Board of Elections. She 

was a Director. I have told you in my comments that she is one 

of the most certified election professionals in the country. I do 

think that for the record we must understand that while I take 

ownership for complying with state law in the paperwork standard, 

I think you owe it to Pat to hear why she recommended it to me. 

The CHAIRMAN. Let us go to Pat. I think we are finished with the questions. Let me also thank you for being here. Also the $3.9 billion, just to clear that up, people ask how much the feds will supply. We said $3.9 billion. We need to fund $3.9 billion. We don’t want to live the next five, 

six, seven, 10 years knowing that we gave another unfunded mandate. The commitment we made to all the groups is that we want 

to provide the $3.9 billion. 

Ms. MILLENDER-MCDONALD. Absolutely, Mr. Chairman. Mr. Blackwell, you were saying that you have $105 million in the bank? 

Secretary BLACKWELL. For machines. 

Ms. MILLENDER-MCDONALD. Oh, for machines. 

Secretary BLACKWELL. For machines. Again, the money that you 

all have given for centralized voter registration, not only was it 

needed, it was well used and we were among the leaders in the 

country in implementing that system. It will get at some of the concerns that you all have talked about today. 

Congresswoman Tubbs-Jones, the citing is 305—— 

Ms. TUBBS-JONES. Are you reading from that, sir? 

Secretary BLACKWELL. Yes. 

Ms. TUBBS-JONES. Can I read with you? 

Secretary BLACKWELL. 305.23. ‘‘Occupancy of voting compartment.’’ 

Ms. TUBBS-JONES. Can I read with you? 

Secretary BLACKWELL. ‘‘Marking and return of ballot.’’ 

Ms. MILLENDER-MCDONALD. Is there another copy? 

Secretary BLACKWELL. I’ll give you this for the record. Quite naturally I want it for the record. I have a copy, I will read it for the 

record, and I am going to submit it to you. ‘‘No voter shall be allowed to occupy a voting compartment or use a voting machine 

more than five minutes when all other voting compartments or machines are in use and voters are waiting to occupy.’’ 

Ms. TUBBS-JONES. So clearly you know that provision, 305.23, 

which I haven’t had an opportunity to see, sir, is inappropriate and 

probably violates the civil rights of many voters, etc., so you chose 

not to enforce it. 

Secretary BLACKWELL. What I chose to do is to try to get the legislature to change the statute because I don’t think it is fair and 

I do think that it runs the chance of disenfranchising somebody 

who is not necessarily illiterate, but a slow reader. 

Ms. TUBBS-JONES. And that is what I just said. 

Secretary BLACKWELL. Okay. The answer is yes, I thought it was 

very important to change it. Nobody has challenged the constitution—I mean, the civil rights aspect of it, so I don’t know—— 

Ms. TUBBS-JONES. But as the Chief Elections Officer for the 

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body so that would never happen to a voter because we are concerned about it. 

Secretary BLACKWELL. I already did. I already did, dear. I already, did. I already did. It was one of the things that I jumped 

on right away after the 2000 election, believe me. 

Ms. TUBBS-JONES. Thank you, Mr. Secretary. 

Secretary BLACKWELL. You are most welcome. You can come visit 

me anytime. 

The CHAIRMAN. Thank you. We will move on to Pat Wolfe. 

STATEMENT OF PAT WOLFE 

Ms. WOLFE. I will give you the background of the voter registration form. I have been in election work for 21 years and there has 

always been a paper weight because it is a permanent record. If 

you are registered as I have been for almost 27 years or more, it 

is a permanent record of your registration. It stays with the County 

Board of Elections so it must sustain during that period of time. 

One of the other things that was encountered during the process 

of all of this, not only is it a permanent record, but when the National Voter Registration Act occurred and designed then the new 

form that all the boards should use, it also required it be a selfmailer. In order to meet the United States Postal Service requirements for that type of product, it had to meet a minimum thickness 

which is .007 inches. In order to accommodate that right now it 

takes an 80-pound paper weight. The reason the postal service has 

that is because of their new processing machines. You don’t have 

all the hand stamping that you used to have in the processing 

many years ago. It is now electronic. It is very high speed. It grabs 

those cards and it will destroy voter registration cards. 

It was one of the main purposes that anything that is a self-mailer must meet that paper weight. Unfortunately, as with any election, I am sure there is not a board in this state and our office that 

those that are damaged have been on the light weight paper have 

been mailed as a self-mailer and they come totally shredded up. 

At times we can make out a date or make out a name or maybe 

a county, but we cannot tell who that voter is. That is what is occurring with voter registration forms as far as damage that is occurring when they are mailers. As the Secretary pointed out, it was 

brought to our attention, particularly with this year, were all of the 

hand-delivered forms that were being done, which was very unusual. 

It became an issue with the boards and they were saying, ‘‘Okay, 

the paper forms are coming on regular weight paper but they are 

being hand delivered.’’ As soon as the Secretary was aware of that 

and the issues it was creating for the boards, we tried to go back 

out with information to allow them on regular weight. He did come 

back out and said, ‘‘Now, we will accept them on that weight since 

they are hand delivered.’’ 

The CHAIRMAN. Any questions? The gentlelady from California, 

any questions? 

Ms. MILLENDER-MCDONALD. No. I am sorry, Mr. Chairman. I 

was just trying to see what time I have left. I have to take a plane 

out so I have about 15 minutes. 

273 

The CHAIRMAN. Thank you. No further questions? I want to 

thank you for being here today and for sharing your testimony. 

Thank you. 

We will move on to the last panel. 

STATEMENTS OF EDWARD FOLEY, PROFESSOR OF LAW, OHIO 

STATE UNIVERSITY, MORITZ COLLEGE OF LAW AND DIRECTOR, ELECTION LAW AT MORITZ PROGRAM; DANIEL P. 

TOKAJI, ASSISTANT PROFESSOR OF LAW, OHIO STATE UNIVERSITY, MORITZ COLLEGE OF LAW; MARK F. (THOR) 

HEARNE, II, NATIONAL COUNSEL, AMERICAN CENTER FOR 

VOTING RIGHTS; NORMAN ROBBINS, CO-COORDINATOR, 

GREATER CLEVELAND VOTER REGISTRATION COALITION 

Ms. MILLENDER-MCDONALD. Mr. Chairman, because of the time 

constraints, can we just ask these gentlemen to just give us an 

overview? 

The CHAIRMAN. Edward Foley, Professor of Law, Ohio State University, Moritz College of Law. Mr. Tokaji had to leave from Ohio 

State University due to the time factor. And Mark Hearne, National Counsel, American Center for Voting Rights, and Norman 

Robbins, Co-Coordinator, Greater Cleveland Voter Registration Coalition. Starting with Mr. Hearne. 

STATEMENT OF MR. MARK HEARNE 

Mr. HEARNE. Thank you, Chairman Ney and members of the 

House Administration Committee. Because of the late hour my testimony has been presented and, as the Ranking Member requested, 

I will give you just a brief overview of what I did address in that 

testimony and I will be available for any questions. 

My name is Thor Hearne. I am a principal of the Lathrop and 

Gage Law Firm, I am a long-time advocate of voter rights and an 

attorney experienced in election law. I was asked and served on the 

Missouri HAVA implementation committee which helped Missouri 

comply with HAVA and bring Missouri into compliance. I was 

asked to serve in that capacity by Secretary of State Matt Blunt. 

Today I am here in my capacity as the counsel for the American 

Center for Voting Rights. The American Center for Voting Rights 

is a nonpartisan watchdog voting rights organization and legal defense organization which is committed to defend the rights of voters and to work to increase public confidence in the fairness of our 

election process. 

I am joined in this effort by almost a dozen different Ohio lawyers who were involved in this past election representing several 

of this state’s most prestigious law firms. During the conduct of the 

last election different events were brought to our attention. This report of these events has been assembled and we presented it to the 

committee. I would ask, Mr. Chairman, that this report be included 

in the record. 

The CHAIRMAN. Without objection. 

Mr. HEARNE. The essence of my remarks go to the role, which 

has been much discussed today that third parties played in the 

conduct of this election. You have heard it from a number of different witnesses. Specifically, different panelists have spoken of the 

role these third party groups played in voter registration, fraud 

274 

and voter intimidation. I think you mentioned several times, Congresswoman Millender-McDonald, the concern about people making 

phone calls to deceive people as to the date of the election or where 

their polling place was. Those are reprehensible acts. 

Anybody who makes an effort to have an illegal vote cast is 

disenfranchising a legal voter. Similarly, any effort to try to prevent anyone from voting who is entitled to do so needs to be very 

severely dealt with. We are very concerned about that. That was 

one of the issues which this report goes into. 

Mr. Chairman, the questions that I believe need to be addressed 

aren’t just what individuals were involved, but what groups were 

involved. As I said, there is a massive effort in Ohio, as you have 

noted Congresswoman Millender-McDonald, this was because of 

Ohio’s status as a battleground state where an onslaught was made 

against the Ohio election system by third parties with outside interests that are seeking to try to influence the election result in 

Ohio. 

One of these means by which that was done is the type of voter 

registration fraud that we have seen. We had a reference earlier 

today to the absolutely outrageous case which happened in Defiance County, Ohio, in which an individual was paid by the NAACP 

Project Vote in crack cocaine to submit more than 100 fraudulent 

voter registration forms including the now infamous Dick Tracy, 

Mary Poppins, Michael Jackson, and George Foreman. 

The fraudulent voter registration effort was in many ways only 

part of the onslaught that Ohio experienced. We saw also the concern that has been expressed because of the litigation. These election lawsuits caused great chaos and confusion and difficulty for 

the election officials seeking to implement Ohio election law and 

made it more difficult to have a fair and honest election. 

My observation, and that of those who have submitted this report and contributed to this report, is that Ohio election officials 

worked very hard, both Republican and Democrat, in a bipartisan 

way to make sure Ohio citizens enjoyed a fair and honest election. 

The concern that we present to this Committee is that presented 

by these third party groups and their role sponsoring the submission of fraudulent voter registration forms and promoting strategic 

litigation seeking to remove the safeguards that would have prevented fraudulent registrants like Dick Tracy from actually casting 

a ballot that was counted. This litigation seeking to eliminate safeguards against voter fraud is another significant point of concern 

that we bring forward to this committee at this point. I will let the 

balance of my remarks, Mr. Chairman, stand in the prepared testimony. 

The CHAIRMAN. Thank you, Mr. Hearne. Without objection. 

Mr. Foley. 

[The statement of Mr. Hearne follows:] 

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STATEMENT OF MR. EDWARD FOLEY 

Mr. FOLEY. Mr. Chairman and members of the Committee, thank 

you for inviting me here today. My name is Edward Foley. I am 

a professor at the Moritz College of Law at the Ohio State University where I also serve as the Director of the Election Law program 

at Moritz. 

I ask that my full testimony be made part of the record which 

I understand it can be at this hour. I apologize again on behalf of 

my colleague, Dan Tokaji. If it is appropriate, can I ask that his 

written testimony be made part of the record as well? 

The CHAIRMAN. Without objection. Please give our apologies to 

him. 

Mr. FOLEY. Thank you. The basic point of my testimony is to say 

that the election system in Ohio is not sufficiently well designed to 

withstand a close election. That was true in 2004. It is true currently the way the legislative drafting of Ohio law is today. 

Ms. MILLENDER-MCDONALD. Say that again, sir. 

Mr. FOLEY. The election laws in Ohio are not sufficiently well designed to withstand a close election. This is a point that applies to 

lots of other states besides Ohio. The Governor’s race in the state 

of Washington is an illustration of what can happen in a very close 

election so I don’t mean to single out Ohio in this regard. 

The reason in my judgement why Ohio did not have a severe crisis in November of 2004 was simply that the outcome was not close 

enough to sufficiently test the system. A well designed election system in my judgement would be one that can withstand a close election. It is like building skyscrapers to prevent earthquakes. You 

want to build the skyscraper so that it can withstand a 7.0 on the 

Richter Scale or whatever. 

I do think we have a better system than we had in 2000. I think 

HAVA helped in that regard. It was a necessary piece of legislation 

but, in my judgement, it is not sufficient. We have improved our 

ability to withstand closer elections. If the margin of victory, so to 

speak, on election night in 2004 in the presidential race in Ohio 

had been 1 percent or half a percent, i.e., around 30,000 votes or 

60,000 votes, I think we would have had a terrible situation and 

we wouldn’t be able to say that the state withstood the pressures. 

Ms. MILLENDER-MCDONALD. Mr. Chairman, Mr. Foley, notwithstanding your statement, irrespective of the number of votes, and 

this is why I said earlier we were not looking at overturning an 

election. We are talking about when one voter is disenfranchised 

and that is questionable irrespective because we cannot have one 

voter disenfranchised in any state, California, Ohio, or whatever. 

When you have a multitude of folks saying they were 

disenfranchised, it becomes an issue. 

Mr. FOLEY. I agree completely. We had significant problems in 

the state of Ohio in terms of disenfranchisement of individual voters. I think a well crafted election system would provide remedies 

and redress to individual voters for those denial of fundamental 

civil rights. I also think that there is a social and civic statewide 

interest that the system be able to measure whether or not a close 

election was accurately held and accurately counted. 

The problem in Ohio is that we don’t have the rules yet in place 

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307 

lation in Ohio which hopefully will address many of these issues. 

I was pleased that he itemized some matters that would go to that. 

As current law stands, that is not true and it primarily relates not 

exclusively but primarily relates to the issue of provisional voting. 

Provisional voting is very important. 

It is a necessary piece of the electoral system. We do not have 

in Ohio the laws for determining as enacted by the general assembly for determining when to count provisional votes and how to 

avoid the necessity of too many provisional votes because when you 

have over 2 percent of all ballots casts provisional ballots, that 

means that if the margin of victory is within 2 percent, say a half 

a percent or 1 percent, that means the outcome of the election is 

going to be in doubt because of all the number of provisional ballots 

that are left to be counted. 

When you combine this fact with the electoral college time table, 

the so-called safe harbor date which is five weeks after election 

day, there is not the time table to handle the counting of provisional ballots, the evaluation of provisional ballots in the month of 

November in such time to resolve that and to handle any contest 

action so that there could be—— 

Ms. MILLENDER-MCDONALD. How do you find too many provisional ballots? How do you find that? Most of the time provisional 

ballots are given to the minority population. 

Mr. FOLEY. Well, every voter—I agree with statements made earlier today by a number of people that every individual who comes 

to the polling place should have the opportunity to receive a provisional ballot. That is an essential safety net in the process. 

I also think it is important to figure out how they could have received a regular ballot if they are, indeed, a registered voter qualified to vote because it would be better for the voter and better for 

the election system as a whole if they had been able to vote a regular ballot rather than a provisional ballot. 

Ms. MILLENDER-MCDONALD. That is true but that is in the aftermath, not during an election time. 

Mr. FOLEY. Correct, but a well designed system would be one 

that avoided the problems ahead of time. Provisional ballots are 

like a fire extinguisher some have said. You want to have one in 

your house and you use it if you need to but it would be better to 

avoid the fire in the first place. This should probably be done as 

a matter of state legislation as opposed to new federal legislation 

but we do need new legislation to come up with a system before 

election day that will verify voter registration lists and give voters 

the opportunity to see why their names are not on the voter legislation list when they should be because they are registered, because 

they are qualified. 

There needs to be a process in the months of September and October that gives them a fair opportunity to say, ‘‘Yeah, I belong on 

the list. I was wrongly removed from the list as occurred in 2000.’’ 

That should happen in September and October. That should not 

happen in November as part of the evaluation of the provisional 

voting process. All the issues that were teed up to have huge litigation in Ohio in ’04 if it had been—if the margin of victory had been 

within the margin of litigation, all of those issues about eligibility 

could actually be handled ahead of time. 

308 

They are the same set of questions that could be addressed in 

September and October and it would be better for everybody if they 

were addressed then rather than after election day when people 

know the number of votes that they need to fight over to flip the 

election. That is the situation that I have heard in the Governor’s 

race in Washington where we see both sides saying, ‘‘We know 

what numbers we need to make up in order to flip the result.’’ 

The CHAIRMAN. Let me interrupt. The gentlelady has to leave for 

a flight. I want to thank our Ranking Member for being here. 

[The statements of Mr. Foley and Mr. Tokaji follow:] 

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Ms. MILLENDER-MCDONALD. I have two minutes to listen to Mr. 

Robbins. 

STATEMENT OF MR. NORMAN ROBBINS 

Mr. ROBBINS. What I have to say gives information that says 

that Professor Foley is right. We have data that show that of the 

30,000 provisional ballots that were rejected in Ohio, in 2004, thousands could have been prevented, first by proper registration procedures, as detailed in my written testimony. 

Second, the exercise of Ohio law requiring voters to go only to 

their home precinct led to numerous mistakes where people were 

denied their ballot. We have the data for that from Cuyahoga 

County. We polled 16 other counties and they have about the same 

type of rejection rates. Two-thirds of rejections were on registration 

issues, and nearly one-third were due to wrong precinct. 

Election fraud keeps coming up here. Two legal associates went 

to their databases and found that in all the elections of 2000 and 

2002 there was not a single relevant conviction in Ohio that went 

to the appeals level. Not a single one. 

In the election of 2004 I understand from data just obtained 

today there are only two cases under investigation in Cuyahoga 

County. In 10 years there were all of five cases that went to the 

appeals court level in Ohio, so do not tell us that election fraud is 

rampant unless you have got the facts to prove it. 

I wanted to say some other things but that is my two-minute 

part for you before you leave. 

Ms. MILLENDER-MCDONALD. Well, I did not come here with the 

intent of telling you that there was election fraud. 

Mr. ROBBINS. No. Many other people here mentioned that. That 

is why I wanted to get this out. 

Ms. MILLENDER-MCDONALD. You have to recognize that we came 

here to get the facts. 

Mr. ROBBINS. Right. 

Ms. MILLENDER-MCDONALD. And you have outlined those to us 

affably. Mr. Chairman, thank you so much. If I didn’t have to catch 

this last flight out trying to get to California, I would stay here. 

The CHAIRMAN. I was just told by the sergeant of arms—actually, 

your staff told me this is the first congressional hearing in the Ohio 

State House on record since 1803. 

Ms. MILLENDER-MCDONALD. Oh, for Heaven’s sake. Should you 

not applaud this man or what? 

The CHAIRMAN. I want to thank the gentlelady for traveling here 

and for your genuine interest in our election system. 

Ms. MILLENDER-MCDONALD. We have a bipartisan kiss for you. 

The CHAIRMAN. We will continue on. 

Mr. ROBBINS. Thank you, Mr. Chairman, and thank you for inviting me. I just had to get out those two points before the Congresswoman left. I wanted to give you the good news which is that 

thanks to HAVA 120,000 Ohioans successfully voted provisional 

ballots. I think that is a credit to Congress and to HAVA. I am not 

just the bearer of bad news. I do think we need to focus as well 

on what we still can do, as you have said, to address the 30,000 

Ohio of provisional ballots that were rejected. 

330 

In the interest of time, I will simply enumerate very briefly, (this 

is laid out in the written testimony) that thousands of registrations 

(estimated Ohio-wide) were either never entered—we certainly 

have this data for Cuyahoga County—or were entered incorrectly 

because of clerical or voter errors. We point out voter errors as well 

as clerical administrative errors. Also, we have evidence in Cuyahoga County that voters who were legitimately on the rolls were 

suddenly dropped by the time of election. 

By the way, everything I say is not imputing any ill intent. I believe these were purely administrative kind of normal errors. As 

Professor Foley pointed out, when you have an election as in Ohio 

that was decided by a little over 2 percent of the vote between the 

two candidates, we need to talk about errors that we have studied 

(projected Ohio-wide) which come to about 1 percent. 

In other words, had the election been closer, as Professor Foley 

said, to a 1 percent level, we would have been in the world of Florida 2000. We do need to make changes in these registration procedures. We do need to have more opportunity for voters to get educated ahead of time. 

As Professor Foley said, again, every election official will tell you 

that it is far better to prevent provisional ballots by proper notification procedures, corrections, etc., than it is to wait until the day of 

election. That issue, I think, should be addressed and the suggested 

reforms are there. I won’t go through them in the interest of time. 

Also, as I mentioned before, we estimate that about 5,000 provisional ballots Ohio-wide were unnecessarily rejected because of the 

home precinct rule. 

We estimate based on what we have learned in Cuyahoga County, and as I mentioned earlier, the reasons for rejection of provisional ballots are about two-thirds because of registration issues. 

They were said not to be registered. Almost one-third were rejected 

because of wrong precinct. 

The CHAIRMAN. You mean the voter ended up in the wrong precinct? 

Mr. FOLEY. They were disqualified because the provisional ballot 

was found to be in the wrong precinct, yes. And then there are a 

bunch of other smaller percentage reasons. They don’t add up to 

100 but you know what I mean. So are the two that are worthy 

of major focus. What was interesting is that the 21 other counties 

that we polled had about total-wise the same percentage as Cuyahoga did so we think our studies in Cuyahoga do, indeed, apply to 

the rest of Ohio. 

We know, for instance, that voters were in—in Cuyahoga one 

study, not by me but by another person, found that voters were in 

their correct polling place. Many, half of those rejected, must have 

been directed to the wrong precinct table. Whether they went there 

or the poll workers sent them there is another matter. Others received incorrect precinct location information. This can be fixed. 

Then others voted provisionally in despair because they simply 

didn’t have time to go to a different precinct. 

I would like to say, and I have presented you a graph in the written testimony, that shows that the percentage of rejected ballots in 

the 88 counties is about the same in counties that voted more for 

331 

Bush than for Kerry as they are in the counties that voted, the percentage of rejections. 

If you look at across that graph that I present to you, you will 

see by I that if the county was more than 50 percent, say, for Bush, 

their rejection rates county by county were about the same as those 

counties that were more than 50 percent for Kerry. In other words, 

this issue of rejection of provisional ballots is a bipartisan issue. 

Voters of both sides have been affected. 

That is not to say that it is equal across the population, however, 

and that is a longer story. I don’t have time but it is laid out. It 

is common sense but it also fits with census data that there are 

certain subpopulations that move a lot. We all know that. 

Those are youth, people—this is just U.S. Government Census data—youth, people who earn less than $25,000 a year whether 

they live in Appalachia or Cleveland probably, and minorities, African-American and Hispanic. Those communities move more and we 

made an estimate that every time you move you are at a 6 percent 

risk—that is just a broad number—of not getting registered correctly because of everything you have to go through. 

The bottom line of everything I have to say, though, is that we 

still have practices that tend to disenfranchise legitimate voters. 

Reasonable and often inexpensive solutions are available. This is 

not rocket science. There are good solutions out there. Thirdly, fairminded Americans want to include every eligible voter. All we need 

is the political will. Thank you. 

The CHAIRMAN. Thank you. 

[The statement of Mr. Robbins follows:] 

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The CHAIRMAN. I have a question. I will ask one and then I will 

defer to the gentlelady. Provisional ballots. Not to beat a dead 

horse, but provisional ballots were the most important mechanism 

to stop disenfranchisement. Now I think what I am hearing today 

is that the Help America Vote Act, for the most part, by instituting 

this policy, did its job to make provisional ballots national. 

I know that a newspaper called me from Texas and said, ‘‘Aren’t 

you worried you are going to hold up an election and it will take 

a few days to decide?’’ You know what? I am going to take a few 

days to decide, and people want to know that their votes count, especially in a close election. I don’t think it has to be decided by that 

evening at midnight that you have to have your winner. It is more 

important to take as long as you need to make sure that the winner is the proper winner, and it is done as fairly as possible. 

The goals of HAVA remain the same in Ohio as they are across 

the nation. It is the chief objective of HAVA to have provisional 

ballots work. What you are saying is that either there needs to be 

some fine tuning here within the state or do we need to have fine 

tuning federally within the state of Ohio and the other states? Both 

Mr. Robbins and Mr. Foley raised this issue. 

Mr. FOLEY. Mr. Chairman, yes. Thank you. I think we certainly 

need state legislation. There could be some fine tuning at the federal level for the following reason. HAVA uses the term eligibility 

under state law. In other words, states must count a provisional 

ballot towards the certified result if the voter is eligible under state 

law. That is subsection A.4 of section 302. 

It does not use the term registered. That same section 302 uses 

the word registered elsewhere so what we were seeing in Ohio in 

terms of the 6,000 lawyers who were coming to the state on both 

sides in preparation for possible litigation was to attempt to develop an argument, and there are arguments on both sides, as to 

whether eligible was different from registered or the same as registered as a matter of federal law. 

The most significant issue that we were lucky enough to avoid 

but we might have had was tens of thousands of ballots, provisional ballots, were in the category of individuals whose registration forms, these were new registrants who had submitted incomplete registration forms for one reason or another so they were not 

on the registration rolls. 

They had not been given an opportunity to correct or supplement 

the missing information but they were qualified voters under state 

law in the sense that they were citizens. They were not felons. 

They were over the age of 18. On one theory they were eligible to 

vote but they weren’t registered so there are arguments on both 

sides of this issue and, frankly, plausible arguments. 

I could make a judgement as to which was the better argument 

but we were going to see litigation on both sides of that. That issue 

is out there for the next election as to how to interpret federal law. 

It is analogous to the question of meaning of jurisdiction. We did 

get the 6th Circuit decision on jurisdiction. 

We don’t yet have case law on the meaning of eligibility because 

that just didn’t come up. It didn’t need to be tested. If there was 

a desire on the part of Congress to avoid possible litigation over 

350 

HAVA, I would point to this language as a way to clarify the meaning of HAVA to avoid a potential litigation on that. 

The other point, if I might quickly say, I agree very much with 

the Chair that we can take more than just election night. It seems 

to me that the concept of certification is going to occur of necessity 

at least two or three weeks after an election. We have to wait for 

the overseas ballots to come in. What we saw in Ohio with over 

150,000 provisional ballots statewide was a process that took more 

than just a couple of weeks. 

We didn’t have the counties reporting to the states until Monday, 

December 3rd. We didn’t have statewide certification until—I am 

sorry, Friday, December 3rd. We had statewide certification Monday, December 6th. Safe harbor date this year was Tuesday, December 7th. There would have been no time whatsoever to have a 

recount or a contest had one been a necessity in terms of a close 

election. 

It took all of that five-week period simply to evaluate provisional 

ballot eligibility. If we, again, use the analogy of the Washington 

Governor’s race, if the Washington Governor’s race had been shut 

down on safe harbor date, December 7th, the Republican candidate 

Rossi would have been inaugurated because on that date he was 

still ahead after the first machine recount. Washington is still 

working through their process. They didn’t finish their recount 

until New Year’s Eve so we got a different inauguration as a result 

of that and—— 

The CHAIRMAN. I think we have been through three recounts. 

Mr. FOLEY. So it is true that we can take more than a day or 

two but in a presidential race we have only got a total of five weeks 

and then Bush v. Gore tells us that the process has to stop because 

of the safe harbor. 

Mr. ROBBINS. I would like to respond to your question about federal versus state handling of provisional ballots. I do have detailed 

in my written testimony several suggestions that I do believe are 

more general. That is, they don’t give specifics, which states could 

supply, but they would give general and uniform requirements 

across states for at least federal elections, such as that voters 

should really know whether or not they are registered properly. 

There should be websites and public instructors, for instance, at 

public libraries or elsewhere that would get out to voters long before the registration deadline whether or not they are effectively 

registered. If they are not, voters can take corrective action. That 

should be a general requirement and there should be a certain time 

limit so that this gets done, perhaps with assistance from HAVA 

for this. Secondly, for instance—— 

The CHAIRMAN. I am sorry. Assistance in? 

Mr. ROBBINS. I think that there could be, for instance, advertisements, television ads, radio ads that would be generic, that could 

be adapted to states, that the federal funds could help supply and 

then at the local level would help get out the word. The EAC, for 

instance, could help states or counties devise websites to check registration or precinct. That way, each county would not have to reinvent the wheel to have an excellent website. 

The voter could go to the websites or to public libraries where 

noncomputer literate type people could go. The librarians could be 

351 

trained to help people answer, ‘‘Am I registered correctly?’’ We did 

this in Cuyahoga County. We also put out radio ads when we found 

out that people’s registrations sometimes were accidentally not 

even entered after they were handed into the Board of Elections. 

Our organization kept careful records of our registrations. Some 

never got on the rolls through clerical error, or were entered incorrectly, we found. We have all the numbers and data on this for 

Cuyahoga County. I am not saying that Cuyahoga County was any 

worse than the rest of the counties in Ohio. I don’t believe so. 

I think those election officials in general were excellent, and did 

their job as well as they could. There should be federal assistance 

and a requirement that there be this kind of notification and voter 

education. There should be uniform standards. For instance, we 

found that voters were getting dropped, as I mentioned before. 

We checked through computer tracing and found that some people who were on the rolls as of August or in October or November, 

ended up with rejected provisional ballots because of being not registered. They had been on the rolls. 

The CHAIRMAN. They were rejected provisional ballots? 

Mr. ROBBINS. Yes. That is how we located them. We did a computer search starting with ballots that had been rejected for the 

reason of not being registered. We started with those names in 

Cuyahoga County. We just used the Cuyahoga County database. 

Then we asked, had those people, the same people, been on the roll 

proviously. In one case we had a registration list from August. In 

another case a registration list from late October. 

We asked had they been on the regular registration list that was 

given to us by the County Board of Elections. The answer was that 

we discovered over 900 people just within Cuyahoga County who 

fit this category. That is, they had been on the rolls in August or 

October and for no reason we could understand were rejected—they 

weren’t dead if they showed up on election day and they weren’t 

incarcerated. 

The CHAIRMAN. Just for my information, they were given a provisional ballot but it wasn’t counted. 

Mr. ROBBINS. It was rejected. 

The CHAIRMAN. They were given the actual—— 

Mr. ROBBINS. They had voted provisionally thinking that they 

were registered because they understood that they were registered. 

They had no reason to believe they were not. Over 900 people that 

we found had been on the rolls at these earlier times. I can go into 

more detail on this if you would like but the bottom line is that 

we submitted all these names and addresses to the County Board 

of Elections at Cuyahoga County. 

We never got an answer. We wanted them to check our information. We submitted them in November, early November. We have 

not received an answer from them. We presented this to the Board 

of Elections and they did nothing with it. 

The CHAIRMAN. Due to the time, I would like to follow up with 

you. 

Mr. ROBBINS. By all means, sir. 

The CHAIRMAN. Gentlelady. 

Ms. TUBBS-JONES. Mr. Chairman, I just want to again echo my 

colleagues’ thanks for us having this hearing today. I have to say 

352 

for the record, Mr. Robbins and I worked very, very hard before the 

election trying to get as many people legitimately registered, legitimately at the right voting place. We did radio and we did all kinds 

of things working with Mr. Michael Vu at the Board of Elections 

trying to cure. There are accusations flying that we weren’t trying 

to get people to do legitimate things. We were really working very 

hard and I just want to compliment Mr. Robbins for all the work 

that he did, he and his organization, The Greater Cleveland Voter 

Registration Coalition, as well as Mr. Vu, the Director of the Board 

of Elections. 

Our claims, our efforts have been nothing but above ground in 

an effort to assure that every vote counted and I just want to thank 

him for his testimony. I am not going to ask anymore questions because Mr. Robbins and I have been in so many meetings together 

that I have no questions for him. I would offer him or Mr. Foley 

or Mr. Hearme—I am sorry. I don’t have my glasses on. 

Mr. HEARNE. Hearne. 

Ms. TUBBS-JONES. Hearne. I am sorry, Mr. Hearne—an opportunity to offer anything. In view of the time constraints I would 

hope that it would be limited. Then I am going to give it back to 

you, Mr. Chairman. 

Mr. ROBBINS. Can I just say one 30-second thing as a follow-up 

to what you have asked and then I am going to yield to everybody 

else. I am a scientist and from another field but, nonetheless, that 

is why I ask these questions. That is why I ended up doing these 

studies this year because that is how I think. 

What struck me today and all through the last few months is 

that there have been a ton of anecdotes and almost no research. 

I think there is a desperate need. This research we did was done 

on a shoestring with volunteers and minimum resources. This is 

not NIH research yet and look what we found. Nobody else seems 

to have been doing this kind of work. We desperately need research 

on all of these many issues that have been raised today. 

For instance, what are the real causes and effects of long lines, 

how many voters were actually disenfranchised, how long did they 

take to vote. That would be one set of questions. Does showing an 

ID increase the reliability of a vote or does it disenfranchise people? Those are answerable questions. How many people truly have 

been convicted of election fraud? What do we really know about 

this in terms of cases and convictions? Not anecdotes because, of 

course, there will always be outrageous things. My appeal is that 

you fund research on these topics so you are not making legislation 

on the basis of allegations and anecdotes. 

The CHAIRMAN. Which comes to my question. In politics that is 

called, at least in Washington, there is indeed a need to research 

our legislation. 

Mr. Hearne, you reference about the calls about the date and 

place of the election. Do you reference it in your testimony? 

Mr. Hearne. Yes, I do. Let me first address your question, Mr. 

Chairman. The report that we submitted is exactly what Mr. Robbins suggested. It is facts. It is not anecdotes. It is absolute factual 

document. It has first-hand news accounts. It has different court 

cases. It has different affidavits of different people. It is all firsthand accounts of what happened during this presidential election 

353 

in Ohio in 2004 dealing with the role of a third-party organization 

trying to influence the result. In answer to your question, Mr. 

Chairman—— 

Ms. TUBBS-JONES. Can I just ask one quick question? Those are 

parties on both the Republican and Democratic side? 

Mr. HEARNE. This report concerns all the litigation. It comes 

from, as I mentioned, 12 different lawyers participated in this. 

Multiple different law firms were involved in an overview of the 

conduct of the litigation. 

Mr. Chairman, to your question, the Ranking Minority Member 

this afternoon asked, and there was some discussion, back and 

forth with Secretary Blackwell about phone calls in which somebody was directed to the wrong polling place and people were told 

that the election would be on the 3rd of November instead of the 

2nd. Obviously an official effort to misinform voters with the intention that they not vote is a great concern. That actually is a factual 

account. 

If some people didn’t know about that we have provided in this 

report the court documents documenting that situation. What actually happened is that there was an organization in Marion County, 

it was actually the Kerry campaign, that was involved in making 

these telephone calls. This involved litigation in Common Pleas 

Court in Marion County. Phone calls were made by the compaign 

and others. A local Democrat Party official in Marion County said 

that they shouldn’t be making those calls. We have an affidavit 

from an official of that party attesting to this process. The judge, 

in fact, when the case was first decided was one who received the 

call. The fact that this was going on isn’t just an anecdote. 

One of these deceptive phone calls was received by the judge who 

was first set to hear the case. He assigned it to another judge because he received the call. Then that second judge entered an injunction against the Kerry Campaign and others to prevent that 

kind of activity. These are the kind of things that are documented. 

That is something that did, in fact, happen. That is not just an 

urban legend here in Ohio. 

Ms. TUBBS-JONES. And you have that document from someone 

verifying that the Kerry Campaign paid for those calls? 

Mr. HEARNE. Congresswoman, it is an affidavit of the Marion 

County Chairman of the Democrat Party that is part of that court 

litigation as well as the people who received the calls. All those 

documents are in the report as exhibits. 

The CHAIRMAN. I don’t have any additional questions. 

Ms. TUBBS-JONES. Mr. Foley, you look like you want to say something so go right ahead. 

Mr. FOLEY. If that is okay. As an academic I would have to echo 

the notion that more research would be good. Specifically on the 

notion of what I referred to as the usage rates on provisional ballots. Of all the ballots in a particular state, absentee, regular ballots, etc., what percentage of the total vote ballots were 

provisionals? 

That is the information that has not been studied very well. 

Electionline.org did a great report that just came out a few days 

ago but they focused on some other matters. It seems to me that 

one thing that Congress may want to encourage the EAC to look 

354 

at is why did Ohio have almost 3 percent of its ballots be provisional whereas other states like New Mexico and so forth were well 

under 1 percent. Pennsylvania is higher. In other words, the rate 

at which states needed to rely on provisional ballots varied widely 

across the country. It seems to me that is something worthy of 

more research. 

Ms. TUBBS-JONES. Some real quick ones. What is your position, 

Mr. Hearne, on early voting? 

Mr. HEARNE. I think that is—— 

Ms. TUBBS-JONES. Maybe I better not give you the opportunity. 

Do you support early voting? 

Mr. HEARNE. I support whatever makes voting easier and 

also—— 

Ms. TUBBS-JONES. No-excuse registration, absentee ballots? 

Mr. HEARNE. In the words of Kit Bond, it should be easy to vote 

and tough to cheat. We need to balance those two factors. I think 

that you can craft a way to respond to it. 

Ms. TUBBS-JONES. Mr. Foley, what about you? 

Mr. FOLEY. On early voting, yes. I would support early voting. 

Ms. TUBBS-JONES. I would—— 

Mr. FOLEY. Not necessarily two weeks but some form of it. 

Ms. TUBBS-JONES. It was stated earlier that the opportunity that 

people should not—they did not support early voting because voters 

were not educated enough until the last 30 days of an election to 

be able to make a decision. You are an academic. What is your position on that? 

Mr. FOLEY. My thought is to start Saturday morning and run 

through Tuesday night. Again, I would need some more empirical 

data to support that intuition but my thought is that if you had 

four days, that would be a good balance between not doing it too 

early but giving enough people ample time to pick their—— 

Ms. TUBBS-JONES. The question was do you think that voters are 

not educated enough to vote earlier? 

Mr. FOLEY. No, I do not. I think they are informed. 

Ms. TUBBS-JONES. Mr. Robbins, I know your answer. 

Mr. ROBBINS. Yes, I am for early voting. I do want to point out 

that absentee voters who vote from home or a nursing home, can’t 

get to either an optical scanner that gives them feedback or a DRE 

that gives them feedback. Those voters are at a disadvantage. In 

Cuyahoga County in 2000 absentee voters had a 4 percent over/ 

under vote rate versus the overall county rate of about 2 percent. 

Absentee voters who vote from home don’t have the advantage of 

a machine with feedback of any kind, and are at a disadvantage 

and need extra education. That is a recommendation. 

The CHAIRMAN. Thank you. 

Mr. FOLEY. Two very quick points. One is as the centralized 

statewide registration database goes forward and it is implemented 

in ’06, I think both Congress and EAC should look at how those 

lists get verified. My understanding is that states are in different 

places on this and some are in better place than others but however well they are doing, there has to be a process by which voters 

can say, ‘‘Hey, a mistake was made. I should be on that list. I am 

not on that list.’’ I don’t see that yet in legislation either at the federal or state level. Secondly—— 

355 

The CHAIRMAN. You don’t see that in legislation. You have 

verification. 

Mr. FOLEY. I understand the HAVA mandate is to create the 

database. I have not seen in HAVA, and correct me if I am wrong, 

a requirement that states have a process for giving voters the opportunity to correct mistakes in that database. I don’t also see the 

states themselves putting those processes into place as they assemble their database. 

What I have in mind, and I would be happy to do this in any 

form that would be helpful to the Committee, is a procedure for notifying local boards saying, ‘‘I think I am a registered voter. I submitted a form but I don’t see my name on your list.’’ If that can 

be done again in September and October, I think that would be 

helpful but I don’t see those procedures in state law or in federal 

law. 

The CHAIRMAN. We researched some of this with Democrat and 

Republican staff. We went over and talked to seasoned voters and 

found out, some interesting things. For example, the state of Virginia sends you an e-mail, if you have e-mail which contains a ballot. 

Then you print it out in your office or the American Embassy. 

You fill it out and then mail it back. We can look towards the scientific side, the research side, the statistical side. Even though 

today we can’t go over every aspect, I think it is well worth it to 

look at the database and how it is going to be implemented, which 

I believe addresses your point. We can put it in place under the law 

but how is it actually carried out? The centralized database is probably the more statistical part of the bill. 

Mr. FOLEY. Correct. Related to that, as I understand it, the provisional voting idea was an important idea in response to inaccurate purging. What we saw, unfortunately, in Ohio was uncertainty as to what list local officials should go back to to make sure 

people weren’t purged. Some counties were simply going to their 

most current list and saying, ‘‘If you are not on that list, your provisional ballot doesn’t count.’’ 

In other words, there was lack of clarity as to what mechanism 

needed to take place when you took in that provisional ballot. How 

do you check to see whether a purge had occurred or not? Again, 

as we implement the databases, I think technologically one thing 

that can happen is there could be a requirement that the database 

preserve all historical records so that if you were ever on the list, 

that is maintained so even if subsequently someone is removed 

from the roles, there is an historical electronic archive of previous 

iterations of the statewide database. That would be a good measure. 

The CHAIRMAN. We seek the advice of the community. Tomorrow 

morning, if you use your ATM, you can bet that your bank knows 

your transaction amount to the penny. Not two cents or three. 

They know to the penny, and eventually you can do it with the voters to make sure that they know it is fair and accurate. 

Ms. TUBBS-JONES. All you have to do is send this one little e-mail 

to Iraq and Afghanistan to guarantee folks. 

The CHAIRMAN. One point on that. I can remember people saying, ‘‘You’ve got to be kidding. $3.9 billion is too much money.’’ For 

356 

example, we spent $5 billion on overseas democracy. I have no 

quibble with that and my colleague doesn’t either. It helps build 

democracy. If we can spend $5 billion over there, we can spend $3.9 billion 

here. I don’t think it is too much. People down the road will feel 

good about this, and have the confidence that their vote was fair 

and counted. As Kit Bond said, easier to vote and harder to cheat. 

With that I want to thank our—— 

Ms. TUBBS-JONES. Before we close, Mr. Chairman, again, on behalf of both the Republican and Democratic side, we want to thank 

you for hosting this hearing and giving us an opportunity to begin 

query and having fun with us but being serious as well so thank 

you, Mr. Chairman. We really appreciate it. 

The CHAIRMAN. I want to thank our Ranking Member, but also 

my colleague from Cuyahoga County, Stephanie Tubbs Jones, who 

has also participated in D.C. with us on these issues. I think it is 

a good healthy thing that has happened here today. I appreciate 

all of your time. I ask for unanimous consent that members and 

witnesses have seven legislative days to submit material to the 

record, for those statements and materials to be entered in the appropriate place in the record. Without objection, the material will 

be entered. 

I asked for unanimous consent that the staff be authorized to 

make technical and confirming changes on all matters considered 

by the Committee for this hearing without objection. So ordered. 

Having completed our business for today, I want to thank you 

again, the last panel, for being so patient. This hearing is adjourned. Thank you. 

[Whereupon, at 6:35 p.m. the committee adjourned.] 

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